Case C-403/08: Reference for a preliminary ruling from High Court of Justice (Chancery Division) (United Kingdom) made on 17 September 2008 — Football Association Premier League Ltd, NetMed Hellas SA, Multichoice Hellas SA v QC Leisure, David Richardson, AV Station plc, Malcolm Chamberlain, Michael Madden, SR Leisure Ltd, Phillip George Charles Houghton, Derek Owen
Date: 2008-09-17
Institutions: Court of Justice
Subjects: anthem, audiovisual industry, copyright, data transmission, interpretation of the law, professional sport

22.11.2008

EN

Official Journal of the European Union

C 301/19

Other parties to the proceedings: Bundesverband Internationaler
Express- und Kurierdienste eV, UPS Europe NV/SA, Deutsche
Post AG, Federal Republic of Germany

Form of order sought

— set aside the judgment under appeal in its entirety;

— declare, pursuant to Article 61 of the Statute of the Court of
Justice, that the applicant has failed to prove that the deci-
sion infringes Article 87(1) EC, and accordingly dismiss the
application. In the alternative, the Commission asks for the
case to be referred back to the Court of First Instance;

— order the applicant to pay the costs.

Pleas in law and main arguments

The respondent to the appeal is Deutsche Post AG (DPAG), a
large undertaking internationally active in the field of postal
services, which received substantial compensation payments
from State resources. In a separate decision under Article 82 EC
from 2002, which has not been contested, the Commission
found that DPAG had abused its dominant position in the
market by means of prices on the parcels market that did not
cover costs. Since DPAG had made losses everywhere in the
period in question, that aggressive price policy could only have
been financed by the resources the undertaking had received as
financial compensation.

issue in the present appeal

The central
is which method of
analysis the Commission was entitled to apply in the particular
circumstances of the present case in order to find that there was
unlawful aid to DPAG.

According to the method preferred by the Court of First
Instance in the judgment under appeal, all the undertaking's
costs and receipts in the relevant period in connection with the
public interest obligations would have to be examined as to
whether
financial
the undertaking had received excessive
compensation from the State. If there were such overcompensa-
tion, it could be concluded that those resources had also been
used to finance the unfair price policy in the adjacent market of
door-to-door parcel services.

According to the method used in the decision, the deficits in the
adjacent market caused by the unfair price policy are calculated
and it is ascertained whether or not those shortfalls have been
compensated with State resources. If such a compensation is
found and there is no other source of finance (in the form of
the undertaking's own resources), the conclusion is that State
resources have been made use of to finance the unfair price
policy in the adjacent market of door-to-door parcel services.

chain of reasoning which includes the assumption that money
must after all come from somewhere, the existence of unlawful
State aid may be deduced. Neither the chain of reasoning nor
the underlying facts are challenged in the judgment under
appeal. The Court of First Instance nevertheless takes the view
in the judgment under appeal, without further explanation, that
only the former method is possible.

The Commission puts forward the following grounds of appeal.
There is an infringement of Articles 87(1) EC and 86(2) EC, in
so far as those provisions were incorrectly interpreted in the
judgment under appeal as excluding a method, not otherwise
challenged in the judgment under appeal, which makes it
possible to conclude, on the basis of
logical and watertight
reasoning, that State aid incompatible with the common market
is present. The Commission further relies on lack of jurisdiction
of the Court of First Instance and breach of Article 230 EC, in
so far as the Court of First Instance exceeded its powers and
went beyond the power of review provided for in Article 230 EC,
and on Article 36 of the Statute of the Court of Justice, in so
far as the Court of First Instance failed to state reasons for the
unlawfulness of the method used in the decision.

Reference for a preliminary ruling from High Court of
(United Kingdom) made on
Justice (Chancery Division)
17 September 2008 — Football Association Premier League
Ltd, NetMed Hellas SA, Multichoice Hellas SA v QC
Leisure, David Richardson, AV Station plc, Malcolm
Chamberlain, Michael Madden, SR Leisure Ltd, Phillip
George Charles Houghton, Derek Owen

(Case C-403/08)

(2008/C 301/34)

Language of the case: English

Referring court

High Court of Justice (Chancery Division)

Parties to the main proceedings

Applicants: Football Association Premier League Ltd, NetMed
Hellas SA, Multichoice Hellas SA

The Commission regards the method used in its decision as
correct. By means of that method, on the basis of a logical

Defendants: QC Leisure, David Richardson, AV Station plc,
Malcolm Chamberlain, Michael Madden, SR Leisure Ltd, Phillip
George Charles Houghton, Derek Owen

C 301/20

EN

Official Journal of the European Union

22.11.2008

Questions referred

(i) because such devices are to be regarded as giving access
via the broadcast signal to the first undertaking's own
service; or

A. On the interpretation of Directive 98/84/EC of

the
European Parliament and of the Council of 20 November
1998 on the legal protection of services based on, or
consisting of, conditional access (1)

Q1 Illicit device

(a) Where a conditional access device is made by or with the
consent of a service provider and sold subject to a limited
authorisation to use the device only to gain access to the
protected service in particular circumstances, does that
device become an ‘illicit device’ within the meaning of
Article 2(e) of Directive 98/84/EC if it is used to give access
to that protected service in a place or in a manner or by a
person outside the authorisation of the service provider?

(b) What

is the meaning of
Article 2(e) of the Directive?

‘designed or adapted’ within

Q2 Cause of action

When a first service provider transmits programme content in
encoded form to a second service provider who broadcasts that
content on the basis of conditional access, what factors are to
be taken into account in determining whether the interests of
the first provider of a protected service are affected, within the
meaning of Article 5 of Directive 98/84/EC?

In particular:

a

Where
content
first undertaking transmits programme
(comprising visual images, ambient sound and English commen-
tary) in encoded form to a second undertaking which in turn
broadcasts to the public the programme content (to which it
has added its logo and, on occasion, an additional audio
commentary track):

(a) Does the transmission by the first undertaking constitute a
protected service of
‘television broadcasting’ within the
meaning of Article 2(a) of Directive 98/84/EC and
Article 1(a) of Directive 89/552/EEC (2)?

(b) Is it necessary for the first undertaking to be a broadcaster
within the meaning of Article 1(b) of Directive 89/552/EEC
in order to be considered as providing a protected service of
‘television broadcasting’ within the first indent of Article 2(a)
of Directive 98/84/EC?

(c) Is Article 5 of Directive 98/84/EC to be interpreted as
conferring a civil right of action on the first undertaking in
respect of illicit devices which give access to the programme
as broadcast by the second undertaking, either:

(ii) because the first undertaking is the provider of a
protected service whose interests are affected by an
infringing
give
(because
unauthorised access to the protected service provided by
the second undertaking)?

activity

devices

such

(d) Is the answer to (c) affected by whether the first and second
service providers use different decryption systems and
conditional access devices?

Q3 Commercial purposes

Does ‘possession for commercial purposes’ in Article 4(a) of the
Directive relate only to possession for the purposes of commer-
cial dealings in (for example, sales of) illicit devices,

or does it extend to the possession of a device by an end user in
the course of a business of any kind?

B. On the interpretation of Directive 2001/29/EC of the
European Parliament and of the Council of 22 May 2001
on the harmonisation of certain aspects of copyright
and related rights in the information society (3)

Q4 Reproduction Right

Where sequential fragments of a film, musical work or sound
recording (in this case frames of digital video and audio) are
created (i) within the memory of a decoder or (ii) in the case of
a film on a television screen, and the whole work is reproduced
if the sequential fragments are considered together but only a
limited number of fragments exist at any point in time:

(a) Is the question of whether those works have been repro-
duced in whole or in part to be determined by the rules of
national copyright
law relating to what constitutes an
infringing reproduction of a copyright work, or is it a
matter of
interpretation of Article 2 of Directive
2001/29/EC?

(b) If it is a matter of interpretation of Article 2 of Directive
2001/29/EC, should the national court consider all of the
fragments of each work as a whole, or only the limited
number of fragments which exist at any point in time? If
the latter, what test should the national court apply to the
question of whether the works have been reproduced in
part within the meaning of that Article?

(c) Does the reproduction right in Article 2 extend to the crea-

tion of transient images on a television screen?

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Official Journal of the European Union

C 301/21

Q5 Independent economic significance

(a) Are transient copies of a work created within a satellite tele-
vision decoder box or on a television screen linked to the
decoder box, and whose sole purpose is to enable a use of
the work not otherwise restricted by law, to be regarded as
having ‘independent economic
significance’ within the
meaning of Article 5(1) of Directive 2001/29/EC by reason
of the fact that such copies provide the only basis upon
which the rights holder can extract remuneration for the use
of his rights?

(b) Is the answer to Question 5(a) affected by (i) whether the
transient copies have any inherent value; or (ii) whether the
transient copies comprise a small part of a collection of
works and/or other subject matter which otherwise may be
used without infringement of copyright; or (iii) whether the
exclusive licensee of the rights holder in another Member
State has already received remuneration for use of the work
in that Member State?

C. On the interpretation of Council Directive 93/83/EEC of
27 September 1993 on the coordination of certain rules
concerning copyright and rights related to copyright
applicable to satellite broadcasting and cable transmis-
sion (4) and of Articles 28 and 30 and 49 of
the
EC Treaty

Q7 Defence under Directive 93/83

the EC Treaty if national copyright

Is it compatible with Directive 93/83/EEC or with Articles 28
and 30 or 49 of
law
provides that when transient copies of works included in a satel-
lite broadcast are created inside a satellite decoder box or on a
television screen, there is an infringement of copyright under
the law of the country of reception of the broadcast? Does it
affect the position if the broadcast is decoded using a satellite
decoder card which has been issued by the provider of a satellite
broadcasting service in another Member State on the condition
that the satellite decoder card is only authorised for use in that
other Member State?

Q6 Communication to public by wire or wireless means

(a) Is a copyright work communicated to the public by wire or
wireless means within the meaning of Article 3 of Directive
is received at a
2001/29/EC where a satellite broadcast
commercial premises (for example a bar) and communicated
or shown at those premises via a single television screen
and speakers to members of the public present in those
premises?

(b) Is the answer to Question 6(a) affected if:

(i) the members of the public present constitute a new
public not contemplated by the broadcaster (in this case
because a domestic decoder card for use in one
Member State is used for a commercial audience in
another Member State)?

D. On the interpretation of the Treaty rules on free move-
ment of goods and services under Articles 28 and 30
and 49 EC in the context of the CAD

Q8 Defence under Articles 28 and/or 49 EC

(a) If the answer to Q1 is that a conditional access device made
by or with the consent of the service provider becomes an
‘illicit device’ within the meaning of Article 2(e) of Directive
98/84/EC when it is used outside the scope of the authori-
zation of the service provider to give access to a protected
service, what is the specific subject matter of the right by
reference to its essential function conferred by the Condi-
tional Access Directive?

(ii) the members of the public are not a paying audience

according to national law?

(iii) the television broadcast signal is received by an aerial or
satellite dish on the roof of or adjacent to the premises
where the television is situated?

(b) Do Articles 28 or 49 of the EC Treaty preclude enforcement
of a provision of national law in a first Member State which
makes it unlawful to import or sell a satellite decoder card
which has been issued by the provider of a satellite broad-
casting service in another Member State on the condition
that the satellite decoder card is only authorised for use in
that other Member State?

(c) If the answer to any part of (b) is yes, what factors should
be taken into account in determining whether there is a
communication of the work which has originated from a
place where members of the audience are not present?

(c) Is

the answer affected if

the satellite decoder card is
authorised only for private and domestic use in that other
Member State but used for commercial purposes in the first
Member State.

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Official Journal of the European Union

22.11.2008

Q9 Whether the protection afforded to the Anthem can be
any broader than that afforded to the rest of the
broadcast

Reference for a preliminary ruling from the Vestre
Landsret (Denmark)
lodged on 18 September 2008 —
Ingeniørforeningen i Danmark, acting for Bertram Holst v
Dansk Industri, acting for Babcock & Wilcox Vølund ApS

Do Articles 28 and 30 or 49 of the EC Treaty preclude enforce-
ment of a provision of national copyright law which makes it
unlawful to perform or play in public a musical work where
that work is included in a protected service which is accessed
and played in public by use of a satellite decoder card where
that card has been issued by the service provider in another
Member State on the condition that the decoder card is only
authorised for use in that other Member State? Does it make a
difference if the musical work is an unimportant element of the
protected service as a whole and the showing or playing in
public of the other elements of the service are not prevented by
national copyright law?

(Case C-405/08)

(2008/C 301/35)

Language of the case: Danish

E. On the interpretation of the Treaty rules on competi-

tion under Article 81 EC

Referring court

Vestre Landsret

Q10 Defence under Art 81EC

Where a programme content provider enters into a series of
exclusive licences each for the territory of one or more Member
States under which the broadcaster is licensed to broadcast the
programme content only within that
territory (including by
satellite) and a contractual obligation is included in each licence
requiring the broadcaster to prevent its satellite decoder cards
which enable reception of
the licensed programme content
from being used outside the licensed territory, what legal test
should the national court apply and what circumstances should
it take into consideration in deciding whether the contractual
restriction contravenes the prohibition imposed by Article 81(1)?

In particular:

Parties to the main proceedings

Applicant:
Holst

Ingeniørforeningen i Danmark, acting for Bertram

Defendant: Dansk Industri, acting for Babcock & Wilcox Vølund
ApS

(a) must Article 81(1) be interpreted as applying to that obliga-
tion by reason only of it being deemed to have the object of
preventing, restricting or distorting competition?

Question referred

(b) if so, must it also be shown that the contractual obligation
appreciably prevents, restricts or distorts competition in
order
to come within the prohibition imposed by
Article 81(1)?

(1) OJ L 320, p. 54.
(2) Council Directive 89/552/EEC of 3 October 1989 on the coordina-
tion of certain provisions laid down by Law, Regulation or Adminis-
trative Action in Member States concerning the pursuit of television
Broadcasting activities (OJ L 298, p. 23).

(3) OJ L 167, p. 10.
(4) OJ L 248, p. 15.

1. There is disagreement amongst the parties as to whether
Directive 2002/14/EC establishing a general framework for
informing and consulting (1) employees has been correctly
implemented in the Cooperation Agreement between DA
and LO. In that connection, do Community rules preclude
implementation of a directive in such a manner that groups
of employees are covered by a collective agreement between
parties which do not represent the professional group of the
persons concerned and where the collective agreement does
not cover the professional group of the persons concerned?

2. If Directive 2002/14/EC has been correctly implemented for
BH in the Cooperation Agreement between DA and LO, has
Article 7 of the Directive been correctly implemented when
it is established that the Cooperation Agreement does not
contain a high standard of protection against dismissal for
certain professional groups?