2007/476/EC: Commission Decision of 25 June 2007 on the compatibility with Community law of measures taken by Germany 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, Germany, audiovisual communications policy, broadcasting, cultural event, sporting event, television

L 180/8

EN

Official Journal of the European Union

10.7.2007

COMMISSION DECISION

of 25 June 2007

on the compatibility with Community law of measures taken by Germany 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

(2007/476/EC)

THE COMMISSION OF THE EUROPEAN COMMUNITIES,

(5)

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,

(6)

Whereas:

(1)

(2)

(3)

(4)

By letter of 28 April 1999, Germany 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,
that such measures are compatible with
in particular as regards the propor-
Community law,
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 German media
landscape.

The list of events of major
importance for society
included in the German measures was drawn up in a
clear and transparent manner.

(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)

The Commission was satisfied that the events listed in
the German 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
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.

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

to the

remaining

attention given,

the German national

even in the non-
The particular
listed,
events
specialised press,
including the semi-finals and final of the German FA
team’s home and
Cup,
away matches, and the final of any European football
League, UEFA Cup)
club competition (Champions
special
involving a German club,
general resonance in Germany.

to their

football

testifies

The events listed have a generally recognised, distinct
cultural
importance for the German population, given
their important contribution to understanding between
peoples, as well as the importance of sport
for the
German society as a whole and for the national pride,
as they provide the occasion for top German sportsmen
to succeed in these most important international compe-
titions.

10.7.2007

EN

Official Journal of the European Union

L 180/9

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 Germany are compatible with Community
law. The measures, as finally taken by Germany 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 Germany to the Commission on 28 April 1999, as
the European Communities
published in the Official
Journal of
C 277 of 29 September 2000,
compatible with
Community law.

are

Article 2

The measures, as finally taken by Germany 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

The German 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.

(14)

(9)

(10)

The German 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.

(11) After communication by the Commission to the other
Member States of the German measures and consultation
of the Committee established pursuant to Article 23a of
Directive 89/552/EEC, the Director-General for Education
and Culture informed Germany, by letter of 2 July 1999,
that the European Commission did not intend to object
to the measures notified.

(12)

(13)

The German measures entered into force on 1 April
2000. These final measures differed from the measures
notified in 1999 insofar as one event no longer appeared
among the listed events, namely the ‘Cup Winner’s Cup’,
which was because the tournament had been discon-
tinued after being held for the last time in 1998/1999.

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

European Communities (1)

Journal

the

of

(1) OJ C 277, 29.9.2000, p. 4.

L 180/10

EN

Official Journal of the European Union

10.7.2007

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 Germany to be published pursuant to Article 3a(2) of Directive 89/552/EEC are set out in the
following extracts from Article 5a of the Interstate Treaty on Broadcasting, as amended by the Fourth Amending
Interstate Treaty on Broadcasting:

‘Article 5a

Broadcasting major events

1. In the Federal Republic of Germany, events of major importance for society (major events) may be broadcast in
encrypted form on pay-TV only where the broadcaster or a third party makes it possible, under appropriate
conditions, for the event to be broadcast on a free and generally accessible television channel at the same time or,
where individual events running in parallel make this impossible, slightly deferred. Should the parties fail to reach
agreement on appropriate conditions, they shall agree to accept arbitration under Section 1025 et seq. of the Code
of Civil Procedure in due time before the event takes place. Should they be unable to agree on an arbitration
procedure for reasons which must be justified by the television broadcaster or the third party, the broadcast under
paragraph 1 shall be viewed as not made possible under appropriate conditions. Only channels which can be
received by more than two thirds of all households shall be deemed to be generally accessible.

2. For the purposes of these provisions, major events are:

1. The summer and winter Olympic Games;

2. All European Championship and World Cup matches involving the German national football team, as well as

the opening match, the semi-finals and finals, irrespective of whether the German team is involved;

3. The semi-finals and final of the German FA Cup;

4. The German national football team’s home and away matches;

5. The final of any European football club competition (Champions League, UEFA Cup) involving a German club.

Where major events consist of more than one individual event, each event shall be considered to be a major
event. The inclusion or exclusion of events in these provisions is possible only on the basis of an agreement
concluded by all Länder.’