Publication in accordance with Article 3(a)(2) of Council Directive 89/552/EEC(1) on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities, as amended by Directive 97/36/EC of the European Parliament and of the Council(2)

(2002/C 16/06)

The measures taken by the Republic of Austria pursuant to Article 3(a)(1) of the Directive and notified to the Commission in accordance with the procedure laid down in Article 3(a)(2) are set out in the following extracts from the Bundesgesetzblatt (/Federal Law Gazette - I No 85/2001 and II No 305/2001): "85. Federal Act on the exercise of exclusive television broadcasting rights (Exclusive Television Rights Act (/Fernseh-Exclusivrechtegesetz - FERG))

The Nationalrat has decreed the following:

Article I

Scope

§ 1. (1) This Act shall, with the exception of § 5, apply only to television broadcasters covered by the Austrian Broadcasting Act (/Österreichischer Rundfunkgesetz - ORF-Gesetz), published in the Federal Law Gazette (BGBl.) No 379/1984, or the /Private Television Act (/Privatfernsehgesetz), BGBl. I No 84/2001.

(2) § 3 shall not apply to television broadcasting rights acquired prior to the entry into force of this Act, unless the underlying agreements were extended after this Act took effect.

Events of substantial social interest

§ 2. An 'event of substantial social interest' shall for the purposes of this Act mean only those events referred to in an Ordinance issued under § 4 hereof.

Obligations of television broadcasters

§ 3. (1) Where a television broadcaster has acquired exclusive broadcasting rights for an event referred to in an Ordinance issued under § 4 hereof, it shall allow the event to be seen on a television channel, freely accessible in Austria, by at least 70 % of licence-payers and viewers exempted from the licence fee, whereby the arrangements set out in the Ordinance (whole or partial live or deferred coverage) shall be complied with. For the purposes of this subparagraph, coverage shall be deemed 'deferred' where no more than 24 hours elapse between the beginning of the event and the beginning of the broadcast.

(2) For the purposes of this Act, 'free-access television channels' shall mean channels which viewers are able to receive without any additional or regular payments for the use of technical equipment for decoding. 'Additional payments' within the meaning of this subparagraph shall not include the licence fee (§ 2 of the Licence Fees Act (/Rundfunkgebührengesetz - RGG)), the programme charge (§ 20 RFG), a cable network connection fee and the standing charge payable to a cable operator.

(3) The obligation referred to in subparagraph (1) shall be deemed to have been met if evidence is provided that the television broadcaster did all that could be reasonably expected under normal market conditions in an attempt to enable the event as referred to in subparagraph (1) to be viewed on free-access television channels. A television broadcaster may, in order to reach an amicable agreement about what constitutes such conditions, refer the matter to the Federal Communication Senate (/Bundeskommunikationssenat). The latter shall involve all parties in efforts to reach a settlement and shall draw up a written record of the negotiations and their outcome.

(4) Where no agreement is reached, the Federal Communication Senate shall, at the request of one of the television broadcasters involved, decide whether the broadcaster concerned has adequately fulfilled its obligations under subparagraphs (1) and (3). In the event that the broadcaster has not adequately fulfilled these obligations, the Federal Communication Senate shall take the place of the broadcaster in determining what is meant by 'normal market conditions' as referred to in subparagraph (3). In particular, the Federal Communication Senate shall lay down an appropriate market price for the granting of broadcasting rights.

(5) A television broadcaster which has not adequately fulfilled its obligations under subparagraph (1) may be sued for damages in a civil action. The claim to damages shall also include compensation for loss of earnings.

(6) Action for damages shall only be permissible once a decision has been given as referred to in subparagraph (4). Without prejudice to subparagraph (7), the court and the parties to the proceedings referred to in subparagraph (4) shall be bound by a non-appealable ruling.

(7) Where, in proceedings referred to in subparagraph (6), the court considers that the decision is unlawful, it shall discontinue the proceedings and file a complaint with the Higher Administrative Court (/Verwaltungsgerichtshof - VwGH) under Article 131 subparagraph (2) of the Federal Constitution (B-VG) requesting a declaratory ruling confirming the unlawfulness of the decision. When a ruling has been issued by the VwGH, the court shall continue its proceedings and rule on the dispute in keeping with the legal view of the VwGH.

Ordinance on events of substantial social interest

§ 4. (1) The Federal Government shall determine, by means of an Ordinance, what events referred to in § 2 are of substantial social interest in Austria. The Ordinance shall include only events which meet at least two of the following criteria:

1. the event already commands widespread attention in Austria, particularly as a result of reports in the media;

2. the event is an expression of Austria's cultural, artistic or social identity;

3. the event is - particularly because of the involvement of top-level Austrian sportsmen/women - a sporting event of special national significance or commands widespread attention among viewers in Austria owing to its international importance;

4. the event has previously been broadcast on free-access television.

(2) The Ordinance shall stipulate whether an event shown on free-access television is to have live or deferred coverage, and whether the whole event or only parts of it are to be broadcast. An event shall be covered live and in full unless there are objective reasons (e.g. different time zones, various events/parts of the same event being organised simultaneously) why it is necessary and appropriate not to provide such coverage.

(3) Before the Ordinance is issued or amended, a cross-section of television broadcasters, holders of rights, the business sector, consumers, employees and persons from the fields of culture and sport shall be consulted. The draft Ordinance shall be published in the official gazette supplement (/Amtsblatt) to the Wiener Zeitung, and provision shall be made for any person to comment on it within a period of eight weeks. The draft shall then be submitted to the European Commission. The Ordinance may only be issued if, within a period of three months following submission to the European Commission, the latter has not raised any objections to its being issued.

[...]

Federal Communication Senate

§ 6. Responsibility for the supervision of the provisions of this Act on points of law shall lie with the Federal Communication Senate in so far as such provisions relate to television broadcasters (§ 11 of the KommAustria Act (KOG), BGBl. I No 32/2001).

Penalties and procedures

§ 7. (1) Any person who infringes obligations under:

1. § 3 subparagraph (1); or

[...]

shall be deemed to have committed an administrative offence and be subject to a fine of EUR 36000 to EUR 58000 from the Federal Communication Senate.

(2) In the procedure provided for in subparagraph (1), the Federal Communication Senate shall conduct a public oral hearing.

(3) The Federal Communication Senate shall apply the 1991 General Administrative Procedures Act (/Allgemeine Verwaltungsverfahrensgesetz 1991) (BGBl. No 51) and, in cases provided for in subparagraph (1), the /1991 Administrative Penalties Act (/Verwaltungsstrafgesetz 1991) (BGBl. No 52).

(4) In the event of repeated and serious infringements of this Act by a television broadcaster (§ 2 subparagraph (1) of the Private Television Act, BGBl. I No 84/2001), the Federal Communication Senate shall initiate the procedure for withdrawing licences or prohibiting cable broadcasts as provided for in § 63 of the Private Television Act.

[...]

Enforcement

§ 9. (1) Enforcement of this Act shall be entrusted to the Federal Government with respect to § 4 subparagraphs (1), (2) and (3), final sentence, to the Minister for Justice with respect to § 3 subparagraphs (5)-(7), and to the Federal Chancellor with respect to all other provisions.

(2) The requirements of the first and second sentences of § 4 subparagraph (3) can be disregarded when an Ordinance is issued for the first time after this Federal Act comes into force, if, as part of the preparation of the notification procedure pursuant to Article 3(a)(1) and (2) of Directive 89/552/EEC as amended by Directive 97/36/EC, the parties concerned have already been consulted and the content of the Ordinance to be issued has been made known in an appropriate manner as part of this consultation.

Note on transposition

§ 10. The provisions of §§ 1-4, §§ 6-9 and § 11 of this Act transpose Article 3(a)(1) of 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 L 298, 17.10.1989, p. 23), as amended by Directive 97/36/EC (OJ L 202, 30.7.1997, p. 60).

[...]

Entry into force

§ 11. This Act shall enter into force on 1 August 2001.

Klestil

Schüssel

305. Ordinance on events of substantial social interest

The following Order is made pursuant to § 4 subparagraph (1) of the Federal Act on the exercise of exclusive television broadcasting rights (Exclusive Television Rights Act (/Fernseh-Exclusivrechtegesetz - FERG)), BGBl. I No 85/2001:

§ 1. Events of substantial social interest are:

1. The Summer or Winter Olympic Games;

2. FIFA World Cup football matches (for men) if the Austrian national team is involved, as well as the opening match, the semi-finals and the final of the football World Cup (for men);

3. European Championship football matches (for men) if the Austrian national team is involved, as well as the opening match, the semi-finals and the final of the football European Championship (for men);

4. The final of the Austrian Football Cup;

5. FIS World Alpine skiing championships;

6. World Nordic skiing championships;

7. The Vienna Philharmonic Orchestra's New Year Concert;

8. The Vienna Opera Ball.

§ 2 (1) Television broadcasters who have obtained exclusive broadcasting rights for the events mentioned in § 1 must ensure that these events can be viewed live and in their entirety on free-access television.

(2) A recorded or partial version of the events in § 1 subparagraphs (1), (5), (6) and (8) may be broadcast if:

1. parts of one of the events under § 1 or more than one of the events mentioned in § 1 take place at the same time; or

2. the event has, in the past, not been broadcast in its entirety because of its length.

§ 3. This Ordinance shall enter into force on 1 October 2001.

Schüssel - Riess-Passer - Ferrero-Waldner - Gehrer - Grasser - Strasser - Böhmdorfer - Molterer - Haupt - Forstinger - Bartenstein."

(1) OJ L 298, 17.10.1989, p. 23.

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