2007/480/EC: Commission Decision of 25 June 2007 on the compatibility with Community law of measures taken by France 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: EU law - national law, France, audiovisual communications policy, broadcasting, cultural event, sporting event, television

10.7.2007

EN

Official Journal of the European Union

L 180/33

COMMISSION DECISION

of 25 June 2007

on the compatibility with Community law of measures taken by France 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

(2007/480/EC)

THE COMMISSION OF THE EUROPEAN COMMUNITIES,

Having regard to the Treaty
Community,

establishing the European

Having regard to 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 (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)

By letter of 30 December 2003, France 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
notification, whether such measures are compatible with
Community law,
the pro-
in particular as
portionality of
the measures and the transparency of
the national consultation procedure.

regards

In its examination, the Commission took into consider-
ation the available data on the French media landscape.

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

(5)

The Commission was satisfied that the events listed in
the French 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
activity concerned;
(ii) a generally recognised, distinct
cultural
importance for the population in the Member
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)

A number of the events listed in the French measures,
including the summer and winter Olympic Games, the
the football
opening match, semi-finals and final of
World Cup as well as the semi-finals and final of the
European Football Championship, fall within the category
traditionally considered to be of major
of
events
referred to explicitly in
importance for
recital 18 of Directive 97/36/EC. These events have a
special general resonance in France, as they are particu-
larly popular with the general public, not just with those
who usually follow sport events.

society, as

including the official
The other listed football events,
team in the
football
the French national
matches of
FIFA calendar,
the UEFA Cup, where a
the final of
French club involved in one of the French championships
is playing, the French football Cup final and the final of
the football Champions’ League, have a special general
resonance in France, as football is the most popular sport
in that country.

Rugby is an important sport and attracts a considerable
audience, particularly in the south-west of France and
the country. The French Rugby
thus a large part of
Championship final,
the European Rugby Cup final
where a French club involved in one of the French cham-
pionships is playing, the Six Nations rugby tournament,
and the semi-finals and final of the Rugby World Cup
therefore have a special general resonance in France.

(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).

(9)

The listed tennis events have a special general resonance
in France as tennis is the most important individual sport
in that Member State.

L 180/34

EN

Official Journal of the European Union

10.7.2007

(10)

(11)

(12)

(13)

(14)

(15)

(16)

(17)

(18)

The French Formula 1 Grand Prix has a special general
resonance in France in view of the importance of this
event for the French racing car industry.

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

The Tour de France (men) has a special general resonance
in France and has a generally recognised, distinct cultural
importance for the population in France as a catalyst of
cultural
is the most
important cycling event in the world. It reflects the popu-
larity of cycling in France and has an important impact
on tourism as an occasion to promote the country.

identity, due to the fact

that

it

The Paris-Roubaix cycling race has a special general
the French
resonance in France as it
heritage.

forms part of

The listed basketball events have a generally recognised,
distinct cultural importance for the population in France,
in particular as a catalyst of cultural identity, given that
basketball is an important factor for social cohesion in
France.

The listed handball events involve the French national
team in a major international tournament and therefore
have considerable cultural
importance for the French
population.

The World Athletics Championship has a generally
importance for the French
recognised, distinct cultural
population,
cultural
as
success of
identity, especially in view of
French participants.

in particular

catalyst of

the usual

a

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

The French 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 French 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

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

(20)

The measures were adopted by France on 22 Decem-
ber 2004.

(21)

follows from the judgment of

It
the Court of First
Instance in Case T-33/01, Infront WM v Commission,
to
the declaration that measures taken pursuant
that
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 France are compatible with Community law.
The measures, as finally taken by France and set out in
the Annex to this Decision, should be published in the
Official Journal of the European Union in accordance with
Article 3a(2) of Directive 89/552/EEC,

HAS DECIDED AS FOLLOWS:

Article 1

The measures pursuant to Article 3a(1) of Directive 89/552/EEC
notified by France to the Commission on 30 December 2003
are compatible with Community law.

Article 2

The measures, as finally taken by France and set out in the
Annex to this Decision, shall be published in the Official
Journal of the European Union 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

10.7.2007

EN

Official Journal of the European Union

L 180/35

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 France to be published pursuant to Article 3a(2) of Directive 89/552/EEC are as follows:

‘Decree No 2004-1392 of 22 December 2004 applying Article 20-2 of Law No 86-1067 of 30 September 1986
on the freedom of communication

The Prime Minister,

Having consulted the report of the Minister for Culture and Communication,

Having regard to 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,
as amended by Directive 97/36/EC of the European Parliament and of the Council of 30 June 1997, and in particular
Article 3a thereof;

Having regard to the European Convention on Cross-Border Television, opened for signature on 5 May 1989, as amended
by the Protocol adopted by the Committee of Ministers of the Council of Europe on 9 September 1998, opened for
acceptance by Parties to the Convention on 1 October 1998, and in particular Article 9(a) thereof, together with Law No
94-542 of 28 June 1994 and Law No 2001-1210 of 20 December 2001, which authorise the approval thereof, and
Decrees No 95-438 of 14 April 1995 and No 2002-739 of 30 April 2002, which published it;

Having regard to the Agreement on the European Economic Area signed at Porto on 2 May 1992 and the Protocol
adjusting the Agreement on the European Economic Area signed at Brussels on 17 March 1993, and in particular Annex
X thereto, together with Law No 93-1274 of 2 December 1993, which authorises the ratification thereof, and Decree No
94-43 of 1 February 1994, which published it;

Having regard to Law No 86-1067 of 30 September 1986, as amended, on the freedom of communication, and in
particular Article 20-2 thereof;

Having regard to the letter of 7 April 2004 from the European Commission on the draft measures communicated by
France for the implementation of Article 3a of Directive 89/552/EEC, as amended by Directive 97/36/EC;

Having consulted the Council of State (Home Affairs section),

HEREBY DECREES AS FOLLOWS:

Article 1 — This Decree lays down the conditions under which television services are to handle the exclusive broad-
casting of events of major importance such that a substantial proportion of the public is not denied the opportunity of
watching them on freeaccess television.

Provisions applicable to the broadcasting of events of major importance on French territory

Article 2 — For the application of this Title, the following definitions apply:

Title I

(a) “freeaccess television service”: any television service that does not seek payment from its users and that can be received

by at least 85 % of households in metropolitan France;

(b) “conditionalaccess television service”: any television service that does not fulfil the two conditions set out in the

previous subparagraph.

L 180/36

EN

Official Journal of the European Union

10.7.2007

Article 3 — The list of events specified in Article 20-2 of Law 86-1067 of 30 September 1986 is as follows:

1. The winter and summer Olympics;

2. Official matches of the French national football team in the Fédération Internationale de Football Association (FIFA)

calendar;

3. The opening match, semi-finals and final of the Football World Cup;

4. The semi-finals and final of the European Football Championship;

5. The final of the UEFA Cup, where a French club involved in one of the French championships is playing;

6. The final of the Football Champions League;

7. The French Football Cup Final;

8. The Six Nations rugby tournament;

9. The semi-finals and final of the Rugby World Cup;

10. The French Rugby Championship final;

11. The European Rugby Cup final, where a French club involved in one of the French championships is playing;

12. The finals of the men’s and women’s singles events of the Roland Garros tennis tournament;

13. The semi-finals and finals of the Davis Cup and the Fed Cup, where the French tennis team is playing;

14. The French Formula 1 Grand Prix;

15. The Tour de France (cycling, men);

16. The Paris-Roubaix cycling race;

17. The men’s and women’s finals of the European Basketball Championship, where the French national team is playing;

18. The men’s and women’s finals of the World Basketball Championship, where the French national team is playing;

19. The men’s and women’s finals of the European Handball Championship, where the French national team is playing;

20. The men’s and women’s finals of the World Handball Championship, where the French national team is playing;

21. The World Athletics Championships.

Article 4 — The exercise by a television service in France of exclusive rights acquired after 23 August 1997 to broadcast
an event of major importance listed in Article 3 may not prevent a freeaccess television service from broadcasting this
event, which should be shown live and in full, except in the following cases:

1. Broadcasting of the event indicated in point 15 of Article 3 may be limited to highlights, in accordance with the

broadcasting tradition for this event;

10.7.2007

EN

Official Journal of the European Union

L 180/37

2. Broadcasting of the events indicated in points 1 and 21 of Article 3 may be limited to representative moments
reflecting the diversity of sporting disciplines and participating countries and may include recorded material when
events take place at the same time;

3. Events of major importance may also be broadcast in pre-recorded form where they take place between midnight and

6 am, French time, on condition that the broadcast in France starts before 10 am;

The fact that a conditionalaccess television service that seeks payment from its users and whose programmes can be
received under the conditions specified in Article 2(a) of this Decree broadcasts an event of major importance live and in
full, subject to the above provisions, without subjecting it to specific conditions for access, is not deemed to constitute an
obstacle to the broadcast of that event by a freeaccess television service.

Article 5 — In order to allow a freeaccess television service to broadcast an event of major importance under the
conditions specified in Article 4, a television service with exclusive broadcasting rights to all or part of an event of major
importance and which does not meet the conditions must, reasonably in advance of the event, inform the freeaccess
television services that it proposes to cede the rights to broadcast this event under the conditions specified in Article 4.
This offer must be made under fair, reasonable and non-discriminatory market conditions and terms.

If, in response to this offer, no proposal is made by a television service or if the proposal is not made according to fair,
reasonable and non-discriminatory market conditions and terms, the television service that holds the exclusive broad-
casting rights may exercise those rights without meeting the conditions of Article 4.

Title II

Provisions applicable to the broadcasting of events of major importance in other European countries
Article 6 — The provisions of this Title shall apply to television services coming under French jurisdiction and broad-
casting to another Member State of the European Union, a member country of the European Economic Area or a State
which is party to the European Convention on Cross-Border Television an event designated by that State as being of
major importance to its society within the meaning of Directive 89/552/EEC of 3 October 1989 and to which they
acquired the broadcasting rights after 23 August 1997.

Article 7 — Television services coming under French jurisdiction shall exercise, in the States specified in Article 6, their
broadcasting rights to events of major importance, as defined by those States, in such a way as not to deny a significant
proportion of the public the option of viewing such events, either live or pre-recorded, via a freeaccess television service
as set out in Article 3a of the aforementioned Directive of 3 October 1989.

Article 8 — Where a television service coming under French jurisdiction broadcasts an event of major importance in
one of the States specified in Article 6, it must comply with the conditions laid down by that State on broadcasting by
the television service.

Title III

Final provisions
Article 9 — Where referred to by a television service, or on its own initiative, the Audiovisual Council may deliver an
opinion on the conditions of application of the provisions of this Decree.

Article 10 — A subsequent Council of State decree shall establish the list of events of major importance and the
conditions of televised broadcasting for the overseas departments Saint Pierre-et-Miquelon, Mayotte, New Caledonia,
French Polynesia and the islands of Wallis and Futuna, taking into account the individual needs of each community
and the technical issues of broadcasting overseas.

Article 11 — The Minister for Culture and Communication and the Minister for Overseas Territories are responsible for
the execution of this Decree, which shall be published in the Official Journal of the French Republic.

Done at Paris, 22 December 2004.

By the Prime Minister:
Jean-Pierre RAFFARIN

Minister for Culture and communication,
Renaud DONNEDIEU DE VABRES

Minister for the Overseas Territories:
Brigitte GIRARDIN.’