2007/478/EC: Commission Decision of 25 June 2007 on the compatibility with Community law of measures taken by Ireland 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, Ireland, audiovisual communications policy, broadcasting, cultural event, sporting event, television

10.7.2007

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Official Journal of the European Union

L 180/17

COMMISSION DECISION

of 25 June 2007

on the compatibility with Community law of measures taken by Ireland 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

(2007/478/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,

(6)

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 7 November 2002, Ireland 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-
the measures and the transparency of
portionality of
the national consultation procedure.

in particular as

regards

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

The list of events of major
importance for society
included in the Irish measures was drawn up in a clear
and transparent manner and a far-reaching consultation
had been launched in Ireland.

The Commission was satisfied that the events listed in
the Irish measures met at least two of the following
criteria considered to be reliable indicators of
the
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

(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).

(7)

(8)

(9)

(ii) a generally recognised, distinct
activity concerned;
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.

society, as

importance for

these tournaments,

A number of the events listed in the Irish measures,
including the summer Olympics,
the World Cup and
European Championship football matches involving the
Irish national team, as well as the opening games, the
semi-finals and the finals of
fall
within the category of events traditionally considered to
referred to
be of major
explicitly in recital 18 of Directive 97/36/EC. These
events have a special general resonance in Ireland, as
they are particularly popular with the general public,
not
just with those who usually follow sport events.
Moreover, Ireland’s games in the World Cup and in the
European Championship have a generally recognised,
cultural
distinct
Irish
as
cultural
identity. Those games act as a focal point for
society at large, helping to create a sense of national
identity and pride in being Irish.

catalyst of

importance

a

Ireland’s home and away qualifying games
in the
European Football Championship and the FIFA World
Cup have
in Ireland,
extending well beyond those who ordinarily follow the
sport.

special general

resonance

a

Gaelic football and hurling are distinctively Irish sports.
Therefore, the All Ireland Senior Inter-County Football
and Hurling Finals have a generally recognised, distinct
cultural importance for the Irish population as a catalyst
of national cultural identity.

entire

country. Therefore,

rugby is played on an organised basis
In Ireland,
Ireland’s
throughout
the
games in the Six Nations Championship and in the
Rugby World Cup finals tournament have a special
Ireland’s
general resonance for the people of
games
tournament
involve the Irish national team in a major international
tournament,
thus having an impact on Irish national
identity.

in the Rugby World Cup finals

Ireland.

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Official Journal of the European Union

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(10)

(11)

(12)

(13)

The special general resonance of the listed horse racing
and equestrian sports events in Ireland results from the
major impact that the Irish horse industry has on rural
communities throughout the country. The Irish Grand
National and the Irish Derby are the most important
horse races in Ireland. Given the importance of horse
racing for tourism and the international reputation of
events have
Ireland,
a generally recognised,
those
distinct cultural
importance for the Irish population as
a catalyst of national cultural identity. The Nations Cup
at the Dublin Horse Show also has a distinct cultural
importance as it promotes the discipline of Irish show
jumping and attracts the strongest teams in the show
jumping world.

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

The Irish 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 Irish measures are compatible with EC competition
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,
listed events is not dispro-
portionate so as to distort competition on the down-
stream free television and pay-television markets.

the number of

(14) After communication by the Commission to the other
Member States of the Irish measures and consultation of
to Article 23a
the Committee established pursuant
of Directive 89/552/EEC,
for
Education and Culture informed Ireland, by letter of
10 February 2003, that the European Commission did
not intend to object to the measures notified.

the Director-General

(15)

The Irish measures were adopted on 13 March 2003.

(16)

(17)

Journal of

Those measures were published in the C Series of the
in accordance
Official
with Article 3a(2) of Directive 89/552/EEC, as amended
by Directive 97/36/EC.

the European Union (1)

follows from the judgment of

It
the Court of First
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 Ireland are compatible with Community law.
The measures, as finally taken by Ireland 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 Ireland to the Commission on 7 November 2002, as
published in the Official Journal of the European Union C 100 of
26 April 2003, are compatible with Community law.

Article 2

The measures, as finally taken by Ireland 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 100, 26.4.2003, p. 12.

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

‘NUMBER 28 OF 1999

Broadcasting (major events television coverage) act, 1999

Arrangement of sections

Section

1.

Interpretation

2. Designation of major events

3. Consultation

4. Broadcasters' duties with respect to designated events

5. Broadcasters' duties with respect to Member States events

6. Civil remedies

7. Reasonable market rates

8. Short title

Acts Referred to

European Communities Act, 1972, No 27

European Communities (Amendment) Act, 1993, No 25

Broadcasting (major events television coverage) act, 1999

An act to provide for television coverage of events of major importance to society, to give effect to Article 3a of Council
Directive 89/552/EEC of 3 October 1989, as amended by Council Directive 97/36/EC of 30 June 1997, and to provide
for other related matters. [13 November 1999] be it enacted by the Oireachtas as follows:

1.

(1) In this Act:

‘broadcaster’ has the meaning assigned in the Council Directive;

‘Council Directive’ means Council Directive 89/552/EEC of 3 October 1989 (1) as amended by Council Directive
97/36/EC of 30 June 1997 (2);

‘EEA Agreement’ has the meaning assigned in the European Communities (Amendment) Act, 1993;

‘event’ means an event of interest to the general public in the European Union, a Member State or in the State or in a
significant part of the State that is organised by an event organiser who is legally entitled to sell the broadcasting
rights to the event;

‘free television service’ means television broadcasting service for the reception of which no charge is made by the
person providing the service;

‘Member State’ means a member state of the European Communities (within the meaning of the European Commu-
nities Act, 1972) and includes a state that is a contracting state to the EEA Agreement;

‘the Minister’ means the Minister for Arts, Heritage, Gaeltacht and the Islands;

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‘near universal coverage’ means:

(a)

free television service, reception of which is available to at least 95 % of the population of the State; or

(b) if at any time fewer than three broadcasters are able to provide the coverage required under paragraph (a), free

television service, reception of which is available to at least 90 % of the population of the State;

‘qualifying broadcaster’ means a broadcaster who is deemed under subsection (2) to be a qualifying broadcaster;

‘television broadcasting’ has the meaning assigned in the Council Directive.

(2) The following broadcasters are deemed to be qualifying broadcasters:

(a) until the 31st day of December, 2001, a broadcaster who provides free television service coverage of a designated

event to which at least 85 % of the population of the State have access;

(b) on and after the 1st day of January, 2002, a broadcaster who provides near universal coverage of a designated

event.

(3) For the purpose of subsection (2), two or more broadcasters who enter into a contract or arrangement to jointly
provide near universal coverage of a designated event shall be deemed to be a single broadcaster with respect to that
event.

(4) A broadcaster may request the Minister to resolve any dispute as to the extent of free television service being provided
by a broadcaster in the State for the purpose of subsection (2) and the definition of ‘near universal coverage’ in
subsection (1).

(5) The Minister may consult with any technical experts or other persons or bodies he/she considers appropriate before

resolving a dispute under subsection (4).

(6) In this Act:

(a) a reference to any enactment shall, unless the context otherwise requires, be construed as a reference to that

enactment as amended or extended by or under any subsequent enactment including this Act;

(b) a reference to a section is a reference to a section of this Act unless it is indicated that reference to some other

enactment is intended; and

(c) a reference to a subsection, paragraph or subparagraph is a reference to the subsection, paragraph or subpara-
graph of the provision in which the reference occurs unless it is indicated that reference to some other provision
is intended.

2.

(1) The Minister may by order:

(a) designate events as events of major importance to society for which the right of a qualifying broadcaster to

provide coverage on free television services should be provided in the public interest; and

(b) determine whether coverage on free television services of an event designated under paragraph (a) should be

available:

(i) on a live, deferred or both live and deferred basis; and

(ii) in whole, in part or both in whole and in part.

(2) The Minister shall have regard to all the circumstances and in particular each of the following criteria in making a

designation under subsection (1)(a):

(a)

the extent to which the event has a special general resonance for the people of Ireland;

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(b) the extent to which the event has a generally recognised distinct cultural importance for the people of Ireland.

(3) In order to determine the extent to which the criteria in subsection (2) have been met, the following factors may be

taken into account by the Minister:

(a) whether the event involves participation by a national or non-national team or by Irish persons;

(b) past practice or experience with regard to television coverage of the event or similar events.

(4) The Minister shall consider the following in making the determination under subsection (1)(b):

(a)

the nature of the event;

(b) the time within the State at which the event takes place;

(c) practical broadcasting considerations.

(5) The Minister may by order revoke or amend an order under this section.

(6) The Minister shall consult with the Minister for Tourism, Sport and Recreation before making, revoking or amending

an order under this section.

(7) Where it is proposed to make, revoke or amend an order under this section, a draft of the order shall be laid before
each House of the Oireachtas and the order shall not be made until a resolution approving the draft has been passed
by each House.

3.

(1) Before making an order under section 2, the Minister shall:

(a) make reasonable efforts to consult with the organisers of the event and with broadcasters who are under the

jurisdiction of the State for the purpose of the Council Directive;

(b) publish a notice of the event which the Minister intends to designate under that section in at least one newspaper

circulating in the State; and

(c)

invite comments on the intended designation from members of the public.

(2) The inability to establish who is the organiser of an event or the failure of the organiser or a broadcaster under the
jurisdiction of the State to respond to the Minister's efforts to consult shall not preclude the making of an order under
section 2.

4.

(1) Where a broadcaster under the jurisdiction of the State who is not a qualifying broadcaster acquires exclusive rights to
broadcast a designated event, that broadcaster shall not broadcast the event unless the event has been made available
to a qualifying broadcaster, in accordance with the order under section 2, on request and the payment of reasonable
market rates by the qualifying broadcaster.

(2) Where a qualifying broadcaster acquires the right to broadcast a designated event (under this section or directly), the
qualifying broadcaster shall broadcast the event on a free television service providing near universal coverage in
accordance with the order under section 2.

(3) In this section, ‘designated event’ means an event that is designated in an order under section 2.

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5.

Where another Member State has designated an event as being of major importance to society in that Member State and
the European Commission has communicated the measures taken by that Member State in accordance with Article 3a(2)
of the Council Directive, no broadcaster under the jurisdiction of the State who acquires exclusive rights to the designated
event shall exercise the exclusive rights in such a way that a substantial portion of the public in that Member State is
deprived of the possibility of following the events in accordance with the measures taken.

6.

(1) Where it is alleged by a broadcaster (the ‘aggrieved broadcaster’) that any activity or conduct prohibited by section 4
or 5 is being, has been or is about to be carried on by one or more other broadcasters (the ‘other broadcaster’), the
aggrieved broadcaster shall be entitled to apply to the High Court for the following remedies against the other
broadcaster:

(a) an order restraining the other broadcaster from carrying on or attempting to carry on the activity or conduct

prohibited by section 4 or 5;

(b) a declaration that the contract under which the other broadcaster received exclusive rights to the designated event

is void;

(c) damages from the other broadcaster;

(d) a direction that the right to provide television coverage of the event shall be offered to the aggrieved broadcaster

at reasonable market rates.

(2) An application to the High Court for an order referred to in subsection (1) shall be by motion and the court, when

considering the matter, may make such interim or interlocutory order as it considers appropriate.

7.

(1) For the purpose of section 4(1), if broadcasters are unable to agree on what constitutes reasonable market rates with
respect to television coverage of an event, either of the broadcasters may apply to the High Court in a summary
manner for an order determining reasonable market rates for an event.

(2) An order under subsection (1) may contain such consequential or supplementary provisions as the High Court

considers appropriate.

8.

This Act may be cited as the Broadcasting (Major Events Television Coverage) Act, 1999.

Statutory Instruments

S.I. No 99 of 2003

Broadcasting (Major Events Television Coverage) Act 1999 (Designation of Major Events) Order

2003

I, Dermot Ahern, Minister for Communications, Marine and Natural Resources, in exercise of the powers conferred on me
by subsection (1) of section 2 of the Broadcasting (Major Events Television Coverage) Act 1999 (No 28 of 1999) and the
Broadcasting (Transfer of Departmental Administration and Ministerial Functions) Order 2002 (S.I. No 302 of 2002) (as
adapted by the Marine and Natural Resources) (Alteration of Name of Department and Title of Minister) Order 2002 (S.I.
No 307 of 2002)) after consultation with the Minister for Arts, Sport and Tourism as provided for by subsection (6) (as
adapted by the Tourism, Sport and Recreation (Alteration of Name of Department, Title of Minister) Order 2002 (S.I. No
307 of 2002)) of that section, hereby make the following order with respect to which, pursuant to subsection (7) of that
section, a draft has been laid before each House of the Oireachtas and a resolution approving the draft has been passed by
each such House:

1. This Order may be cited as the Broadcasting (Major Events Television Coverage) Act 1999 (Designation of Major

Events) Order 2003.

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2. The events specified in the Schedule to this Order are designated as events of major importance to society for which
the right of a qualifying broadcaster to provide coverage on a live basis on free television services should be provided
in the public interest.

3. Each of

Ireland's games in the Six Nations Rugby Football Championship is designated as an event of major
importance to society for which the right of a qualifying broadcaster to provide coverage on a deferred basis on
free television services should be provided in the public interest.

SCHEDULE

Regulation 2

The Summer Olympics

The All-Ireland Senior Inter-County Football and Hurling Finals

Ireland's home and away qualifying games in the European Football Championship and the FIFA World Cup Tour-
naments

Ireland's games in the European Football Championship Finals Tournament and the FIFA World Cup Finals Tour-
nament

The opening games, the semi-finals and final of the European Football Championship Finals and the FIFA World Cup
Finals Tournament

Ireland's games in the Rugby World Cup Finals Tournament

The Irish Grand National and the Irish Derby

The Nations Cup at the Dublin Horse Show

GIVEN under my Official Seal,

13 March 2003.

DERMOT AHERN
Minister for Communications, Marine and Natural Resources.’