2007/477/EC: Commission Decision of 25 June 2007 on the compatibility with Community law of measures taken by Austria 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: Austria, EU law - national law, audiovisual communications policy, broadcasting, cultural event, sporting event, television

10.7.2007

EN

Official Journal of the European Union

L 180/11

COMMISSION DECISION

of 25 June 2007

on the compatibility with Community law of measures taken by Austria 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

(2007/477/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 12 March 2001, Austria 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,
in particular as regards the propor-
tionality of the measures and the transparency of the
national consultation procedure.

In its examination, the Commission took into consid-
eration the
available data on the Austrian media
landscape.

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

The Commission was satisfied that the events listed in
the Austrian measures met at least two of the following
the
criteria considered to be reliable indicators of
(i) a special general
importance of events for society:

(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).

resonance within the Member State, and not simply a
significance to those who ordinarily follow the sport or
activity concerned;
(ii) a generally recognised, distinct
importance for the population in the Member
cultural
State, in particular as a catalyst of cultural identity; (iii)
involvement of the national team in the event concerned
in the context of a competition or tournament of inter-
national importance; and (iv) the fact that the event has
traditionally been broadcast on free television and has
commanded large television audiences.

(6)

(7)

(8)

(9)

A number of the events listed in the Austrian measures,
including the summer and winter Olympic games, the
World Cup and the European Championship football
matches involving the Austrian national team as well
as the opening matches, the semi-finals and the finals
of these 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 Austria, as they are particularly popular
with the general public, not
just with those who
usually follow sport events.

The final of the Austrian Football Cup has a special
is the most
general resonance in Austria, as football
popular sport in that Member State.

The FIS Alpine World Ski Championships and the FIS
Nordic World Ski Championships have a special general
resonance in Austria given that skiing is a very popular
sport forming part of general school sports education in
that Member State. Moreover,
cultural
these events as catalysts of Austrian
importance of
cultural
identity is due to the success of the Austrian
participants in those competitions and to the importance
of skiing tourism in Austria.

the distinct

The Vienna Philharmonic Orchestra’s New Year’s concert
has a distinct cultural
importance as a keystone of
Austrian cultural identity in view of the extremely high
quality of
it
that
commands a very considerable world-wide audience.

this cultural event and the fact

L 180/12

EN

Official Journal of the European Union

10.7.2007

(10)

(11)

(12)

(13)

The Vienna Opera Ball has a special general resonance in
Austria as a ‘popular culture’ event and as a symbol for
the ball season with a specific importance in the Austrian
cultural
this
event to the world-wide reputation of the Vienna State
Opera House, as it usually involves world-famous opera
singers, confirms its distinct cultural
importance for
Austria.

tradition. The important contribution of

(16)

(17)

The listed events have traditionally been broadcast on
free television and have commanded large television
audiences.

The Austrian 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 Austrian 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
addition, the number of listed events is not dispropor-
tionate so as to distort competition on the downstream
free television and pay television markets.

(14) After communication by the Commission to the other
Member States of the Austrian measures and consultation
of the Committee established pursuant to Article 23a of
Directive 89/552/EEC, the Director-General for Education
and Culture informed Austria, by letter of 31 May 2001,
that the European Commission did not intend to object
to the measures notified.

(15)

The Austrian measures entered into force on 1 October
2001.

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

European Communities (1)

Journal

the

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 Austria are compatible with Community law.
The measures, as finally taken by Austria 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 Austria to the Commission on 12 March 2001, as
published in the Official Journal of the European Communities C 16
of 19 January 2002, are compatible with Community law.

Article 2

The measures, as finally taken by Austria 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 16, 19.1.2002, p. 8.

10.7.2007

EN

Official Journal of the European Union

L 180/13

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 Austria to be published pursuant to Article 3a(2) of Directive 89/552/EEC 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
licence-payers and viewers exempted from the licence fee, whereby the
in Austria by at
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.

least 70 % of

(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.

L 180/14

EN

Official Journal of the European Union

10.7.2007

(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

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).

law shall

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 36 000 to
EUR 58 000 from the Federal Communication Senate.

10.7.2007

EN

Official Journal of the European Union

L 180/15

(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)
initiate the
of the Private Television Act, BGBl.
procedure for withdrawing licences or prohibiting cable broadcasts as provided for in § 63 of the Private
Television Act.

I No 84/2001), the Federal Communication Senate shall

[…]

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) may 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);

L 180/16

EN

Official Journal of the European Union

10.7.2007

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.’