2007/479/EC: Commission Decision of 25 June 2007 on the compatibility with Community law of measures taken by Belgium pursuant to Article 3a(1) of Council Directive 89/552/EEC on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities
Date: 2007-06-25
Institutions: European Commission
Subjects: Belgium, EU law - national law, audiovisual communications policy, broadcasting, cultural event, sporting event, television

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COMMISSION DECISION

of 25 June 2007

on the compatibility with Community law of measures taken by Belgium pursuant to Article 3a(1)
of Council Directive 89/552/EEC on the coordination of certain provisions laid down by law,
television
regulation or administrative action in Member States concerning the pursuit of

broadcasting activities

(2007/479/EC)

THE COMMISSION OF THE EUROPEAN COMMUNITIES,

Having regard to the Treaty
Community,

establishing the European

Having regard to Council Directive 89/552/EEC on the coordi-
nation of certain provisions laid down by law, regulation or
administrative action in Member States concerning the pursuit
of television broadcasting activities (1), and in particular Article
3a(2) thereof,

Having regard to the opinion of the Committee established
pursuant to Article 23a of Directive 89/552/EEC,

Whereas:

(1)

(2)

(3)

(4)

(5)

By letter of 10 December 2003, Belgium notified to the
Commission measures to be taken pursuant to Article
3a(1) of Directive 89/552/EEC.

The Commission verified, within three months from this
that such measures are compatible with
notification,
Community law,
the pro-
portionality of
the measures and the transparency of
the national consultation procedure.

in particular as

regards

In its examination,
the Commission took into con-
sideration the available data on the Belgian media
landscape.

The list of events of major
importance for society
included in the Belgian measures was drawn up in a
clear and transparent manner and a far-reaching consul-
tation process had been launched in Belgium.

The Commission was satisfied that the events listed in
the Belgian measures met at least two of the following
the
criteria considered to be reliable indicators of
importance of events for society:
(i) a special general
resonance within the Member State, and not simply a
significance to those who ordinarily follow the sport or
(ii) a generally recognised, distinct
activity concerned;
importance for the population in the Member
cultural
State, in particular as a catalyst of cultural identity; (iii)

(1) OJ L 298, 17.10.1989, p. 23. Directive as amended by Directive
97/36/EC of the European Parliament and of the Council (OJ L 202,
30.7.1997, p. 60).

(6)

(7)

(8)

(9)

(10)

involvement of the national team in the event concerned
in the context of a competition or tournament of inter-
national importance; and (iv) the fact that the event has
traditionally been broadcast on free television and has
commanded large television audiences.

A number of the events listed in the Belgian measures,
including the summer and winter Olympic Games as well
as the World Cup Finals and the European Football
Championship Finals tournaments (men), fall within the
category of events traditionally considered to be of major
importance for society, as referred to explicitly in recital
18 of Directive 97/36/EC. These events have a special
general resonance in Belgium, as they are particularly
popular with the general public, not
just with those
who usually follow sport events.

Given that
is
the Belgian Football Cup Final
intended to bring together the two best Belgian clubs
is
and ends in the award of a trophy (the Cup),
popular
those normally
following sport events, and has thus special general
resonance in Belgium.

far beyond the

ranks of

(men)

it

The listed football events involving national teams have a
special general resonance in Belgium as they give Belgian
teams the opportunity to promote Belgian football at
international level.

The finals and semi-finals of the Champions League and
resonance in
the UEFA Cup have a special general
Belgium given the popularity of
in Belgium
and the prestige of those matches, which are followed
by the general public, and not only by those who usually
follow sport events.

football

Road cycling is a popular sport in Belgium. Part of the
Tour de France (men), the most important cycling event
in the world, takes place in Belgium. The Belgian Road
Cycling Championship (men) has a special general
resonance in Belgium as
the professional
cycling season, followed by the general public and the
Belgian media. The other listed cycling events have a
special general resonance in Belgium given the usual
success of Belgian participants at
level.
The listed international cycling events taking place in
Belgium also provide
an opportunity to promote
Belgium as a country.

international

it closes

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(11)

(12)

(13)

(14)

(15)

(16)

(17)

(18)

the Golden
The Ivo Van Damme Memorial, part of
League, has a special general
resonance in Belgium
given that it is an international highlevel athletics event
held in Belgium to commemorate a great Belgian athlete
and combining sport and music, so it is very popular
with the general public.

The listed parts of the World Athletics Championships
involving Belgian players have
general
resonance in Belgium as they represent an opportunity
for Belgian athletes to compete at international level.

special

a

portionate so as to distort competition on the down-
stream free television and pay-television markets.

(19) After communication by the Commission to the other
Member States of the Belgian measures and consultation
of the Committee established pursuant to Article 23a of
Directive 89/552/EEC, the Director-General for Education
and Culture informed Belgium, by letter of 7 April 2004,
that the European Commission did not intend to object
to the measures notified.

The Belgian Formula 1 Grand Prix has a special general
resonance as it promotes an especially beautiful Belgian
circuit, which is an object of particular national pride.

The listed tennis matches involving national players or
teams have a special general resonance in Belgium in
view of the success of Belgian tennis players at inter-
national level.

The final of the Queen Elisabeth Music Competition has
a distinct cultural
importance as a catalyst of Belgian
identity, due to the important contribution of
cultural
to
Queen Elisabeth and her husband King Albert
Belgian history and to the extremely high quality and
the worldwide significance of that cultural event.

(20)

(21)

(22)

the

The listed events, including those to be considered as a
whole, and not as a series of individual events, have
traditionally been broadcast on free television and have
commanded large television audiences. Where, excep-
tionally, no specific viewing data is available (European
Football Championship Finals tournament), the inclusion
justified by its generally
further
of
recognised, distinct cultural
importance for the Belgian
population, given its important contribution to under-
standing between peoples, as well as the importance of
football for the Belgian society as a whole and for the
national pride, as it provides the occasion for top Belgian
sportsmen to succeed in this important
international
competition.

event

is

The Belgian measures appear proportionate so as to
justify a derogation from the fundamental EC Treaty
freedom to provide services on the basis of an overriding
reason of public interest, which is to ensure wide public
access to broadcasts of events of major importance for
society.

The Belgian measures are compatible with EC compe-
tition rules in that the definition of qualified broadcasters
for the broadcasting of listed events is based on objective
criteria that allow actual and potential competition for
the acquisition of the rights to broadcast these events. In
listed events is not dispro-
addition,

the number of

The Belgian measures were adopted in the Flemish
Community on 28 May 2004 and in the French
Community on 8 June 2004.

Those measures were published in the C Series of the
in accordance
Official
with Article 3a(2) of Directive 89/552/EEC.

the European Union (1)

Journal of

follows from the judgment of

the Court of First
It
Instance in Case T-33/01, Infront WM v Commission,
that
to
the declaration that measures taken pursuant
Article 3a(1) of Directive 89/552/EEC are compatible
with Community law constitutes a decision within the
meaning of Article 249 of the EC Treaty, which must
therefore be adopted by the Commission. Accordingly, it
is necessary to declare by this Decision that the measures
notified by Belgium are compatible with Community law.
The measures, as finally taken by Belgium and set out in
the Annex to this Decision, should be published in the
Official
in accordance with Article 3a(2) of
Directive 89/552/EEC,

Journal

HAS DECIDED AS FOLLOWS:

Article 1

The measures pursuant to Article 3a(1) of Directive 89/552/EEC
notified by Belgium to the Commission on 10 December 2003,
as published in the Official Journal of the European Union C 158
of 29 June 2005, are compatible with Community law.

Article 2

The measures, as finally taken by Belgium and set out in the
Annex to this Decision, shall be published in the Official Journal
in accordance with Article 3a(2) of Directive 89/552/EEC.

Done at Brussels, 25 June 2007.

For the Commission

Viviane REDING
Member of the Commission

(1) OJ C 158, 29.6.2005, p. 13.

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ANNEX

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

The measures taken by Belgium to be published pursuant to Article 3a(2) of Directive 89/552/EEC are set out in the
following extracts from instruments adopted respectively by the Flemish and French Communities and published in the
Moniteur Belge:

— for the French Community, in the Decree of 27 February 2003 on broadcasting (MB No 137, 17.4.2003) and the

Order of 8 June 2004 (MB No 318, 6.9.2004);

— for the Flemish Community, in the Decree of 25 January 1995 (DCFL No 1995-01-25/38) and the Order of 28 May

2004 (MB No 295, 19.8.2004).

A consolidated list of events of major importance for Belgium is contained in the agreement concluded between the
French Community and the Flemish Community on 28 November 2003.

FRENCH COMMUNITY

‘1. Broadcasting Decree
[…]

Art. 4 § 1

After consulting the CSA, the Government may adopt a list of events which it considers to be of major importance for
the public of the French Community. Such events may not be subject to the exercise of exclusive rights by a television
broadcaster or by the RTBF, such as to deprive a large part of the public in that Community of access to these events via
a free-access television service.

The Government shall determine whether the events are to be transmitted live, deferred, in full or in excerpts.

Art. 4 § 2

An event is considered to be of major importance for the public of the French Community if it meets at least two of the
following criteria:

1. the event is particularly popular with the public of the French Community in general, not just those who follow such

events as a matter of course;

2. the event has a cultural importance generally recognised by the public of the French Community and is part of that

Community's cultural identity;

3. a Belgian personality or team is participating in the event concerned in the context of a competition or event of

international importance;

4. the event is traditionally broadcast in a programme of a free-access television service in the French Community and

attracts a wide public.

After consulting the CSA, the Government may adopt the procedures by which the abovementioned events have to be
made accessible.

Art. 4 § 3
A television broadcasting service is considered to be “free-access” if it broadcasts in the French language and can be
received by 90 % of households with television reception equipment located in the French-speaking region or the
bilingual Brussels-Capital region. Apart
to
payment other than the subscription price for the basic cable package.

from the technical costs, reception of

this service cannot be subject

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Art. 4 § 4

Television broadcasters and the RTBF shall refrain from exercising any exclusive rights they might have acquired after
30 July 1997, such as would deprive a large part of the public of a Member State of the European Union of access via a
free-access television service to events of major importance, a list of which has been published in the Official Journal of the
European Communities.

They shall comply with the special conditions set at the time of publication of the abovementioned lists, concerning live
or deferred access, in full or in excerpts.

2. Order designating events of major importance and determining the procedures for making them accessible

Article 1

Within the limits laid down in this order, access by the public of the French Community to these events shall be live,
deferred, in full or in excerpts, in accordance with the Annex to this order.

Article 2

A television broadcaster service in the French Community intending to exercise the exclusive broadcasting rights it holds
to an event of major importance must broadcast it on a free-access television service in accordance with the Annex to this
Order.

Article 3

A television broadcaster which has acquired the live-and-in-full transmission rights to an event may nevertheless postpone
the broadcasting of this event on a free-access television broadcasting service in the following cases:

— if the event takes place between midnight and 8 a.m., Belgian time;

— if the event coincides with a news or current affairs programme normally broadcast by the service at that time;

— if the event comprises several elements taking place simultaneously.

Article 4

This Order does not create any broadcasting obligation for the head of RTBF or the television broadcasting services of the
French Community.

Article 5

The Minister for Audiovisual is responsible for the implementation of this Order.

Brussels, 8 June 2004.

For the Government of the French Community

The Minister for Audiovisual

O. CHASTEL

3. Annex to the Order

List of events and categories of events of major importance and arrangements for free public access to them:

Summer and Winter Olympic Games, live and with excerpts;

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Belgian Football Cup Final (men), live and in full;

All matches involving the Belgian men's football team, live and in full;

Football World Cup Finals Tournament (men), live and in full;

European Football Championship, final round (men), live and in full;

Champions League, matches involving Belgian clubs, live and in full;

UEFA Cup, matches involving Belgian clubs, live and in full;

Tour de France, men, professional, live and with excerpts;

Liège-Bastogne-Liège, live and with excerpts;

Amstel Gold Race, live and with excerpts;

Tour of Flanders, live and with excerpts;

Paris-Roubaix, live and with excerpts;

Milan-San Remo, live and with excerpts;

Belgian Road Cycling Championships, professional (men), live and with excerpts;

World Road Cycling Championships, professional (men), live and with excerpts;

Ivo Van Damme Memorial, live and in full;

Belgian Formula 1 Grand Prix, live and in full;

The following Grand Slam tennis tournaments: Roland Garros and Wimbledon, quarter finals, semi-finals and finals
involving a Belgian player, live and in full;

The Davis Cup and the Fed Cup, quarter-finals, semi-finals and finals involving the Belgian team, live and in full;

Queen Elisabeth Music Competition, the final, live and in full;

La Flèche wallonne, live and with excerpts;

World Athletics Championships, where Belgian athletes are taking part, live and in full;

To be annexed to the order of 8 June 2004.

The Minister for Audiovisual

O. CHASTEL’

‘1. Decree of 25 January 1995

Art. 76 § 1

FLEMISH COMMUNITY

The Flemish Government shall draw up a list of events considered to be of major importance for the public and which,
for this reason, may not be broadcast on an exclusive basis so that a large part of the public of the Flemish Community
cannot watch them live or deferred on free-access television.

The Flemish Government shall decide whether these events shall be broadcast via whole or partial live coverage or, where
necessary or appropriate for objective reasons of general interest, via whole or partial deferred coverage.

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Art. 76 § 2

Television broadcasting undertakings of or recognised by the Flemish Community may not exercise the exclusive rights
thus gained such that a large part of the public of another Member State of the European Community cannot without
payment watch the events designated by that Member State wholly or partially live or, where necessary or appropriate for
objective reasons of general interest, wholly or partially deferred, as determined by that Member State.

2. Order of the Flemish Government establishing the list of events of major importance to society […]

Whereas an event can be considered as an event of major importance to society if two of the following conditions are
met:

1. the event has great topical value and attracts considerable public interest;

2. the event is taking place in the context of an important international competition or is a competition in which the

national team, a Belgian club team or one or more Belgian athlete(s) is/are taking part;

3. the event belongs to an important sporting discipline and represents an important cultural asset to the Flemish

Community;

4. the event is broadcast traditionally by free-access television and has a high viewer rating for its category.

[…]

Article 1 § 1

The following events are considered as events of major importance to society:

1. Summer Olympic Games;

2. Football (men): all matches involving the national team and all final-round World Cup and European Championship

matches;

3. Champions League and UEFA Cup:

— matches in which a Belgian club team is playing;

— semi-finals and finals;

4. Belgian Football Cup Final (men);

5. Cycling:

The Tour de France for elite cyclists (men): all stages;

the following World Cup races: Milan-San Remo, Tour of Flanders, Paris-Roubaix, Liège-Bastogne-Liège, Amstel Gold
Race, Paris-Tours and Tour of Lombardy;

the Belgian Championship and the World Championship for elite cyclists (men).

6. Cyclo-cross: the Belgian Championships and World Championships for elite cyclists (men).

7. Tennis:

Grand Slam tournaments: all matches with Belgian players from the quarter-finals onward and all finals (singles);

Davis Cup and Fed Cup: quarter-finals, semi-finals and finals involving Belgian teams.

8. Belgian Formula 1 Grand Prix.

9. Athletics: the Van Damme Memorial.

10. Queen Elisabeth Competition.

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Article 1 § 2

The events referred to under 2, 3, 4, 6, 7, 8, 9 and 10 are made available via whole live coverage.

The events referred to under 1 and 5 are made available via partial live coverage.

Art. 2

The exclusive rights over the events mentioned in Article 1 § 1 may not be exercised in such a way as to prevent a large
part of the population from following these events on free-access television.

A large part of the population of the Flemish Community is considered to be able to follow an event of major
importance to society on free-access television when the event is broadcast by a television station transmitting in the
Dutch language and can be received by at least 90 % of the population without any payment in excess of the television
distribution subscription price.

Art. 3 § 1

Television stations which do not satisfy the requirements of Article 2 and which acquire exclusive transmission rights in
the Dutch-speaking region and the bilingual Brussels-Capital region for the events mentioned in Article 1 § 1 may not
exercise these rights unless they can guarantee, on the basis of contracts concluded, that a large part of the population
will not be prevented from following these events on free-access television as provided for in Articles 1 § 2 and 2.

Art. 3 § 2

Television stations which hold exclusive transmission rights may grant sub-licences, at reasonable market prices
and within time limits to be agreed with the television stations, to television stations which satisfy the requirements of
Article 2.

Art. 3 § 3

If no television station declares itself willing to take sub-licences under these conditions, the television station concerned
may, by way of derogation from Article 2 and Article 3 § l, make use of the transmission rights acquired.

Art. 4

The Flemish Minister with responsibility for media policy shall be responsible for the implementation of this Order.

Brussels, 28 May 2004.

The Minister-President of the Flemish Government

B. SOMERS

The Flemish Minister for Housing, Media and Sport
M. KEULEN’

Consolidated list of events of major importance for Belgium

1. Summer Olympic Games

Flemish Community: live and with excerpts

French Community: live and with excerpts

2. Belgian Football Cup Final (men)

Flemish Community: live and in full

French Community: live and in full

3. All matches involving the Belgian men's football team

Flemish Community: live and in full

French Community: live and in full

4. Football World Cup Finals Tournament (men)

Flemish Community: live and in full

French Community: live and in full

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5. European Football Championship, final round (men)

Flemish Community: live and in full

French Community: live and in full

6. Champion's League, matches involving Belgian clubs

Flemish Community: live and in full

French Community: live and in full

7. UEFA Cup, matches involving Belgian clubs

Flemish Community: live and in full

French Community: live and in full

8. Tour de France, men, professional

Flemish Community: live and with excerpts

French Community: live and with excerpts

9. Liège-Bastogne-Liège

Flemish Community: live and with excerpts

French Community: live and with excerpts

10. Amstel Gold Race

Flemish Community: live and with excerpts

French Community: live and with excerpts

11. Tour of Flanders

Flemish Community: live and with excerpts

French Community: live and with excerpts

12. Paris-Roubaix

Flemish Community: live and with excerpts

French Community: live and with excerpts

13. Milan-San Remo

Flemish Community: live and with excerpts

French Community: live and with excerpts

14. Belgian Road Cycling Championships, professional (men)

Flemish Community: live and with excerpts

French Community: live and with excerpts

15. World Road Cycling Championships, professional (men)

Flemish Community: live and with excerpts

French Community: live and with excerpts

16. Ivo Van Damme Memorial

Flemish Community: live and in full

French Community: live and in full

17. Belgian Formula 1 Grand Prix

Flemish Community: live and in full

French Community: live and in full

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18. The following Grand Slam tennis tournaments: Roland Garros and Wimbledon, quarter-finals, semi-finals and finals

involving a Belgian player

Flemish Community: live and in full

French Community: live and in full

19. The Davis Cup and the Fed Cup, quarter-finals, semi-finals and finals involving the Belgian team

Flemish Community: live and in full

French Community: live and in full

20. Queen Elisabeth Music Competition, the final

Flemish Community: live and in full

French Community: live and in full

Events specific to the French list

1. La Flèche wallonne (live and with excerpts).

2. Winter Olympic Games (live and with excerpts).

3. World Athletics Championships, where Belgian athletes are taking part, live and in full.

Events specific to the Flemish list

1. Champions League: finals and semi-finals, live and in full.

2. UEFA Cup: finals and semi-finals, live and in full.

3. Cycling, Paris-Tours and Tour of Lombardy: live and with excerpts.

4. The Belgian and World Cyclo-cross Championships, men, professional: live and in full.

5. The following Grand Slam tennis tournaments: Australian Open and US Open, quarter-finals, semi-finals and finals

involving a Belgian player, live and in full.