CELEX: 62008CC0403
Language: en
Date: 2011-02-03 00:00:00
Title: Opinion of Advocate General Kokott delivered on 3 February 2011. # Football Association Premier League Ltd and Others v QC Leisure and Others (C-403/08) and Karen Murphy v Media Protection Services Ltd (C-429/08). # References for a preliminary ruling: High Court of Justice (England & Wales), Chancery Division (C-403/08), High Court of Justice (England & Wales), Queen’s Bench Division (Administrative Court) (C-429/08) - United Kingdom. # Satellite broadcasting - Broadcasting of football matches - Reception of the broadcast by means of satellite decoder cards - Satellite decoder cards lawfully placed on the market in one Member State and used in another Member State - Prohibition on marketing and use in a Member State - Visualisation of broadcasts in disregard of the exclusive rights granted - Copyright - Television broadcasting right - Exclusive licences to broadcast in a single Member State - Freedom to provide services - Article 56 TFEU - Competition - Article 101 TFEU - Restriction of competition by object - Protection of services based on conditional access - Illicit device - Directive 98/84/EC - Directive 2001/29/EC - Reproduction of works within the memory of a satellite decoder and on a television screen - Exception to the reproduction right - Communication of works to the public in public houses - Directive 93/83/EEC. # Joined cases C-403/08 and C-429/08.

OPINION OF ADVOCATE GENERAL
      KOKOTT
      delivered on 3 February 2011 (1)
      
      Cases C‑403/08 and C‑429/08
      Football Association Premier League Ltd and Others
      v
      QC Leisure and Others
      (Reference for a preliminary ruling from the High Court of Justice, Chancery Division, United Kingdom)
      
      Karen Murphy
      v
      Media Protection Services Ltd
      (Reference for a preliminary ruling from the High Court of Justice, Administrative Court, United Kingdom)
      (Satellite transmission of football matches – Marketing of decoder cards which have been lawfully placed on the market in other Member States – Directive 98/84/EC – Legal protection of services based on conditional access – Illicit access device – Directive 2001/29/EC – Harmonisation of certain aspects of copyright and related rights in the information society – Reproduction right – Communication to the public – Directive 93/83/EEC – Coordination of certain rules concerning copyright and rights related to copyright applicable to satellite broadcasting and
         cable transmission – Free movement of goods – Freedom to provide services – Competition – Article 101(1) TFEU – Concerted practices – Practice having the object of preventing, restricting or distorting competition – Criteria for assessing the anti‑competitive object of a practice)
      
      
      Table of contents
      
      I –  Introduction
      II –  Legislative context
      A – International law
      1. Berne Convention for the Protection of Literary and Artistic Works
      2. Agreement on Trade-Related Aspects of Intellectual Property Rights
      3. The WIPO Copyright Treaty
      4. Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations
      B – European Union law
      1. Protection of services based on conditional access
      2. Intellectual property in the information society
      3. Intellectual property and satellite broadcasting
      III –  Facts and references for preliminary rulings
      A – Transmission of football matches
      B – Case C‑403/08
      C – Case C‑429/08
      IV –  Legal assessment
      A – Directive 98/84
      B – Directive 2001/29
      1. Reproduction right
      a) Question 4(a) in Case C‑403/08 – national law or European Union law
      b) The application of the reproduction right to live transmissions
      c) Question 4(b) in Case C‑403/08 – Reproduction in the receiver’s memory buffer
      d) Question 4(c) in Case C‑403/08 – Reproduction through display on a screen
      2. Question 5 in Case C‑403/08 – Restriction of the reproduction right
      3. Further communication to the public
      a) Admissibility of the question
      b) The question
      i) The protected works
      ii) The applicability of Article 3(1) of Directive 2001/29
      C – Directive 93/83
      D – The fundamental freedoms
      a) The applicable fundamental freedom
      b) Restriction of freedom to provide services
      c) The justification for the restriction
      d) Justification in the event of the provision of false information in procuring the decoder cards
      e) Effects of the restriction to private or domestic use
      f) Question 9 in Case C‑403/08
      g) Question 7 in Case C‑429/08
      h) Conclusion on Questions 6 and 7 in Case C‑429/08 and on Questions 7, 8(c) and 9 in Case C‑403/08
      E – Competition law
      V –  Conclusion
      
      I –  Introduction
      1.        Protecting the economic interests of authors is becoming increasingly important. Creative works must be properly remunerated.
         
      
      2.        To that end, the Football Association Premier League Ltd (the FAPL), the top English football league’s organisation for marketing
         that league’s matches, seeks to achieve optimal exploitation of the copyright for the live transmission of its football matches.
         It essentially grants its licensees the exclusive right to broadcast and economically exploit the matches within their broadcasting
         area, generally the country in question. In order to safeguard the exclusive rights of other licensees, they are at the same
         time required to prevent their broadcasts from being able to be viewed outside the broadcasting area. 
      
      3.        The main proceedings in the present references for preliminary rulings concern attempts to circumvent this exclusivity. Undertakings
         import decoder cards from abroad, in the present cases from Greece and Arab States, into the United Kingdom and offer them
         to pubs there at more favourable prices than the broadcaster in that State. The FAPL is attempting to stop that practice.
      
      4.        Measures to enforce exclusive broadcasting rights are at odds with the principle of the internal market. It is for that reason
         necessary to examine whether such measures infringe the European Union’s fundamental freedoms or its competition law. 
      
      5.        However, questions also arise with regard to various directives. Directive 98/84/EC on the legal protection of services based
         on, or consisting of, conditional access (2) is of interest because the exclusivity of satellite broadcasts is guaranteed through the encryption of the broadcast signal.
         The FAPL takes the view that the directive prohibits the use of decoder cards outside the area assigned to them. From the
         perspective of the importers, by contrast, the directive justifies the free movement of such cards.
      
      6.        Furthermore, questions are raised concerning the scope of the rights to the broadcasts under Directive 2001/29/EC on the harmonisation
         of certain aspects of copyright and related rights in the information society, (3) namely whether the communication of the broadcasts affects the right to the reproduction of works and whether communication
         in pubs constitutes communication to the public. 
      
      7.        Lastly, questions also arise with regard to the effect of a licence under Directive 93/83/EEC on the coordination of certain
         rules concerning copyright and rights related to copyright applicable to satellite broadcasting and cable retransmission. (4) It will be necessary to examine whether consent to the satellite transmission of a broadcast in one particular Member State
         establishes the right to receive the broadcast and to show it on a screen in another Member State.
      
      II –  Legislative context
      A –    International law
      1.      Berne Convention for the Protection of Literary and Artistic Works
      8.        Under Article 9(1) of the Berne Convention for the Protection of Literary and Artistic Works (Paris Act of 24 July 1971),
         as amended on 28 September 1979 (‘the Berne Convention’), authors of literary and artistic works protected by the Convention
         have the exclusive right to authorise the reproduction of those works, in any manner or form.
      
      9.        Article 11bis(1) of the Berne Convention provides:
      
      ‘Authors of literary and artistic works shall enjoy the exclusive right of authorising:
      (i)       the broadcasting of their works or the communication thereof to the public by any other means of wireless diffusion of signs,
         sounds or images;
      
      (ii)  any communication to the public by wire or by rebroadcasting of the broadcast of the work, when this communication is made
         by an organisation other than the original one;
      
      (iii)  the public communication by loudspeaker or any other analogous instrument transmitting, by signs, sounds or images, the broadcast
         of the work.’
      
      2.      Agreement on Trade-Related Aspects of Intellectual Property Rights
      10.      The Agreement on Trade-Related Aspects of Intellectual Property Rights, as set out in Annex 1C to the Marrakesh Agreement
         establishing the World Trade Organisation, was approved by Council Decision 94/800/EC of 22 December 1994 concerning the conclusion
         on behalf of the European Community, as regards matters within its competence, of the agreements reached in the Uruguay Round
         multilateral negotiations (1986-1994) (5) (‘the TRIPS Agreement’).
      
      11.      Article 9(1) of the TRIPS Agreement contains a provision on compliance with international agreements on copyright protection:
      
      ‘Members shall comply with Articles 1 through 21 of the Berne Convention (1971) and the Appendix thereto. However, Members
         shall not have rights or obligations under this Agreement in respect of the rights conferred under Article 6bis of that Convention or of the rights derived therefrom.’
      
      12.      Article 14(3) of the TRIPS Agreement contains provisions on the protection of television programmes:
      
      ‘Broadcasting organisations shall have the right to prohibit the following acts when undertaken without their authorisation:
         the fixation, the reproduction of fixations, and the rebroadcasting by wireless means of broadcasts, as well as the communication
         to the public of television broadcasts of the same. Where Members do not grant such rights to broadcasting organisations,
         they shall provide owners of copyright in the subject-matter of broadcasts with the possibility of preventing the above acts,
         subject to the provisions of the Berne Convention (1971).’
      
      3.      The WIPO Copyright Treaty
      13.      The World Intellectual Property Organisation (WIPO) adopted in Geneva, on 20 December 1996, the WIPO Performances and Phonograms
         Treaty and the WIPO Copyright Treaty. Those two treaties were approved on behalf of the Community by Council Decision 2000/278/EC
         of 16 March 2000 (6) with regard to matters coming within its competence.
      
      14.      Under Article 1(4) of the WIPO Copyright Treaty, Contracting Parties must comply with Articles 1 to 21 of and the Appendix
         to the Berne Convention.
      
      15.      Article 8 of the WIPO Copyright Treaty provides:
      
      ‘Without prejudice to the provisions of Articles 11(1)(ii), 11bis(1)(i) and (ii), 11ter(1)(ii), 14(1)(ii) and 14bis(1) of the Berne Convention, authors of literary and artistic works shall enjoy the exclusive right of authorising any communication
         to the public of their works, by wire or wireless means, including the making available to the public of their works in such
         a way that members of the public may access these works from a place and at a time individually chosen by them.’
      
      4.      Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations
      16.      Article 13 of the Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations
         of 26 October 1961 (7) lays down certain minimum rights for broadcasting organisations:
      
      ‘Broadcasting organisations shall enjoy the right to authorise or prohibit:
      (a)       the rebroadcasting of their broadcasts;
      (b)       the fixation of their broadcasts;
      (c)       the reproduction
      (i)       of fixations, made without their consent, of their broadcasts;
      (ii)  of fixations, made in accordance with the provisions of Article 15, of their broadcasts, if the reproduction is made for purposes
         different from those referred to in those provisions; 
      
      (d)       the communication to the public of their television broadcasts if such communication is made in places accessible to the public
         against payment of an entrance fee; it shall be a matter for the domestic law of the State where protection of this right
         is claimed to determine the conditions under which it may be exercised.’
      
      17.      Whilst the European Union is not a Contracting Party to the Rome Convention, under Article 5 of Protocol 28 on intellectual
         property to the Agreement on the European Economic Area, (8) the Contracting Parties to the EEA Agreement undertake to secure their adherence before 1 January 1995 to the following multilateral
         conventions on industrial, intellectual and commercial property:
      
      ‘…
      (b)       Berne Convention for the Protection of Literary and Artistic Works (Paris Act, 1971);
      (c)       International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations (Rome, 1961);
      …’
      B –    European Union law
      1.      Protection of services based on conditional access
      18.      One of the main focuses of the questions referred for preliminary ruling is Directive 98/84 on the legal protection of services
         based on, or consisting of, conditional access.
      
      19.      Article 1 describes the objective of Directive 98/84:
      
      ‘The objective of this Directive is to approximate provisions in the Member States concerning measures against illicit devices
         which give unauthorised access to protected services.’
      
      20.      Article 2 of Directive 98/84 defines the relevant terms. The terms ‘conditional access device’, ‘illicit device’ and ‘coordinated
         field’ are of particular interest:
      
      ‘For the purposes of this Directive:
      (a)      …
      …
      (c)      conditional access device shall mean any equipment or software designed or adapted to give access to a protected service in an intelligible form;
      
      (d)      …
      (e)       illicit device shall mean any equipment or software designed or adapted to give access to a protected service in an intelligible form without
         the authorisation of the service provider;
      
      (f)       field coordinated by this Directive shall mean any provision relating to the infringing activities specified in Article 4.’
      
      21.      Article 3 of Directive 98/84 governs the measures which must be taken in relation to services based on conditional access
         and conditional access devices within the internal market:
      
      ‘1.       Each Member State shall take the measures necessary to prohibit on its territory the activities listed in Article 4, and to
         provide for the sanctions and remedies laid down in Article 5.
      
      2.      Without prejudice to paragraph 1, Member States may not:
      (a)       restrict the provision of protected services, or associated services, which originate in another Member State; or,
      (b)       restrict the free movement of conditional access devices;
      for reasons falling within the field coordinated by this Directive.’
      22.      Article 4 of Directive 98/84 lays down which activities must be prohibited:
      
      ‘Member States shall prohibit on their territory all of the following activities:
      (a)       the manufacture, import, distribution, sale, rental or possession for commercial purposes of illicit devices;
      (b)       the installation, maintenance or replacement for commercial purposes of an illicit device;
      (c)       the use of commercial communications to promote illicit devices.’
      2.      Intellectual property in the information society
      23.      Two aspects of Directive 2001/29 on the harmonisation of certain aspects of copyright and related rights in the information
         society are relevant in the present context: the reproduction right and the right of communication to the public.
      
      24.      The reproduction right is laid down in Article 2 of Directive 2001/29:
      
      ‘Member States shall provide for the exclusive right to authorise or prohibit direct or indirect, temporary or permanent reproduction
         by any means and in any form, in whole or in part:
      
      (a)       for authors, of their works;
      (b)       for performers, of fixations of their performances;
      (c)       for phonogram producers, of their phonograms;
      (d)       for the producers of the first fixations of films, in respect of the original and copies of their films;
      (e)       for broadcasting organisations, of fixations of their broadcasts, whether those broadcasts are transmitted by wire or over
         the air, including by cable or satellite.’
      
      25.      A restriction for certain reproductions made for technological reasons is laid down in Article 5(1) of Directive 2001/29:
      
      ‘Temporary acts of reproduction referred to in Article 2, which are transient or incidental and an integral and essential
         part of a technological process and whose sole purpose is to enable:
      
      (a)       a transmission in a network between third parties by an intermediary, or
      (b)       a lawful use
      of a work or other subject-matter to be made, and which have no independent economic significance, shall be exempted from
         the reproduction right provided for in Article 2.’
      
      26.      Article 3 of Directive 2001/29 governs the rights connected with communication to the public:
      
      ‘1.      Member States shall provide authors with the exclusive right to authorise or prohibit any communication to the public of their
         works, by wire or wireless means, including the making available to the public of their works in such a way that members of
         the public may access them from a place and at a time individually chosen by them.
      
      2.      Member States shall provide for the exclusive right to authorise or prohibit the making available to the public, by wire or
         wireless means, in such a way that members of the public may access them from a place and at a time individually chosen by
         them:
      
      (a)       for performers, of fixations of their performances;
      (b)       for phonogram producers, of their phonograms;
      (c)       for the producers of the first fixations of films, of the original and copies of their films;
      (d)       for broadcasting organisations, of fixations of their broadcasts, whether these broadcasts are transmitted by wire or over
         the air, including by cable or satellite.
      
      3.      The rights referred to in paragraphs 1 and 2 shall not be exhausted by any act of communication to the public or making available
         to the public as set out in this Article.’
      
      27.      Recital 23 in the preamble to Directive 2001/29 provides the following explanation for this:
      
      ‘This Directive should harmonise further the author’s right of communication to the public. This right should be understood
         in a broad sense covering all communication to the public not present at the place where the communication originates. This
         right should cover any such transmission or retransmission of a work to the public by wire or wireless means, including broadcasting.
         This right should not cover any other acts.’
      
      28.      Directive 2001/29 supplemented the then existing Council Directive 92/100/EEC of 19 November 1992 on rental right and lending
         right and on certain rights related to copyright in the field of intellectual property, (9) which was consolidated by Directive 2006/115/EC. (10) Article 8(3) of Directive 2006/115 lays down a further right relating to the communication of broadcasts to the public:
      
      ‘Member States shall provide for broadcasting organisations the exclusive right to authorise or prohibit the rebroadcasting
         of their broadcasts by wireless means, as well as the communication to the public of their broadcasts if such communication
         is made in places accessible to the public against payment of an entrance fee.’
      
      3.      Intellectual property and satellite broadcasting
      29.      Directive 93/83 deals with issues relating to intellectual property in the field of satellite broadcasting. Various recitals
         in its preamble are of particular importance for an understanding of the directive:
      
      ‘(1)  … the objectives of the Community as laid down in the Treaty include establishing an ever closer union among the peoples of
         Europe, fostering closer relations between the States belonging to the Community and ensuring the economic and social progress
         of the Community countries by common action to eliminate the barriers which divide Europe;
      
      …
      (3)       … broadcasts transmitted across frontiers within the Community, in particular by satellite and cable, are one of the most
         important ways of pursuing these Community objectives, which are at the same time political, economic, social, cultural and
         legal;
      
      …
      (5)       … however, the achievement of these objectives in respect of cross-border satellite broadcasting and the cable retransmission
         of programmes from other Member States is currently still obstructed by a series of differences between national rules of
         copyright and some degree of legal uncertainty; … this means that holders of rights are exposed to the threat of seeing their
         works exploited without payment of remuneration or that the individual holders of exclusive rights in various Member States
         block the exploitation of their rights; … the legal uncertainty in particular constitutes a direct obstacle in the free circulation
         of programmes within the Community;
      
      …
      (7)       … the free broadcasting of programmes is further impeded by the current legal uncertainty over whether broadcasting by a satellite
         whose signals can be received directly affects the rights in the country of transmission only or in all countries of reception
         together; … 
      
      …
      (14)  … the legal uncertainty regarding the rights to be acquired which impedes cross-border satellite broadcasting should be overcome
         by defining the notion of communication to the public by satellite at a Community level; … this definition should at the same
         time specify where the act of communication takes place; … such a definition is necessary to avoid the cumulative application
         of several national laws to one single act of broadcasting; … communication to the public by satellite occurs only when, and
         in the Member State where, the programme-carrying signals are introduced under the control and responsibility of the broadcasting
         organisation into an uninterrupted chain of communication leading to the satellite and down towards the earth; … normal technical
         procedures relating to the programme-carrying signals should not be considered as interruptions to the chain of broadcasting;
      
      (15)  … the acquisition on a contractual basis of exclusive broadcasting rights should comply with any legislation on copyright
         and rights related to copyright in the Member State in which communication to the public by satellite occurs;
      
      (16)  … the principle of contractual freedom on which this Directive is based will make it possible to continue limiting the exploitation
         of these rights, especially as far as certain technical means of transmission or certain language versions are concerned;
      
      (17)  … in arriving at the amount of the payment to be made for the rights acquired, the parties should take account of all aspects
         of the broadcast, such as the actual audience, the potential audience and the language version;
      
      …’
      30.      The definitions laid down in Article 1(2)(a), (b) and (c) of Directive 93/83 are of particular interest to the present cases.
      
      ‘(a)  For the purpose of this Directive, “communication to the public by satellite” means the act of introducing, under the control
         and responsibility of the broadcasting organisation, the programme-carrying signals intended for reception by the public into
         an uninterrupted chain of communication leading to the satellite and down towards the earth.
      
      (b)       The act of communication to the public by satellite occurs solely in the Member State where, under the control and responsibility
         of the broadcasting organisation, the programme-carrying signals are introduced into an uninterrupted chain of communication
         leading to the satellite and down towards the earth.
      
      (c)       If the programme-carrying signals are encrypted, then there is communication to the public by satellite on condition that
         the means for decrypting the broadcast are provided to the public by the broadcasting organisation or with its consent.
      
      …’
      31.      Furthermore, Article 2 of Directive 93/83 establishes a special right for the author in respect of communication by satellite:
      
      ‘Member States shall provide an exclusive right for the author to authorise the communication to the public by satellite of
         copyright works, subject to the provisions set out in this chapter.’
      
      III –  Facts and references for preliminary rulings
      A –    Transmission of football matches
      32.      The FAPL’s strategy is to make games in the English Premier League available to viewers throughout the world while maximising
         the value of its media rights for its member clubs. 
      
      33.      The FAPL’s activities include organising the filming of Premier League matches and licensing the rights to broadcast them.
         The exclusive rights to broadcast live matches are divided territorially and are granted on the basis of three-year terms.
         The system of contracts includes a covenant of exclusivity that the FAPL will appoint only one broadcaster within any particular
         territory and restrictions on the circulation of authorised decoder cards outside the territory of each licensee.
      
      34.      The granting of broadcasting rights for sporting events on an exclusive territorial basis is an established and accepted commercial
         practice amongst rights-holders and broadcasters throughout Europe. In order to protect this territorial exclusivity, each
         broadcaster undertakes in its licence agreement with the FAPL to encrypt its satellite-delivered signal.
      
      35.      During the period at issue in the present proceedings, each Premier League match was filmed by the BBC or by Sky. Their chosen
         images and the ambient sound of the match (sometimes including the Premier League Anthem (‘the Anthem’)) constitute the ‘Clean
         Live Feed’. Once logos, video sequences, on-screen graphics, music (including the Anthem) and English commentary have been
         added, the result constitutes the ‘World Feed’. Once compressed and encrypted, this is then transmitted by satellite to the
         licensed foreign broadcaster. The broadcaster decrypts and decompresses the World Feed, adds its own logo and any commentary,
         compresses and encrypts the signal again and transmits it via satellite to subscribers within its assigned territory. Subscribers
         with a satellite dish can decrypt and decompress the signal in a decoder, which requires a decoder card. The entire transmission
         process from pitch to subscriber takes about five seconds.
      
      36.      Fragments of the various film works, the musical work and the sound recording are stored sequentially in the decoder prior
         to their output and are subsequently deleted from the decoder.
      
      B –    Case C‑403/08 
      37.      The proceedings which form the basis of Case C‑403/08 stem from actions brought by the FAPL together with the undertakings
         responsible for the transmission of the matches in Greece. 
      
      38.      In Greece, the sub-licensee was (and remains) NetMed Hellas SA, which in practical terms was prohibited by contract from supplying
         the relevant decoder cards outside Greece. Matches are broadcast on ‘SuperSport’ channels on the ‘NOVA’ platform, which is
         owned and operated by Multichoice Hellas SA. These two Greek undertakings are under the same ultimate ownership and are collectively
         referred to as ‘NOVA’. Reception of SuperSport channels is enabled by a NOVA satellite decoder card.
      
      39.      The actions relate to the use of foreign decoder cards in the United Kingdom to access foreign satellite transmissions of
         live Premier League football matches. The claimants complain that the dealing in and use of such cards in the United Kingdom
         constitute an infringement of their rights under the provisions of national law designed to implement Directive 98/84 and
         of the copyright in various artistic and musical works, films and sound recordings embodied in the Premier League match coverage.
      
      40.      Two of the actions have been brought against suppliers of equipment and satellite decoder cards to pubs and bars, which make
         possible the reception of non-Sky satellite channels (including NOVA channels) that carry live Premier League matches. The
         third action has been brought against licensees or operators of four pubs (‘publicans’) who have shown live Premier League
         matches broadcast on the channels of an Arab broadcaster.
      
      41.      In Case C‑403/08 the High Court therefore asks the Court the following questions:
      
      A. On the interpretation of Directive 98/84
      1.      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 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 ‘designed or adapted’ within Article 2(e) of the directive?
      2.      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?
      
      In particular:
      Where a first undertaking transmits programme content (comprising visual images, ambient sound and English commentary) 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 and Article 1(a) of Directive 89/552/EEC? [(11)]
      (b)      Is it necessary for the first undertaking to be a broadcaster within the meaning of Article 1(b) of Directive 89/552 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? 
      
      (c)      Is Article 5 of Directive 98/84 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:
      
      (i)      because such devices are to be regarded as giving access via the broadcast signal to the first undertaking’s own service;
         or
      
      (ii)      because the first undertaking is the provider of a protected service whose interests are affected by an infringing activity
         (because such devices give unauthorised access to the protected service provided by the second undertaking)?
      
      (d)      Is the answer to (c) affected by whether the first and second service providers use different decryption systems and conditional
         access devices? 
      
      3.      Commercial purposes
      Does ‘possession for commercial purposes’ in Article 4(a) of Directive 98/84 relate only to possession for the purposes of
         commercial 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
      4.      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 reproduced 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?
      
      (b)      If it is a matter of interpretation of Article 2 of Directive 2001/29, 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 creation of transient images on a television screen?
      5.      Independent economic significance
      (a)      Are transient copies of a work created within a satellite television 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 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?
      
      6.      Communication to the 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 2001/29
         where a satellite broadcast is received at 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)?
      
      (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?
      
      (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. On the interpretation of Directive 93/83 and of Articles 28 and 30 and 49 of the EC Treaty
      7.      Defence under Directive 93/83
      Is it compatible with Directive 93/83 or with Articles 28 and 30 or 49 of the EC Treaty if national copyright law provides
         that when transient copies of works included in a satellite 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?
      
      D.      On the interpretation of the Treaty rules on free movement of goods and services under Articles 28 and 30 and 49 EC in the
         context of Directive 98/84
      
      8.      Defence under Articles 28 and/or 49 EC
      (a)      If the answer to Question 1 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 when it is used outside the scope of the authorisation
         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 Conditional Access Directive?
      
      (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 broadcasting service
         in another Member State on the condition that the satellite decoder card is only authorised for use in that other Member State?
      
      (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?
      
      9.      Whether the protection afforded to the Anthem can be any broader than that afforded to the rest of the broadcast
      Do Articles 28 and 30 or 49 of the EC Treaty preclude enforcement 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?
      
      E. On the interpretation of the Treaty rules on competition under Article 81 EC
      10.      Defence under Article 81 EC
      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:
      (a)      must Article 81(1) be interpreted as applying to that obligation by reason only of it being deemed to have the object of preventing,
         restricting or distorting competition?
      
      (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)?
      
      C –    Case C‑429/08
      42.      This reference for a preliminary ruling stems from criminal proceedings brought against Ms Murphy, the landlady of a pub,
         who showed Premier League matches using a Greek decoder card. Media Protection Services Ltd brought a private prosecution
         against her, securing at first instance and on appeal the imposition of a fine on the ground that such a card is an illicit
         access device within the meaning of the rules implementing Directive 98/84. Ms Murphy appealed against that conviction to
         the High Court.
      
      43.      In the present proceedings the High Court has referred the following questions:
      
      On the interpretation of Directive 98/84
      1.      In what circumstances is a conditional access device an ‘illicit device’ within the meaning of Article 2(e) of Directive 98/84?
      2.      In particular, is a conditional access device an ‘illicit device’ if it is acquired in circumstances where:
      (i) the conditional access device was made by or with the consent of a service provider and originally supplied subject to
         limited contractual authorisation to use the device to gain access to a protected service only in a first Member State and
         was used to gain access to that protected service received in another Member State?
      
      and/or
      (ii) the conditional access device was made by or with the consent of a service provider and was originally procured and/or
         enabled by the provision of a false name and residential address in the first Member State, thereby overcoming contractual
         territorial restrictions imposed on the export of such devices for use outside the first Member State?
      
      and/or
      (iii) the conditional access device was made by or with the consent of a service provider and was originally supplied subject
         to a contractual condition that it be used only for domestic or private use rather than commercial use (for which a higher
         subscription charge is payable), but was used in the United Kingdom for commercial purposes, namely showing live football
         broadcasts in a public house?
      
      3.      If the answer to any part of Question 2 is ‘no’, does Article 3(2) of that Directive preclude a Member State from invoking
         a national law that prevents use of such conditional access devices in the circumstances set out in Question 2 above?
      
      4.      If the answer to any part of Question 2 is ‘no’, is Article 3(2) of that Directive invalid:
      (a)       for the reason that it is discriminatory and/or disproportionate; and/or
      (b)       for the reason that it conflicts with free movement rights under the Treaty;
      and/or
      (c)       for any other reason?
      5.      If the answer to Question 2 is ‘yes’, are Articles 3(1) and 4 of that Directive invalid for the reason that they purport to
         require the Member States to impose restrictions on the importation from other Member States of and other dealings with ‘illicit
         devices’ in circumstances where those devices may lawfully be imported and/or used to receive cross-border satellite broadcasting
         services by virtue of the rules on the free movement of goods under Articles 28 and 30 of the EC Treaty and/or the freedom
         to provide and receive services under Article 49 of the EC Treaty?
      
      On the interpretation of Articles 12, 28, 30 and 49 of the EC Treaty
      6.      Do Articles 28, 30 and/or 49 EC preclude enforcement of a national law (such as section 297 of the Copyright, Designs and
         Patents Act 1988) which makes it a criminal offence dishonestly to receive a programme included in a broadcasting service
         provided from a place in the United Kingdom with intent to avoid payment of any charge applicable to the reception of the
         programme, in any of the following circumstances:
      
      (i)      where the conditional access device was made by or with the consent of a service provider and originally supplied subject
         to limited contractual authorisation to use the device to gain access to a protected service only in a first Member State
         and was used to gain access to that protected service received in another Member State (in this case the United Kingdom)?
         and/or 
      
      (ii)  where the conditional access device was made by or with the consent of a service provider and was originally procured and/or
         enabled by the provision of a false name and residential address in the first Member State thereby overcoming contractual
         territorial restrictions imposed on the export of such devices for use outside the first Member State? and/or
      
      (iii)  where the conditional access device was made by or with the consent of a service provider and was originally supplied subject
         to a contractual condition that it be used only for domestic or private use rather than commercial use (for which a higher
         subscription charge is payable), but was used in the United Kingdom for commercial purposes, namely showing live football
         broadcasts in a public house?
      
      7.      Is enforcement of the national law in question in any event precluded on the ground of discrimination contrary to Article
         12 EC or otherwise, because the national law applies to programmes included in a broadcasting service provided from a place
         in the United Kingdom but not from any other Member State?
      
      On the interpretation of Article 81 of the EC Treaty
      8.      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:
      (a)       must Article 81(1) be interpreted as applying to that obligation by reason only of it being deemed to have the object of preventing,
         restricting or distorting competition?
      
      (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)?
      
      44.      The FAPL, QC Leisure, Ms Murphy and Media Protection Services Ltd, the United Kingdom of Great Britain and Northern Ireland,
         the French Republic, the EFTA Surveillance Authority, the European Parliament, the Council and the European Commission submitted
         pleadings. At the hearing those parties, with the exception of France, also presented oral argument, as did the Czech Republic,
         the Kingdom of Spain and the Italian Republic.
      
      IV –  Legal assessment
      45.      The cases in the main proceedings stem from the practice of territorially restricting access to encrypted sports broadcasts
         which are transmitted via satellite to various Member States. The references for preliminary rulings concern the issue of
         whether this is compatible with the internal market from a multitude of varying perspectives, which have generated a large
         number of different questions.
      
      46.      It should be noted, first of all, that, whilst European Union law respects the special characteristics of sport, sport does
         not fall outside the scope of that law. (12) In particular, the fact that an economic activity has a connection with sport does not preclude application of the rules
         of the Treaties. (13)
      
      47.      While I take the view that resolution of the cases in the main proceedings is – so far as the use of the Greek decoder cards
         is concerned – essentially dependent on the application of freedom to provide services and, moreover, the question of communication
         to the public (Article 3 of Directive 2001/29) is of great interest first and foremost, I will nevertheless structure the
         Opinion in accordance with the order of the questions in Case C‑403/08. I will therefore begin by examining Directive 98/84
         on the protection of devices for access to services based on conditional access (see under A), then Directive 2001/29 on copyright
         in the information society (see under B), Directive 93/83 on the coordination of certain rules concerning copyright and rights
         related to copyright applicable to satellite broadcasting and cable retransmission (see under C), and only then the application
         of the fundamental freedoms (see under D) and, lastly, competition law (see under E).
      
      A –    Directive 98/84 
      48.      Directive 98/84 regulates the protection of devices for access to services based on conditional access and the free movement
         of such devices in the internal market. The parties derive from this two conflicting premises which form the basis for the
         questions relating to the directive.
      
      49.      Under Article 4 of Directive 98/84, the manufacture, import, distribution, sale, rental or possession for commercial purposes
         of illicit devices must be prohibited and appropriately sanctioned. The FAPL takes the view that a decoder card lawfully sold
         in one Member State becomes an illicit device if it is used in another Member State against the will of the undertaking broadcasting
         the protected service. Ms Murphy contends that such use of a decoder card which has been lawfully placed on the market cannot
         turn it into an illicit device. Rather, such use is lawful under the directive, since Article 3(2) prohibits any restriction
         on the dealing in licit decoder cards.
      
      50.      I propose that the Court give ‘short shrift’ to this set of questions as both premises are clearly wrong.
      
      51.      Under Article 2(e) of Directive 98/84, an ‘illicit device’ means any equipment or software designed or adapted to give access
         to a protected service in an intelligible form without the authorisation of the service provider.
      
      52.      In the view of the FAPL, it is sufficient for that purpose that the decoder cards are used in the United Kingdom to receive
         transmissions from the Greek broadcaster, even though such transmissions may not be received in that place according to the
         will of the rights-holder.
      
      53.      The wording of Article 2(e) of Directive 98/84 is not, however, directed to preventing the use of an access device against the will of the service provider. It requires equipment designed or adapted to give access without the authorisation of the service provider. That definition therefore covers equipment
         manufactured or modified specifically for that purpose.
      
      54.      The decoder card, by contrast, is specifically designed precisely to provide access with the authorisation of the service
         provider. The service provider – the Greek broadcaster – places it on the market specifically for that purpose. The decoder
         card is likewise not adapted by virtue of importation into the United Kingdom.
      
      55.      This obvious interpretation alone is compatible with the general objective of Directive 98/84. According to recitals 2 and
         3 in its preamble, it is intended to promote the cross-border provision of services. It would scarcely be compatible with
         this objective to regard the cross-border importation of licit conditional access devices as sufficient to justify a finding
         that they are illicit devices. 
      
      56.      Furthermore, the general principle of legal certainty, which is a fundamental principle of European Union law, requires, in
         particular, that rules should be clear and precise, so that individuals may ascertain unequivocally what their rights and
         obligations are and may take steps accordingly. (14) Where criminal provisions are laid down, it is further necessary to observe the principle of the legality of criminal offences
         and penalties (nullum crimen, nulla poena sine lege), which implies that European Union rules must define in clear terms offences and the penalties which they attract. (15) If the European Union legislature actually intended to protect the geographical partitioning of television markets and to
         impose sanctions on the mere circumvention of that partitioning through the importation into other Member States of decoder
         cards which are licit in their State of origin, it ought therefore to have expressed this with much greater clarity.
      
      57.      Question 1 in Case C‑403/08 and the first two questions in Case C‑429/08 must therefore be answered to the effect that being
         designed or adapted within the meaning of Article 2(e) of Directive 98/84 means the manufacture or modification of equipment
         with the intention of providing access to a protected service in an intelligible form without the authorisation of the service
         provider. 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, that device does
         not therefore become an ‘illicit device’ within the meaning of Article 2(e) of Directive 98/84 if it is used to obtain access
         to that protected service in a place or in a manner or by a person outside the authorisation of the service provider. 
      
      58.      It does not follow, however, that Question 3 in Case C‑429/08 should be answered to the effect that Article 3(2) of Directive
         98/84 prohibits any restriction on dealing in licit decoder cards. 
      
      59.      Article 3(2)(a) of Directive 98/84 does, it is true, prohibit restrictions on the provision of protected services, or associated
         services, which originate in another Member State, while Article 3(2)(b) prohibits restrictions on the free movement of conditional
         access devices. However, those prohibitions of restrictions are qualified: only restrictions for reasons falling within the
         field coordinated by the directive are unlawful. According to the definition laid down in Article 2(f), that field means any
         provision relating to the infringing activities specified in Article 4, that is to say, the various prohibitions relating
         to matters involving illicit devices. Restrictions for other reasons are not therefore excluded by Article 3(2). 
      
      60.      The breach of contractual agreements concerning the accessibility of programmes in certain Member States, the provision of
         false names and/or addresses in the acquisition of access devices or the use, for commercial purposes, of decoder cards intended
         for private or domestic use are not measures to combat illicit devices. They do not therefore fall within the field coordinated
         by Directive 98/84. 
      
      61.      The answer to Question 3 in Case C‑429/08 must therefore be that Article 3(2) of Directive 98/84 does not preclude a Member
         State from invoking a provision of national law that prevents use of a conditional access device in the event of breach of
         contractual agreements concerning the accessibility of programmes in certain Member States, following the provision of false
         names and/or addresses in the acquisition of the access device or the use, for commercial purposes, of an access device intended
         for private or domestic use.
      
      62.      In view of the fact that, according to the grounds set out in the order for reference, Question 4 in Case C‑429/08, which
         concerns the validity of Article 3(2) of Directive 98/84, is based on the assumption that that provision precludes any restrictions
         for the abovementioned reasons, it does not have to be answered. There is likewise no need to answer Questions 2, 3 and 8(a)
         in Case C‑403/08 or Question 5 in Case C‑429/08.
      
      B –    Directive 2001/29
      1.      Reproduction right
      63.      By its Questions 4 and 5 in Case C‑403/08, the High Court asks whether the digital communication of broadcasts inevitably
         affects the author’s right to the reproduction of his works. For technical reasons, the communication of digital programmes
         requires short fragments of the broadcast to be stored in the decoder’s memory buffer. According to the order for reference,
         in accordance with the applicable standard, four frames of a video stream and a corresponding part of the sound recording
         are stored at any time in a receiver’s memory buffer.
      
      64.      Under Article 2 of Directive 2001/29, various persons – including authors, in respect of their works, and broadcasting organisations,
         in respect of fixations of their broadcasts – are accorded the exclusive right to authorise or prohibit direct or indirect,
         temporary or permanent reproduction by any means and in any form, in whole or in part.
      
      a)      Question 4(a) in Case C‑403/08 – national law or European Union law
      65.      The referring court first asks whether classification of temporary storage as reproduction is a matter for national law or
         ultimately follows from Directive 2001/29. It doubts whether reproduction here exists for the purposes of national law.
      
      66.      The Court of Justice, however, has already ruled that the notion of ‘reproduction in part’ is to be given a uniform interpretation
         in European Union law. (16)
      
      67.      Consequently, the question whether works have been reproduced in whole or in part must be answered by means of an interpretation
         of Article 2 of Directive 2001/29.
      
      b)      The application of the reproduction right to live transmissions
      68.      Before the questions on reproduction can be answered, it is necessary to clarify whether the reproduction right is applicable
         at all to live transmissions.
      
      69.      Article 2(e) of Directive 2001/29 establishes for broadcasting organisations a right to reproduction of fixations of their
         broadcasts. Under Article 2(d), the same right for film producers applies in respect of the original and copies of their films.
         
      
      70.      QC Leisure and Others doubt whether a live transmission involves the reproduction of a fixation, an original or a copy. This
         view is presumably based on the fact that the production process described in the order for reference does not provide for
         any permanent fixation of the broadcast on the basis of which the film is transmitted. 
      
      71.      The Commission, on the other hand, argues convincingly that, in practice, even a live transmission is based on a first fixation
         or original recording on the basis of which the images are relayed. That fixation is created at least in the memory buffers,
         in which the different camera angles are merged in order to produce the broadcast which is relayed.
      
      72.      The view taken by QC Leisure and Others would result in live transmissions being placed at an unreasonable disadvantage in
         comparison with transmissions of fixations. Such a restriction of the reproduction right could also be easily circumvented,
         as broadcasters could, without any great difficulty, integrate a first permanent fixation of the signal into the production
         process.
      
      73.      The reproduction right is thus also applicable to a live transmission.
      
      c)      Question 4(b) in Case C‑403/08 – Reproduction in the receiver’s memory buffer
      74.      The High Court first asks, with regard to Article 2 of Directive 2001/29, whether it should consider each of the fragments
         of the broadcast which exist or the broadcast as a whole.
      
      75.      Article 2 of Directive 2001/29 provides for a right to authorise or prohibit direct or indirect, temporary or permanent reproduction
         by any means and in any form, in whole or in part.
      
      76.      An argument in favour of taking into consideration all fragments stored for a short time is the fact that all fragments are
         reproduced only with a view to enabling continuous playback of the whole broadcast. However, in accordance with the standard,
         only four frames exist in the memory buffer at any one time, together with a very short soundtrack corresponding to those
         frames. It cannot therefore be assumed that a complete reproduction of the broadcast is produced. However, even such fragments,
         which are extremely small in scope, constitute the reproduction in part of a broadcast.
      
      77.      QC Leisure and Others take the view that those frames and fragments of the soundtrack cannot be regarded as reproduction of
         the broadcast. For reproduction in part within the meaning of Article 2 of Directive 2001/29, it is necessary that a substantial
         part of the work should be reproduced. This argument is based on the domestic concept of reproduction and its interpretation.
         
      
      78.      In the meantime, however, the Court has already interpreted the concept of reproduction under Article 2(a) of Directive 2001/29
         with regard to a newspaper article. It found that copyright covers all parts of the work which represent the author’s own
         intellectual creation. (17) It nevertheless excluded words in isolation from protection, inasmuch as the intellectual creation resulted only from the
         choice, sequence and combination of those words. (18) The principles laid down in that ruling can be applied to the present cases.
      
      79.      Unlike words, the images and fragments of the soundtrack which are stored for a short time in the present case are individual
         in nature. Each image stems from a specific choice made by the camera operator or the director and can be unambiguously attributed
         to the transmission in question. Although there would appear to be no particular interest in the vast majority of these individual
         frames, they all none the less form part of the intellectual creation represented by the transmitted broadcast.
      
      80.      In this process, on the other hand, the isolated items of colour data for individual pixels are comparable to individual words.
         Bringing those data together forms the individual frames which represent the author’s own intellectual creation.
      
      81.      Acts of reproduction therefore occur where frames of digital video and audio are created within the memory of a decoder, as
         these frames are part of the intellectual creation of the author of the broadcast.
      
      d)      Question 4(c) in Case C‑403/08 – Reproduction through display on a screen
      82.      Lastly, the referring court asks whether the display of a broadcast on a screen also constitutes reproduction. 
      
      83.      Although this question may seem surprising at first glance, QC Leisure, FAPL and the Commission rightly agree that such display
         does in fact amount to reproduction. 
      
      84.      In principle, this follows from the same reasons as the assumption of the existence of a reproduction in the case of the temporary
         storage of images and fragments of the soundtrack. An image from the broadcast is displayed on the screen for an even shorter
         time, while the corresponding section of the soundtrack is also played. 
      
      85.      The display of a broadcast on a screen therefore also constitutes reproduction.
      
      2.      Question 5 in Case C‑403/08 – Restriction of the reproduction right
      86.      Question 5 in Case C‑403/08 is intended to clarify whether the copies identified in the answer to the fourth question are
         excluded from the author’s reproduction right by Article 5(1) of Directive 2001/29.
      
      87.      Article 5(1) of Directive 2001/29 excludes from the reproduction right certain processes carried out for technological reasons.
         That exception must satisfy three cumulative conditions, that is to say, non-compliance with any one of them will lead to
         the act of reproduction falling under the reproduction right provided for in Article 2 of that directive. (19)
      
      88.      First of all, they must be transient or incidental temporary acts of reproduction, which are an integral and essential part
         of a technological process. An act can be held to be ‘transient’ within the meaning of Article 5(1) of Directive 2001/29 only
         if its duration is limited to what is necessary for the proper completion of the technological process in question, it being
         understood that that process must be automated so that it deletes that act automatically, without human intervention, once
         its function of enabling the completion of such a process has come to an end. (20) That is the situation here. The copies in the memory and on the screen are transient and temporary. They are also an integral
         and essential part of the technological process which effects the communication of a broadcast.
      
      89.      Secondly, the sole purpose of the act must be to make possible a transmission in a network between third parties via an intermediary,
         or a lawful use. As the referring court explains, the lawfulness or otherwise of the act cannot be based on whether the rights-holder
         has given consent for the copies in question as such. Reproduction with the consent of the rights-holder does not require
         any exception. This point therefore depends crucially on the answer to other questions, in particular whether the fundamental
         freedoms and/or Directive 93/83 establish a right to receive the broadcast (see below under C and D) and whether the right
         of communication to the public is relevant (see below under 3).
      
      90.      Thirdly, the acts of reproduction must have no independent economic significance. The fifth question in Case C‑403/08 deals
         with the issue of whether the copies identified in the fourth question have any such significance.
      
      91.      The exception under Article 5(1) of Directive 2001/29 must be interpreted strictly because it derogates from the general principle
         established by Article 2. (21) This holds true all the more so in the light of Article 5(5) of Directive 2001/29, under which all exemptions to Article 5
         are to be applied only in certain special cases which do not conflict with a normal exploitation of the work or other subject-matter
         and do not unreasonably prejudice the legitimate interests of the rights-holder. (22)
      
      92.      All of the conditions laid down in Article 5(1) of Directive 2001/29 seek to permit acts of reproduction which are the condition
         for actual exploitation. This is illustrated by the Commission in the explanatory memorandum on the proposal for a directive
         through the example of the transmission of a video on-demand from a database in Germany to a home computer in Portugal, which
         requires at least 100 acts of storage. (23)
      
      93.      In principle, such acts of reproduction have no independent value going beyond the economic significance of exploitation.
         They may possibly have an economic significance equivalent to exploitation since, if, for example, an act of reproduction
         with a view to transmission does not occur, exploitation at the end of the transmission chain is also not possible. However,
         such economic significance is entirely dependent on the proposed exploitation, with the result that it is not independent.
      
      94.      Consequently, the copies which are created in a decoder’s memory have no independent economic significance.
      
      95.      By contrast, the copy which is produced on the screen would indeed appear to have independent economic significance. It is
         the subject-matter of the exploitation of a broadcast. In terms of copyright law, the exploitation of the rights to a broadcast
         is connected with the broadcasting right, since the authors are given a right to object to the broadcast. However, the economic
         significance of a broadcast is, as a rule, based on its reception. This is obvious in the case of the subscriber broadcasts
         in the present cases, but also holds true for broadcasts financed by advertising. Even public broadcasters financed by fees
         or from the national budget must in practice also justify their financing at least by reasonable audience figures.
      
      96.      Consequently, transient copies of a work created on a television screen linked to the decoder box have independent economic
         significance.
      
      97.      The referring court elaborates on Question 5 under letter (b), asking if it is relevant (i) whether the transient copies have
         any inherent value; (ii) whether they 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.
      
      98.      Sub-question (i) has already been answered: transient copies in the memory buffer do not have any inherent value, whereas
         transient copies on a television screen do. 
      
      99.      Sub-question (ii) refers to the possibility that only certain parts of the broadcast are protected. That argument may hold
         with regard to communication to the public, (24) but it is doubtful in the case of the reproduction right under examination here. (25) If the referring court should nevertheless conclude that only parts of the broadcast are protected, that would have no bearing
         on the application of Article 5(1) of Directive 2001/29. The national rules designed to implement Article 5(3)(i) of Directive
         2001/29 would instead be relevant. Under that provision, Member States may provide for exceptions or limitations to the reproduction
         right in the case of the incidental inclusion of a work or other subject-matter in other material.
      
      100. Lastly, sub-question (iii) underlines the crucial point in the two references for preliminary rulings, namely remuneration
         for use of the work in another Member State. Since the independent economic significance of the reproduction of a broadcast
         on a screen coincides with the interest in receiving that broadcast, the question arises whether the remuneration paid for
         receiving that broadcast in one Member State establishes the right to receive the broadcast in another Member State. This
         is the subject of the subsequent questions on Directive 93/83 (see below under C) and on the fundamental freedoms (see below
         under D). It does not, however, affect the application of Article 5(1) of Directive 2001/29.
      
      101. In summary, it must be stated with regard to Question 5 in Case C‑403/08 that transient copies of a work created on a television
         screen linked to the decoder box have independent economic significance within the meaning of Article 5(1) of Directive 2001/29,
         whereas transient copies created in a decoder’s memory do not.
      
      3.      Further communication to the public
      102. Question 6 in Case C‑403/08 seeks clarification as to whether the showing of live transmissions of football matches in pubs
         infringes the exclusive right of communication to the public of protected works within the terms of Article 3 of Directive
         2001/29. 
      
      a)      Admissibility of the question
      103. Doubts could be raised as to whether this question is relevant to the outcome of the case and is thus admissible. According
         to the referring court, section 72 of the Copyright, Designs and Patents Act permits, in principle, television programmes
         to be shown in public if the person showing the programme does not receive any remuneration for doing so. Even if such showing
         were incompatible with Article 3 of Directive 2001/29, a directive cannot of itself impose obligations on an individual and
         cannot therefore be relied on as such against an individual. (26)
      
      104. In accordance with settled case-law, in the context of the cooperation between the Court and the national courts, it is solely
         for the national court, before which the dispute has been brought and which must assume responsibility for the subsequent
         judicial decision, to determine, in the light of the particular circumstances of the case, both the need for a preliminary
         ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently,
         where the questions submitted for a preliminary ruling concern the interpretation of European Union law, the Court is, in
         principle, bound to give a ruling, (27) and it is presumed that questions referred by national courts for a preliminary ruling are relevant. (28) This presumption may, however, be rebutted in exceptional cases, in particular where it is quite obvious that the interpretation
         which is sought of the provisions of European Union law referred to in the questions is hypothetical. (29) Were this the case, the question would be inadmissible.
      
      105. In the present cases, it appears that there is a far-reaching right under national law to show television programmes in public
         without charge, although this does not cover all elements of programmes. In particular, musical works are excluded. Furthermore,
         it cannot be ruled out that an interpretation of that provision in accordance with Article 3 of Directive 2001/29 permits
         that right to be further restricted.
      
      106. The question is not therefore manifestly irrelevant to the outcome of the proceedings and is for that reason admissible.
      
      b)      The question
      107. Consequently, it is necessary to examine whether there is communication to the public, within the meaning of Article 3 of
         Directive 2001/29, if a live transmission of a football match is shown in a pub. First of all, the scope of the group of protected
         works must be defined and then the applicability of Article 3(1) must be examined.
      
      i)      The protected works
      108. Article 3 of Directive 2001/29 requires the introduction of exclusive rights to authorise or prohibit certain actions with
         regard to works. Article 3(1) concerns the rights of authors, whilst Article 3(2) relates to the rights of certain other persons,
         in particular producers of films (c) and broadcasting organisations (d).
      
      109. Paragraphs (1) and (2) do not contain the same rights. Article 3(1) grants the right to any communication to the public of
         works, by wire or wireless means, including the making available to the public of works in such a way that members of the public may access them from a place and at
         a time individually chosen by them. The right under Article 3(2) applies only in regard to this latter form of access, that is to say, where the works covered are accessed by members of the public from
         a place and at a time individually chosen by them.
      
      110. According to the explanatory memorandum on the proposal for Directive 2001/29, ‘access … from a place and at a time chosen
         by [members of the public]’ is intended to cover on-demand transmission, which is not relevant here. (30) Non-interactive transmissions, that is to say, the conventional reception of television programmes, are, by contrast, not
         the subject-matter of Article 3(2). The existing provisions, namely Article 8 of Directive 2006/115 and Article 4 of Directive
         93/83, were intended to continue to apply to such transmissions. (31)
      
      111. Under Article 8(3) of Directive 2006/115, broadcasting organisations are given the exclusive right to authorise or prohibit
         the rebroadcasting of their broadcasts by wireless means, as well as the communication to the public of their broadcasts,
         if such communication is made in places accessible to the public against payment of an entrance fee. No entrance fee was charged
         in the cases in the main proceedings, however. 
      
      112. There would appear to be no specific provision relating to non-interactive communication of films. If football transmissions
         were to be regarded as films, a national provision governing the right of communication to the public at most could therefore
         be taken into consideration.
      
      113. As European Union law stands at present, there are thus no comprehensive rights protecting the communication of a broadcast
         to the public in the absence of an entrance fee. Rather, Article 3(1) of Directive 2001/29 grants only rights relating to
         copyright works which are included in the broadcast. In the present cases, for example, one could think of the Premier League
         Anthem, which is transmitted in conjunction with the broadcast, but also of various other works mentioned in the orders for
         reference. 
      
      114. Under Article 12(2) of Directive 2001/29, but also under Article 14 of Directive 2006/115, the protection of these works is
         left intact or is not affected by protection of rights related to copyright under each of the directives. However, the referring
         court will have to examine whether those works may possibly fall under national provisions implementing Article 5(3)(i) of
         Directive 2001/29. Under Article 5(3)(i), Member States may provide for exceptions or limitations to the right of communication
         to the public in the case of incidental inclusion of a work or other subject-matter in other material.
      
      115. Article 3(1) of Directive 2001/29 is therefore relevant only in so far as works are communicated with the football matches
         shown in pubs, in respect of which United Kingdom law does not provide for any exception to the application of the provisions
         implementing Article 3(1). 
      
      ii)    The applicability of Article 3(1) of Directive 2001/29
      116. With regard to the works thus falling under Article 3(1) of Directive 2001/29, it is necessary to examine whether a showing
         in a pub represents ‘communication to the public … by wire or wireless means’.
      
      117. Satellite broadcasting itself is in principle communication to the public of protected works. It must be assumed, however,
         that the relevant rights-holders have given their consent. Rather, it is questionable whether showing the transmission in
         a pub, instead of showing it for domestic or private purposes, constitutes a retransmission to the public which requires further consent from the rights-holder, which is absent in the present cases.
      
      118. In cases which appear to be similar, namely those regarding transmissions of television programmes in a hotel, the Court has
         assumed further communication to the public to exist. (32) In principle, it is conceivable that visitors to a pub are, like guests in a hotel, to be regarded as an indeterminate number
         of potential television viewers who represent a new public vis-à-vis private recipients. (33) The Court has also stated that communication in the hotel cases was of a profit-making nature. (34) Such profit-making purposes are certainly also pursued by publicans when they show transmissions of football matches, and
         authors have an underlying interest in sharing in the profit derived from the commercial exploitation of their works. 
      
      119. The practice of marketing decoder cards follows this logic, since the broadcasting organisations charge pubs a higher fee
         for using decoder cards, whilst they enjoin private customers to use their cards only for domestic or private purposes.
      
      120. It is, none the less, necessary to examine whether communication to the public within the meaning of Article 3(1) of Directive
         2001/29 should actually be assumed to exist. This is suggested by an interpretation in the light of the rules of international
         law. However, recital 23 in the preamble shows, against the background of the drafting history of Article 3(1), that the European
         Union legislature did not intend to create any rights for authors in respect of free public showings of television broadcasts.
      
      The Berne Convention
      121. Indications as to the meaning of communication to the public can be derived in principle from Article 11bis(1) of the Berne Convention. Article 11bis(1)(i) to (iii) grants authors the exclusive right of authorising three different forms of public communication of their works:
      
      (i)       the broadcasting of their works or the communication thereof to the public by any other means of wireless diffusion of signs,
         sounds or images;
      
      (ii)  any communication to the public by wire or by rebroadcasting of the broadcast of the work, when this communication is made
         by an organisation other than the original one;
      
      (iii)  the public communication by loudspeaker or any other analogous instrument transmitting, by signs, sounds or images, the broadcast
         of the work. 
      
      122. According to the WIPO Guide, (35) an interpretative document drawn up by the WIPO which, without being legally binding, nevertheless assists in interpreting
         that Convention, Article 11bis(1)(iii) is applicable: the public communication by loudspeaker or any other analogous instrument transmitting, by signs,
         sounds or images, the broadcast of the work. That provision is specifically intended to cover the presentation of radio and
         television programmes in places where people gather: cafés, restaurants, hotels, large stores, trains or aircraft. (36)
      
      123. The fact that the broadcast, including the protected works, is shown on the screen to the audience present would, from this
         perspective, constitute communication to the public.
      
      124. Whilst the European Union is not party to the Berne Convention, it has, under Article 9(1) of the TRIPS Agreement and Article 1(4)
         of the WIPO Copyright Treaty, undertaken, together with the Member States, to comply with Articles 1 to 21 of the Berne Convention.
         It would therefore be consistent with the European Union’s obligations under international law to implement Article 11bis(1)(iii) of the Berne Convention in European Union law.
      
      125. Furthermore, Article 14(3) of the TRIPS Agreement expressly provides that broadcasting organisations must be given the right
         to prohibit the communication to the public of television broadcasts when undertaken without their authorisation. States which
         do not grant such rights to broadcasting organisations must at least provide owners of copyright in the subject-matter of
         broadcasts with the possibility of preventing communication, subject to the provisions of the Berne Convention.
      
      126. Communication to the public would accordingly have to be assumed to exist in the present cases.
      
      The intention of the European Union legislature
      127. Although the Commission proposal for Directive 2001/29 sought also to implement Article 11bis(1)(iii) of the Berne Convention in European Union law, the Council and the Parliament did not follow the Commission on this
         point. They did not wish to create any rights at all for authors in respect of free public presentation of works as part of
         a television broadcast.
      
      128. Article 3(1) of Directive 2001/29 is not expressly designed to implement Article 11bis of the Berne Convention. However, it can be seen from the explanatory memorandum on the Commission’s proposal for the directive
         that the intention was to implement Article 8 of the WIPO Copyright Treaty, the wording of which is largely identical to that
         of Article 3 of the directive. (37) That provision fails expressly to mention communication to the public by means of public presentation. However, in view of
         the fact that that Treaty expressly requires compliance with Article 11bis of the Berne Convention, it would be reasonable to construe ‘communication to the public’ in Article 8 of the WIPO Copyright
         Treaty, and thus in Article 3 of Directive 2001/29, in the same way as in Article 11bis of the Berne Convention.
      
      129. It is correspondingly evident from the explanatory memorandum on the Commission’s proposal for a directive that Article 3(1)
         of Directive 2001/29 is intended to cover all forms of public communication. (38) Accordingly, the three forms of public communication mentioned in Article 11bis of the Berne Convention would be included.
      
      130. Nevertheless, the Commission and QC Leisure argue that Article 3 of Directive 2001/29 does not implement Article 11bis(1)(iii) of the Berne Convention. In this regard they rightly rely on the discussions on the directive following the Commission
         proposal, which resulted in recital 23.
      
      131. At first reading, the Parliament proposed that Article 3(1) of Directive 2001/29 should not cover ‘direct representation or
         performance’. (39) The Commission amended its proposal accordingly. (40) Whilst the Council did not take up the amended Commission proposal, some Member States nevertheless secured the restriction
         contained in the second to fourth sentences of recital 23, (41) which is also mentioned by the referring court. 
      
      132. According to the second sentence of recital 23 in the preamble to Directive 2001/29, the author’s right of communication to
         the public should be understood in a broad sense covering all communication to the public not present at the place where the
         communication originates. The third sentence, more specifically, states that this right should cover any such transmission
         or retransmission of a work to the public by wire or wireless means, including broadcasting. The fourth and final sentence
         makes it clear that this right should not cover any other acts.
      
      133. It follows from those three sentences, taken together, that Article 3(1) of Directive 2001/29 is intended to implement only
         Article 11bis(1)(i) and (ii) of the Berne Convention, that is to say, the rules on broadcasting and on communication by an organisation
         other than the original broadcaster. In those cases, different places and transmission by wire or wireless means are to be
         taken into consideration.
      
      134. By contrast, the public communication by loudspeaker or any other analogous instrument transmitting, by signs, sounds or images,
         the broadcast of the work within the meaning of Article 11bis(1)(iii) of the Berne Convention typically occurs at the place where the communication originates. No transmission takes place.
      
      135. This restrictive effect of recital 23 in the preamble to Directive 2001/29 was also discussed within the Council and the European
         Union legislature was therefore aware of it. The Council Presidency stressed that acts other than those referred to in that
         recital, in particular placing a computer with internet connection at the disposal of the public in a cybercafé or a library,
         would not be covered. (42) In this connection, the Italian delegation even questioned the appropriateness of excluding Article 11bis(1)(iii) of the Berne Convention from the scope of Article 3(1) of Directive 2001/29. (43)
      
      136. The restriction of the scope of Article 3(1) of Directive 2001/29 is confirmed by the fact that a number of rules of international,
         European and national law give the impression that television programmes could in principle be shown in pubs without further
         consent from rights-holders.
      
      137. At the level of European Union law, mention should be made, first and foremost, of Article 8(3) of Directive 2006/115, which
         provides a right of objection for broadcasting organisations only in cases where an entrance fee is charged. That provision
         is not an isolated case, but corresponds to Article 13(d) of the Rome International Convention for the Protection of Performers,
         Producers of Phonograms and Broadcasting Organisations of 26 October 1961. Although the European Union is not a Contracting
         Party to that Convention, which is subject to participation only by States under Article 24, the Member States are required
         to accede to it under Article 5(1)(c) of Protocol 28 on intellectual property to the Agreement on the European Economic Area. (44) (45)
      
      138. Similarly, section 72 of the Copyright, Designs and Patents Act provides that a television broadcast may be shown in principle
         in the United Kingdom if no admission fee is charged. In Germany there is a similar provision regarding the rights of broadcasting
         organisations, (46) although Article 11bis(1)(iii) of the Berne Convention is implemented by Paragraph 22 of the Urheberrechtsgesetz in respect of authors. (47)
      
      139. Consequently, the European Union legislature has thus far not intended to implement Article 11bis(1)(iii) of the Berne Convention or Article 14(3) of the TRIPS Agreement as part of European Union law. This decision must
         be respected in particular because the rights of authors stemming from Article 11bis(1)(iii) are not directed against State authorities, but necessarily restrict the rights of others in private-law relations.
         
      
      140. It is not necessary in the present preliminary-reference proceedings to decide whether Article 11bis(1)(iii) of the Berne Convention or Article 14(3) of the TRIPS Agreement are directly applicable; furthermore, the provisions
         of the TRIPS Agreement are not such as to create rights upon which individuals may rely directly before the courts by virtue
         of European Union law, (48) and the Court has not yet considered the direct applicability of the Berne Convention as part of European Union law. (49)
      
      141. However, the hotel cases are understood by some parties to these proceedings as meaning that the Court none the less takes
         the view that Article 3(1) of Directive 2001/29 does implement Article 11bis(1)(iii) of the Berne Convention. In particular, it relies on the statements contained in the WIPO Guide on that provision. (50) It also states that Directive 2001/29 applies to all communications to the public of protected works. (51)
      
      142. However, recital 23 in the preamble to Directive 2001/29 was not the subject of the hotel cases. Above all, those rulings
         related to a different situation, namely communication within the meaning of Article 11bis(1)(ii) of the Berne Convention, that is to say, a communication made by a broadcasting organisation other than the original
         one. (52) Such communication is naturally directed at a public not present at the place in which the communication originates. Consequently,
         the Court did not decide in those cases whether Article 11bis(1)(iii) of the Berne Convention is implemented by Article 3(1) of Directive 2001/29.
      
      143. Article 3(1) of Directive 2001/29, in conjunction with recital 23 in the preamble thereto, must therefore be understood as
         covering only communication of works to a public which is not present at the place in which the communication originates.
      
      Application to the communication of broadcasts in pubs
      144. Where a publican shows a television programme to his customers on a television in the pub, it must in principle be assumed,
         with regard to his action, that the relevant public is present at the place in which the communication originates. The communication
         originates on the screen.
      
      145. The referring court asks under Question 6(b)(iii) whether it is relevant if 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. This cannot be relevant,
         however. In practice, any form of communication requires such transmissions of signals between aerials, decoders and screens
         and within those devices. It would be arbitrary to take into consideration the length of the cables. (53) Such technical requirements for any communication must therefore still be attributed to the original broadcast. 
      
      146. The situation might be different if the signal were not only communicated on a receiver, but – as in the hotel cases – were
         distributed to various other receivers. The distributing device could then be regarded as the place in which the communication
         originates and reception would take place at a different place. This would be retransmission by wire or wireless means, as
         in the hotel cases, which the legislature specifically did not intend to exclude from Article 3(1) of Directive 2001/29.
      
      147. The answer to Question 6 in Case C‑403/08 must therefore be that a copyright work is not communicated to the public by wire
         or wireless means, within the meaning of Article 3(1) of Directive 2001/29, where it is received or viewed as part of a satellite
         broadcast at commercial premises (for example, a bar) or shown at those premises, free of charge, via a single television
         screen and speakers to members of the public present on those premises.
      
      C –    Directive 93/83
      148. The first part of Question 7 in Case C‑403/08 asks whether it is compatible with Directive 93/83 if national copyright law
         provides that when transient copies of works included in a satellite 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.
         The national court also asks whether the position is affected 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 authorised for use only in that other Member State.
      
      149. Under Article 2 of Directive 93/83, Member States must provide an exclusive right for the author to authorise the communication
         to the public by satellite of copyright works.
      
      150. Under Article 1(2)(b) of Directive 93/83, the act of communication to the public by satellite occurs solely in the Member
         State where, under the control and responsibility of the broadcasting organisation, the programme-carrying signals are introduced
         into an uninterrupted chain of communication leading to the satellite and down towards the earth. 
      
      151. In the present context that would be Greece. The signals are transmitted to satellites from there and return there. By contrast,
         Directive 93/83 is not relevant in regard to the use of Arab decoder cards.
      
      152. Those provisions would not appear to contain any rules regarding the cross-border reception of satellite broadcasts, in particular
         the reception of Greek signals by pubs in the United Kingdom. However, according to recital 14 in the preamble to Directive
         93/83, that provision is intended to avoid the cumulative application of several national laws to one single act of broadcasting.
         
      
      153. As recital 7 in the preamble to Directive 93/83 explains, prior to the adoption of the directive, there was legal uncertainty
         as to whether broadcasting by a satellite whose signals can be received directly affects the rights in the country of transmission
         only or in all countries of reception together. A cumulation would not only give rise to the simultaneous application of different
         legal orders. The rights to the broadcast could also be enjoyed by different holders in different Member States. A cumulation
         could therefore render satellite broadcasts excessively difficult or even impossible.
      
      154. According to recital 15 in its preamble, Directive 93/83 is therefore intended to guarantee that the broadcasting rights are
         awarded in accordance with the law of a single Member State, that is to say, the State in which the broadcast occurs under
         Article 1(2)(b). According to this country-of-origin principle (recital 18), the broadcasting right for that State includes
         the right also to transmit the broadcast into other Member States.
      
      155. However, the FAPL is essentially correct in its view that Directive 93/83 does not permit other rights to the broadcast works
         to be infringed. Under Article 5, protection of copyright-related rights under the directive leaves intact and in no way affects
         the protection of copyright. (54)
      
      156. In particular, Directive 93/83 does not explicitly call into question the reproduction right for the broadcast. The referring
         court and various parties to the proceedings therefore take the view that the broadcasting right makes no implication as to
         the right to create transient copies of the broadcast in connection with reception and communication of the broadcast. (55)
      
      157. Nevertheless, under Article 1(2)(a), Directive 93/83 expressly applies only to signals intended for reception by the public.
         Consent for the transmission of the broadcast must therefore include the right to the acts of reproduction which are necessary
         for its reception.
      
      158. On the other hand, the FAPL relies on recital 16 in the preamble to Directive 93/83, according to which the principle of contractual
         freedom on which the directive is based will make it possible to limit the exploitation of these rights, especially as far
         as certain technical means of transmission or certain language versions are concerned.
      
      159. However, that recital concerns contractual restrictions which, by their nature, have effect only between contracting parties.
         Consequently, it also cites as examples only measures which the contracting parties can take, namely technical measures in
         connection with the broadcast, such as encryption and the language version of the broadcast. It is not possible to derive
         from that recital any rights vis-à-vis recipients of broadcasts who are not bound contractually.
      
      160. My interpretation is confirmed by recital 17 in the preamble to Directive 93/83. That recital states that, in arriving at
         the amount of the payment to be made for the rights acquired, the parties should take account of all aspects of the broadcast,
         such as the actual audience, the potential audience and the language version. The legislature thus proceeded on the basis
         of the assumption that the transmission of a satellite broadcast goes together with its reception and the payment must include
         such exploitation. The payment should obviously also cover reception outside the State of broadcast, whilst such reception
         must be forecast in particular with reference to the language version of the broadcast.
      
      161. The right to communicate copyright works by satellite under Article 2 of Directive 93/83 therefore goes together with the
         recipients’ right to receive and to watch such broadcasts.
      
      162. It is uncertain whether the foregoing considerations also apply to encrypted satellite broadcasts. Since encryption makes
         it possible to control access, it is conceivable that the broadcasting right is limited to the reception area agreed between
         the rights-holder and the broadcasting organisation. However, Article 1(2)(c) of Directive 93/83 states that there is communication
         to the public of encrypted broadcasts by satellite on condition that the means for decrypting the broadcast are provided to
         the public by the broadcasting organisation or with its consent. If these conditions are satisfied – as in the present case
         – the encrypted satellite broadcast will be equivalent to an unencrypted satellite broadcast. Encryption does not therefore
         affect the scope of the broadcasting right which justifies reception. 
      
      163. The broadcasting right is also not limited by conditions relating to the issue of decoder cards. These can at most have a
         contractually binding effect, but do not create any obligations for third parties.
      
      164. As far as Directive 93/83 is concerned, I therefore propose that Question 7 in Case C‑403/08 be answered to the effect that
         the right to communicate copyright works by satellite under Article 2 of Directive 93/83 includes the right also to receive
         and watch that broadcast abroad.
      
      D –    The fundamental freedoms
      165. The significance of the fundamental freedoms with regard to the use of the Greek decoder cards is addressed in particular
         in Questions 6 and 7 in Case C‑429/08, but also in Questions 7 and 8(b) and (c) in Case C‑403/08. The High Court wishes to
         ascertain whether Articles 28 EC, 30 EC and/or 49 EC preclude enforcement of a national law which makes it a criminal offence
         or a breach of copyright to receive a programme included in a broadcasting service provided from a place inside the United
         Kingdom with intent to avoid payment of any charge applicable to the reception of the programme. The Court mentions three
         sets of circumstances in Case C‑429/08, which may exist alternatively or cumulatively:
      
      (i)      The conditional access device was made by or with the consent of a service provider and originally supplied subject to limited
         contractual authorisation to use the device to gain access to a protected service only in a first Member State. It was nevertheless
         used to gain access to that protected service in a second Member State (in this case the United Kingdom) (this is also the
         purport of Question 8(b) in Case C‑403/08).
      
      (ii)      The conditional access device was made by or with the consent of a service provider and was originally procured and/or enabled
         by the provision of a false name and false residential address in the first Member State, thereby circumventing contractual
         territorial restrictions imposed on the export of such devices for use outside the first Member State.
      
      (iii) The conditional access device was made by or with the consent of a service provider and was originally supplied subject to
         a contractual condition that it be used only for domestic or private use, and not for commercial use (for which a higher subscription
         charge is payable). The device was nevertheless used in the United Kingdom for commercial purposes, namely showing live football
         broadcasts in a public house (this is also the purport of Question 8(c) in Case C‑403/08).
      
      166. I will begin by considering the first case and then go on to discuss whether the other two cases lead to a different conclusion.
      
      a)      The applicable fundamental freedom
      167. As decoder cards have been brought from Greece into the United Kingdom, the free movement of goods under Article 34 TFEU (formerly
         Article 28 EC) (56) may be applicable. In practice, however, such cards constitute a means, the key as it were, to gain access in the United
         Kingdom to a television programme broadcast from Greece. The provision of that programme is a service within the meaning of
         Article 56 TFEU (formerly Article 49 EC). (57)
      
      168. Where a national measure affects both the freedom to provide services and the free movement of goods, the Court will, in principle,
         examine it in relation to just one of those two fundamental freedoms if it is clear that, in the circumstances of the case,
         one of those freedoms is entirely secondary in relation to the other and may be attached to it. (58)
      
      169. As the Commission rightly states, the Court has already found, in connection with the sale of decoder devices for encrypted satellite television, that it is impossible to determine generally whether it is free movement of goods or
         freedom to provide services which should take priority. (59) However, the case in question concerned restrictions which were specifically directed at the trade in decoder devices and
         thus also indirectly made access to satellite television services more difficult.
      
      170. The disputed point in the present proceedings, by contrast, is not primarily the trade in the cards, but their use in order
         to gain access to the encrypted programmes in the United Kingdom. Furthermore, if we compare the material value of the cards
         with the prices charged for access to the programmes, the card is entirely secondary in importance. The references have therefore
         to be examined with regard to freedom to provide services.
      
      b)      Restriction of freedom to provide services
      171. Freedom to provide services requires the abolition of all restrictions on the free provision of services, even if those restrictions
         apply without distinction to national service providers and to those from other Member States, in so far as they are liable
         to prohibit, impede or render less advantageous the activities of a service provider established in another Member State where
         it lawfully provides similar services. Moreover, the freedom to provide services covers both providers and recipients of services. (60)
      
      172. In the present cases, the question whether the providers of television programmes are required to grant access to interested
         parties from other Member States on conditions comparable to those for nationals does not arise. Such an obligation would
         require freedom to provide services to have effect vis-à-vis third parties, something which the Court has not thus far accepted,
         at least in this form. (61)
      
      173. It is also not relevant whether the providers of television programmes are authorised to restrict access to their programmes
         contractually to certain territories. (62) Such contractual rules can have effect only between the contracting parties. However, in the present cases there are no contractual
         relations between the rights-holders and the providers of decoder cards in the United Kingdom or the publicans.
      
      174. Rather, it is uncertain whether freedom to provide services permits the recognition and enforcement of rights to satellite
         programmes on the basis of which the rights-holders can prohibit third parties not contractually linked to them from watching
         and showing those programmes in Member States other than those intended. By virtue of such rights, the utilisation of services
         from other Member States would be prevented, namely access to television programmes.
      
      175. This impairment of freedom to provide services is particularly intensive as the rights in question not only render the exercise
         of freedom to provide services more difficult, but also have the effect of partitioning the internal market into quite separate
         national markets. Similar problems exist with regard to access to other services, for example the sale of computer software,
         musical works, e-books or films via the internet.
      
      176. There is thus a serious impairment of freedom to provide services.
      
      c)      The justification for the restriction
      177. Since the freedom to provide services is one of the fundamental principles of the European Union, a restriction on that freedom
         is warranted only if it pursues a legitimate objective compatible with the Treaty and is justified by overriding reasons of
         public interest. If that is the case, it must also be suitable for securing the attainment of the objective which it pursues
         and not go beyond what is necessary in order to attain it. (63)
      
      178. Article 52(1) TFEU (formerly Article 46(1) EC), which is applicable to freedom to provide services by reason of Article 62 TFEU
         (formerly Article 55 EC), allows restrictions which are justified on grounds of public policy, public security or public health.
         In addition, the case-law has recognised a number of overriding reasons in the general interest which can justify restrictions
         of the freedom to provide services. (64)
      
      Protection of industrial and commercial property
      179. In the present context, protection of industrial and commercial property is particularly at issue. (65) This justifies restrictions which are necessary to safeguard rights which constitute the specific subject-matter of such
         property. (66) It is therefore necessary to examine whether there exist rights to satellite transmissions of football matches, the specific
         subject-matter of which requires a partitioning of the internal market.
      
      180. In the field of the free movement of goods, it is primarily the exploitation of rights through the sale of copies of the work
         that is affected. Such exploitation is based on the exclusive right to copy the work and to place the copies on the market.
         This exclusive right is exhausted when a product has been lawfully distributed on the market in a Member State by the actual
         proprietor of the right or with his consent. (67) Apart from particular situations, such as the resale right for the benefit of the author of an original work of art, (68) there are no rights which preclude the re-sale of such goods within (69) the internal market. Rather, with the sale the rights-holder has already realised the economic value of the intellectual
         property in question. (70)
      
      181. The copyright in gramophone records which were lawfully placed on the market in a Member State did not therefore preclude
         their sale in another Member State. (71) QC Leisure and Ms Murphy rely on this case-law in order to justify their business practices.
      
      182. However, the FAPL takes the view that, in the field of the provision of services, there is no exhaustion comparable to the
         movement of goods. 
      
      183. This is surprising, because restrictions on the fundamental freedoms must, as a rule, be justified by reference to the same
         principles. 
      
      184. Admittedly, some services differ from goods in that they cannot be re-used per se, for example the services provided by hairdressers.
         With the payment for the provision of the service the economic value is realised, but the service cannot be passed on as such.
         In this sense, there is actually no scope for an ‘exhaustion’ of the right to the service. 
      
      185. Other services, by contrast, do not differ significantly from goods. Computer software, musical works, e-books, films etc.
         which are downloaded from the internet can easily be passed on in electronic form. This is also illustrated by the fact that
         additional digital rights management measures are needed to prevent them being passed on. In these areas such a strict delimitation
         of the two fundamental freedoms would be arbitrary.
      
      186. The examples cited – music, films or books – also show that the question at issue has considerable importance for the functioning
         of the internal market beyond the scope of the cases in the main proceedings. A delimitation of the markets based on intellectual
         property rights means at best that access to the goods in question will be granted subject to differing conditions, in particular
         as regards prices or digital rights management. Often, however, access to such goods is completely precluded on many markets,
         either because certain language versions are offered only to customers from certain Member States or because customers from
         certain Member States cannot acquire the product at all. For example, in autumn 2010 dealers from the United Kingdom announced
         that they could no longer sell e-books to customers outside that Member State. (72) No comparable products are offered for sale in other Member States in the case of many English-language books.
      
      187. At the same time, in the case of products offered which, as in the main proceedings, are based on conditional access or which
         are downloaded only from the internet, a market delimitation can be achieved much more effectively than in the case of physical
         goods such as books or CDs. The latter can be traded as a result of exhaustion in the internal market. For consumers, such
         barriers create unnecessary incentives to procure the corresponding goods illegally, that is to say, in particular without
         any remuneration for the rights-holder.
      
      188. It is for that reason necessary to examine carefully whether the principle of exhaustion applies mutatis mutandis in the present context, that is to say, whether the specific subject-matter of the rights in question requires that the internal
         market be partitioned.
      
      189. The FAPL relies, for each broadcast, on its rights to some 25 works, including films, artistic works, sound recordings and
         music. In some cases those works are protected under European Union law and in some cases under national law.
      
      190. Whilst the rights to individual works which occur together in the broadcast are disputed in the present proceedings, there
         is no need to examine them further here. For the purposes of the present analysis, reference can be made in general to the
         rights to the broadcast. First of all, there are indisputably at least certain rights to that broadcast and, secondly, it
         must be assumed that the broadcast is transmitted with the consent of all the rights-holders concerned. The specific subject-matter
         of that package of rights can be seen, at least in so far as is relevant in the present context, in its commercial exploitation. (73)
      
      191. The transmission of football matches is exploited through the charge for the decoder cards. Such exploitation is not undermined
         by the use of Greek decoder cards, as charges were paid for those cards.
      
      192. Whilst those charges are not as high as the charges imposed in the United Kingdom, there is no specific right to charge different
         prices for a work in each Member State. Rather, it forms part of the logic of the internal market that price differences between
         different Member States should be offset by trade. (74) The possibility, demanded by the FAPL, of marketing the broadcasting rights on a territorially exclusive basis amounts to
         profiting from the elimination of the internal market. In this regard, contrary to the view taken by the FAPL, the present
         proceedings fall within the scope of the case-law on the exhaustion of rights to goods.
      
      193. However, the FAPL takes the view that, according to the case of Coditel I, (75) the rights claimed by it are compatible with freedom to provide services. Coditel I concerned German television being fed into the Belgian cable distribution network. In that context, in particular, a film
         transmitted in Germany with the consent of the rights-holder was shown. This was challenged by an undertaking which had acquired
         the rights to show that film in Belgian cinemas and on Belgian television.
      
      194. The Court held at the time that the right of a copyright owner to require fees for any showing of a cinema film is part of
         the essential function of copyright. (76) There could be no objection in principle to partitioning that exploitation on a territorial basis, possibly even on the basis
         of the borders of the Member States. (77)
      
      195. This does not, however, imply anything capable of calling into question the above considerations in the present context. The
         broadcast was transmitted as agreed between the rights-holders and the Greek broadcasting organisation. In addition, a fee
         was charged for each showing of the broadcast, albeit on the basis of Greek rates.
      
      196. Coditel I, by contrast, did not directly concern an unauthorised and unremunerated showing in a cinema, but the retransmission of an
         authorised showing on television. In this regard, the Court stated that the showing on television could impair the exploitation
         of the rights to showing in the cinema and that it would therefore seem reasonable to permit a television showing only with
         a certain delay. From the perspective of the 1970s, it added that television showings were possible in purely practical terms
         only in the context of national monopolies. (78) On the basis of the specific conditions existing on the television and cinema markets at that time, the Court therefore concluded
         that the allocation of television rights on a territorial basis was justified. 
      
      197. The situation in Coditel I is not comparable to the situation here. The partitioning of the internal market for live football transmissions is precisely
         not intended to protect any other form of exploitation of the transmitted football match. Rather, the direct aim of partitioning
         the markets is to optimise exploitation of the same work within the different market segments.
      
      198. In addition, European Union law has developed in the meantime: under Directive 93/83 satellite broadcasting rights in a Member
         State include transmission in other Member States within the broadcasting area and are also to be correspondingly remunerated.
         In addition, because access to the broadcast in the present proceedings even requires the purchase of a decoder card, each
         individual recipient pays a fee.
      199. As a further – implicit – factor, Coditel I also involved the exploitation, on the Belgian cable network, of the film transmitted on German television, without a fee
         having been paid. This would be regarded today as (further) communication to the public within the meaning of Article 3(1)
         of Directive 2001/29 (79) and Article 8(3) of Directive 2006/115 to which the rights-holder can object. Communication by a further broadcasting organisation
         would be relevant. (80) However, there is no need for a restriction of freedom to provide services in the case of simple communication in order to
         protect the specific subject-matter of the right to such communication to the public.
      
      200. In summary, it must be stated that a partitioning of the internal market for the reception of satellite broadcasts is not
         necessary in order to protect the specific subject-matter of the rights to live football transmissions.
      
      201. It could, finally, be argued, to counter this approach, that it could make access to transmissions of football matches more
         difficult. If the FAPL cannot prevent the use of cheaper decoder cards from other Member States, the possibility cannot be
         discounted that in future it will offer transmission rights only in the most lucrative market in the European Union – the
         United Kingdom – or make the service offered on other markets conditional on the charging of prices similar to those in the
         United Kingdom. It would then be more difficult to gain access to the transmissions in Member States such as Greece.
      
      202. That would be an economic decision to be taken by the holder of the rights, however. It will ultimately depend on how that
         holder can best exploit his rights on the whole. In this regard it would appear relevant in particular whether alternative
         marketing models can be developed, as the Commission demands, or whether restricting the commentary to certain language versions
         might create a sufficiently effective practical delimitation of the markets in order to continue to serve the different national
         markets at different prices.
      
      The closed periods
      203. As an additional ground of justification, which is not, however, dealt with in the orders for reference, the FAPL claims that
         the football associations can adopt a window of two-and-a-half hours during which no football matches are to be transmitted.
         This is the core period during which the vast majority of football matches in the associations’ top leagues take place. The
         window differs from one country to the next because it depends on the different customs for the scheduling of matches. Through
         a territorial allocation of transmission rights, the associations and the broadcasting organisations can ensure that no transmission
         infringes the national window.
      
      204. The FAPL argues convincingly that the importation of decoder cards would make it more difficult, or even impossible, to enforce
         this closed period. The windows protected in the country of origin of the card may differ from those in the place where the
         card is used, or there may even be no such protection. At the same time, competition between pubs is impaired. Users of domestic
         decoder cards cannot show any matches during the closed periods, whereas users of imported cards can. Preventing such a distortion
         of competition is also a legitimate interest.
      
      205. However, the closed periods can justify a restriction of freedom to provide services only in so far as they are appropriate
         for securing the attainment of the objective which they pursue and do not go beyond what is necessary in order to attain it. (81) Furthermore, the measures designed to implement such a policy must in no case be disproportionate in relation to that aim. (82)
      
      206. The purpose of the closed period is to ensure that spectators are not deterred from attending local football matches of any
         kind and/or participating in matches at amateur and/or youth level on account of television transmissions which coincide with
         such matches. (83) Participation in football and its character as a direct spectator sport should not be affected by television transmissions.
         
      
      207. Contrary to the view taken by QC Leisure, this is not a specific commercial interest, but primarily a sporting interest which
         is in principle to be recognised in European Union law. This is shown by the powers in relation to sport which were conferred
         on the European Union by the Lisbon Treaty (Articles 6(e) TFEU and 165 TFEU). In particular, they require account to be taken
         of the specific nature of sport and its structures based on voluntary activity. (84) From an economic point of view, it would certainly be more attractive to allow the live transmission of all matches. (85)
      
      208. However, legitimate reliance on that aim as a justification for a partitioning of the internal market is called into question
         in the present proceedings by the economic interests in the partitioning of the market which also exist. The football associations
         are required to assess the need for closed periods and they should in principle enjoy a broad margin of discretion in this
         regard. It cannot be ruled out a priori, however, that the decision by the English Football Association to make use of a closed
         period is also based at least in part on safeguarding the economic interest of the most important members of the association
         in partitioning the internal market for live football transmissions. A particularly strict test is therefore to be applied
         to the demonstration of the need for closed periods.
      
      209. It is, in fact, doubtful whether closed periods are capable of encouraging attendance at matches and participation in matches.
         Both activities have a completely different quality to the following of a live transmission on television. It has not been
         adequately shown to the Court that the closed periods actually encourage attendance at and participation in matches. Indeed,
         there is evidence to refute this claim: for example, in an investigation of the closed periods under competition law the Commission
         found that only 10 of 22 associations had actually adopted a closed period. No closed periods were adopted in France, Germany,
         Italy and Spain, or in Northern Ireland, that is to say, within the sphere of influence of English football. (86) Furthermore, in Germany today all Bundesliga matches are evidently transmitted live without attendance at matches in the
         top two leagues suffering as a result. (87)
      
      210. This does not mean that it cannot be shown in the proceedings before the High Court that different conditions apply in English
         football which mandatorily require protection by means of closed periods. However, such evidence would have to show that live
         transmissions have substantial detrimental effects on attendance at matches and/or participation in football matches in order
         for enforcement of the closed periods to be able to prevail over the adverse effects on the internal market.
      
      Interim conclusion
      211. Consequently, neither the specific subject-matter of the rights to the transmission of football matches nor – according to
         the information available to the Court – the closed periods for live transmissions justify a partitioning of the internal
         market.
      
      d)      Justification in the event of the provision of false information in procuring the decoder cards
      212. The order for reference in Case C‑429/08 also raises the question of whether the conclusion reached thus far is affected where
         the conditional access device was procured and/or enabled by the provision of a false name and a false residential address
         in the first Member State, thereby circumventing contractual territorial restrictions imposed on the export of such devices
         for use outside the first Member State. 
      
      213. It is clear that these circumstances were expressly not made the subject of the proceedings which form the basis of Case C‑403/08. (88) Ms Murphy claims that she was unaware of such circumstances. 
      
      214. As Ms Murphy rightly submits, those circumstances cannot influence the application of the fundamental freedoms in relation
         to the final customers for the decoder cards. Agreements between individuals and the associated circumstances cannot restrict
         the exercise by third parties of the fundamental freedoms; such agreements would otherwise be to the detriment of third parties.
         Furthermore, third parties cannot know, as a rule, how the cards were acquired and would have no opportunity to assess whether
         they could invoke the fundamental freedoms should those agreements be relevant.
      
      215. It is therefore irrelevant whether decoder cards were procured and/or enabled in the other Member State by the provision of
         a false name and a false residential address.
      
      e)      Effects of the restriction to private or domestic use
      216. Lastly, both in Case C‑429/08 (Question 6(iii)) and in Case C‑403/08 (Question 8(c)), questions are asked as to the significance
         of a contractual restriction on using decoder cards in the State of origin only for domestic or private use, but not for commercial
         use, for which a higher subscription charge is payable.
      
      217. Such an agreement can, as such, also have effects only between the contracting parties. 
      
      218. As has already been explained, Article 3(1) of Directive 2001/29 likewise does not require the creation of rights which can
         be enforced vis-à-vis third parties. (89)
      
      219. However, the referring court in Case C‑403/08 considers it possible that such rights may exist under national law, in particular
         with regard to the Premier League Anthem, which is played in connection with broadcasts. European Union copyright law, in
         particular Directive 2001/29, would not preclude such a provision since it is restricted to a single legal context. As recital
         7 in the preamble to that directive in particular stresses, differences between domestic rules not adversely affecting the
         functioning of the internal market need not be removed or prevented.
      
      220. It is therefore necessary to examine whether freedom to provide services would be an obstacle to such national rights.
      
      221. If the cards are authorised in Greece only for domestic or private use, preventing their use in British pubs would not be
         discriminatory. It would nevertheless be a restriction of freedom to provide services because the pubs would be unable to
         avail themselves of that service.
      
      222. This would be justified if it were recognised in the internal market that there are rights which allow the authorisation to
         receive television broadcasts to be restricted to domestic or private use. In principle, authors have an interest in sharing
         in the profits generated as a result of profit-oriented use of their works. Although the European Union does not protect this
         interest, it has at least recognised it at the international-law level. (90) If the national legislature recognises that authors have a right in relation to such use with a corresponding specific subject-matter,
         that right can justify a restriction of freedom to provide services.
      
      223. Although a contractual restriction on using decoder cards in the State of origin only for domestic or private use cannot therefore
         justify a territorial restriction of freedom to provide services, the Member State in question may, none the less, in principle
         set out rights which allow authors to object to the communication of their works in pubs.
      
      f)      Question 9 in Case C‑403/08
      224. The answer to Question 9 in Case C‑403/08 follows from the foregoing considerations.
      
      225. The High Court asks, first of all, whether freedom to provide services precludes enforcement 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, in the case where that card has been issued by
         the service provider in another Member State subject to the condition that the decoder card is authorised only for use in
         that other Member State.
      
      226. In this regard the findings for the rest of the broadcast stand: on the one hand, freedom to provide services precludes such
         a partitioning of the internal market; on the other, the Member States may provide for more extensive protection of rights-holders
         with regard to communication to the public, for instance for musical works.
      
      227. The second part of this question is more problematic, namely whether it makes 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.
      
      228. In the cases in the main proceedings, the protection of such rights under purely national law gives rise to a restriction
         of freedom to provide services. This can be justified if it is proportionate in relation to the protection of the rights in
         question. (91)
      
      229. A prohibition of reception would clearly be reasonable if rights existed to the whole broadcast or substantial parts which
         permitted an objection to be made to its communication in a pub. 
      
      230. If, on the other hand, secondary elements are involved, the economic value of which represents only a very small portion of
         the value of the broadcast as a whole and which are only of very low importance or are even without importance for viewers,
         it would be disproportionate to prohibit the reception of the broadcast as a whole for their protection. (92) This does not rule out ensuring an adequate remuneration in some other way. A flat-rate levy paid to a collecting society
         by publicans who show the television programme might be imagined, for example. (93)
      
      231. It is for the referring court to decide which of the two cases applies.
      
      232. Freedom to provide services does not therefore preclude national rules which permit the holder of rights to a broadcast –
         for example, pursuant to Article 14(3) of the TRIPS Agreement – to object to the communication of the broadcast in a pub,
         provided that the restriction of freedom to provide services stemming from the exercise of that right is not disproportionate
         to the share of the protected rights to the broadcast.
      
      g)      Question 7 in Case C‑429/08
      233. This question concerns the prohibition of discrimination on grounds of nationality under Article 18 TFEU (formerly Article 12 EC).
         Such discrimination could exist in so far as the criminal provision applied to Ms Murphy relates only to broadcasts provided
         from a place in the United Kingdom, whereas broadcasts from other Member States are not protected. Apparently, regard is not
         had to the Greek broadcaster for the purpose of applying that national provision, but to the fact that the broadcast was originally
         produced in the United Kingdom.
      
      234. This question is relevant only in so far as the national rule is not already precluded by freedom to provide services and
         Directive 93/83.
      
      235. The Commission correctly argues that, apart from freedom to provide services, Article 18 TFEU has no independent significance
         in principle. (94) This question must therefore be examined from the perspective of freedom to provide services.
      
      236. The alleged discrimination could stem from the fact that providers from the United Kingdom are protected, whereas providers
         from other Member States are not. The latter would have to fear that their services will be used in the United Kingdom without
         remuneration or at least that the rates which they charge will be circumvented in the United Kingdom by means of the importation
         of decoder cards from other Member States. There is no clear justification for discrimination against foreign providers. However,
         there is no need for the Court to examine this point any further in the present proceedings.
      
      237. The point at issue is not the rights of foreign providers, but whether domestic providers can rely on these protective provisions.
         Even if the form of protection were to discriminate against foreign providers, this could not preclude domestic providers
         from availing themselves of the protection which they enjoy under national law. Rather, the question would arise whether the
         protection must also be extended to foreign providers. (95)
      
      238. It is consequently irrelevant for the purposes of the present reference for a preliminary ruling whether the national law
         infringes the freedom to provide services because it applies to programmes included in a broadcasting service provided from
         a place in the United Kingdom but not to programmes from any other Member State.
      
      h)      Conclusion on Questions 6 and 7 in Case C‑429/08 and on Questions 7, 8(c) and 9 in Case C‑403/08
      239. As an interim conclusion, it must be stated that freedom to provide services under Article 56 TFEU precludes provisions which
         prohibit, on grounds of protection of intellectual property, the use of conditional access devices for encrypted satellite
         television in a Member State which have been placed on the market in another Member State with the consent of the holder of
         the rights to the broadcast. It is irrelevant whether such devices were procured and/or enabled in the other Member State
         by the provision of a false name and false residential address. An individual agreement to use decoder cards only for domestic
         or private use also cannot justify a territorial restriction of freedom to provide services.
      
      240. Freedom to provide services does not preclude national rules which allow the holder of rights to a broadcast to object to
         its communication in a pub, provided that the restriction of freedom to provide services stemming from the exercise of that
         right is not disproportionate to the share of the protected rights to the broadcast.
      
      241. It is irrelevant, for the purposes of the present references for preliminary rulings, whether the provision of national law
         infringes freedom to provide services because it applies to programmes included in a broadcasting service provided from a
         place in the United Kingdom but not to programmes from any other Member State.
      
      242. Lastly, it should be pointed out that the Commission decision on the joint selling of the media rights of the FA Premier League
         on an exclusive basis does not call that conclusion into question. (96) Even if the decision were to be construed as meaning that the Commission regards the territorial partitioning of the internal
         market as a condition for authorisation, the Commission may not impose any restrictions on the freedom to provide services
         which extend further than the Treaties. (97)
      
      E –    Competition law
      243. Question 10 in Case C‑403/08 and Question 8 in Case C‑429/08 are identical. With regard to the application of the prohibition
         of anti-competitive practices under Article 101(1) TFEU (formerly Article 81(1) EC), the referring courts are seeking to ascertain
         whether it is sufficient that a licence agreement concerning the territorially limited transmission of a broadcast has the
         object of preventing, restricting or distorting competition or whether an actual impairment of competition must be shown.
      
      244. A concerted practice pursues an anti-competitive object for the purpose of Article 101(1) TFEU where, according to its content
         and objectives and having regard to its legal and economic context, it is liable in an individual case to result in the prevention,
         restriction or distortion of competition within the common market. It is not necessary for there to be actual prevention,
         restriction or distortion of competition or a direct link between the concerted practice and consumer prices. (98) It is thus not necessary to examine the effects of an agreement in order to establish its anti-competitive object. (99)
      
      245. It must therefore be examined in the present cases whether licence agreements pursue an anti-competitive object 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.
      
      246. In order to assess the anti-competitive object of an agreement, regard must be had, in particular, to the content of its provisions,
         the objectives which it seeks to attain and the legal and economic context of which it forms a part. (100)
      
      247. An agreement between a producer and a distributor which might tend to restore the national divisions in trade between Member
         States might be such as to frustrate the Treaty’s objective of achieving the integration of national markets through the establishment
         of a single market. Thus, on a number of occasions, the Court has held agreements aimed at partitioning national markets according
         to national borders or making the interpenetration of national markets more difficult, in particular those aimed at preventing
         or restricting parallel exports, to be agreements the object of which is to restrict competition within the meaning of Article
         101(1) TFEU. (101)
      
      248. A contractual obligation linked to a broadcasting 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 has the same effect
         as agreements to prevent or restrict parallel exports. Such an obligation is intended to prevent any competition between broadcasters
         through a reciprocal compartmentalisation of licensed territories. Such licences with absolute territorial protection are
         incompatible with the internal market. (102) There is therefore no reason to treat such agreements any differently from agreements intended to prevent parallel trade.
      
      249. The examination of freedom to provide services (103) confirms this conclusion since conflicting assessments of the fundamental freedoms and competition law are to be avoided
         in principle. (104)
      
      250. It must also be pointed out that an anti-competitive agreement within the meaning of Article 101(1) TFEU can be justified
         pursuant to Article 101(3) TFEU. However, a person who relies on that provision must demonstrate, by means of convincing arguments
         and evidence, that the conditions for obtaining an exemption are satisfied. (105) In this connection, it would appear that similar considerations should apply as in the examination of whether a restriction
         of freedom to provide services is justified.
      
      251. Question 10 in Case C‑403/08 and Question 8 in Case C‑429/08 must therefore be answered to the effect that 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, such licence agreements are liable to prevent,
         restrict or distort competition. They are therefore incompatible with Article 101(1) TFEU; it is not necessary to show that
         such effects have actually occurred.
      
      V –  Conclusion
      252. I therefore propose that the Court answer the questions referred for preliminary ruling as follows:
      
      1.      Question 1 in Case C‑403/08:
      Being ‘designed’ or ‘adapted’ within the meaning of Article 2(e) of Directive 98/84/EC means the manufacture or modification
         of equipment with the intention of providing access to a protected service in an intelligible form without the authorisation
         of the service provider. 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, that
         device does not therefore become an ‘illicit device’ within the meaning of Article 2(e) of Directive 98/84 if it is used to
         obtain access to that protected service in a place or in a manner or by a person outside the authorisation of the service
         provider. 
      
      2.      Question 3 in Case C‑429/08:
      Article 3(2) of Directive 98/84 does not preclude a Member State from invoking a provision of national law that prevents use
         of a conditional access device in the event of breach of contractual agreements concerning the accessibility of programmes
         in certain Member States, following the provision of false names and/or addresses in the acquisition of the access device,
         or the use, for commercial purposes, of an access device intended for private or domestic use.
      
      3.      Question 4 in Case C‑403/08:
      (a)      The question whether works have been reproduced in whole or in part must be answered by means of an interpretation of Article 2
         of Directive 2001/29/EC.
      
      (b)      Acts of reproduction occur where frames of digital video and audio are created within the memory of a decoder, as those frames
         constitute part of the broadcast author’s own intellectual creation.
      
      (c)      The display of a broadcast on a screen also constitutes reproduction.
      4.      Question 5 in Case C‑403/08:
      Transient copies of a work created on a television screen linked to the decoder box have independent economic significance
         within the meaning of Article 5(1) of Directive 2001/29, whereas transient copies created in a decoder’s memory do not.
      
      5.      Question 6 in Case C‑403/08:
      A copyright work is not communicated to the public by wire or wireless means, within the meaning of Article 3(1) of Directive
         2001/29, where it is received or viewed as part of a satellite broadcast at commercial premises (for example, a bar) or shown
         at those premises, free of charge, via a single television screen and speakers to members of the public present in those premises.
      
      6.      Question 7 in Case C‑403/08:
      The right to communicate copyright works by satellite under Article 2 of Directive 93/83/EC includes the right also to receive
         and watch that broadcast abroad.
      
      7.      Questions 6 and 7 in Case C‑429/08 and Questions 7, 8(c) and 9 in Case C‑403/08:
      (a)      Freedom to provide services under Article 56 TFEU (previously Article 49 EC) precludes provisions which prohibit, on grounds
         of protection of intellectual property, the use of conditional access devices for encrypted satellite television in a Member
         State which have been placed on the market in another Member State with the consent of the holder of the rights to the broadcast.
         It is irrelevant whether such devices were procured and/or enabled in the other Member State by the provision of a false name
         and false residential address. An individual agreement to use decoder cards only for domestic or private use also does not
         affect that conclusion. 
      
      (b)      Freedom to provide services does not preclude national rules which allow the holder of rights to a broadcast to object to
         its communication in a pub, provided that the restriction of freedom to provide services stemming from the exercise of that
         right is not disproportionate to the share of the protected rights to the broadcast.
      
      (c)      It is irrelevant for the purposes of the present references for preliminary rulings whether the provision of national law
         infringes freedom to provide services because it applies to programmes included in a broadcasting service provided from a
         place in the United Kingdom but not from any other Member State.
      
      8.      Question 10 in Case C‑403/08 and Question 8 in Case C‑429/08:
      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, such licence
         agreements are liable to prevent, restrict or distort competition. They are therefore incompatible with Article 101(1) TFEU;
         it is not necessary to show that such effects have actually occurred.
      
      1 –	Original language: German.
      
      2 –	Directive 98/84/EC of the European Parliament and of the Council of 20 November 1998 (OJ 1998 L 320, p. 54).
      
      3 –	Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 (OJ 2001 L 167, p. 10).
      
      4 –	Council Directive 93/83/EEC of 27 September 1993 (OJ 1993 L 248, p. 15).
      
      5 –	OJ 1994 L 336, p. 1.
      
      6 –	OJ 2000 L 89, p. 6.
      
      7 –	As set out in the German Bundesgesetzblatt 1965 II, p. 1245.
      
      8 –	OJ 1994 L 1, p. 194.
      
      9 –	OJ 1992 L 346, p. 61.
      
      10 –	Directive 2006/115/EC of the European Parliament and of the Council of 12 December 2006 on rental right and lending right
         and on certain rights related to copyright in the field of intellectual property (codified version) (OJ 2006 L 376, p. 28).
      
      11 –      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 (OJ 1989 L 298, p. 23), codified by Directive
         2010/13/EU of the European Parliament and of the Council of 10 March 2010 on the coordination of certain provisions laid down
         by law, regulation or administrative action in Member States concerning the provision of audiovisual media services (OJ 2010
         L 95, p. 1).
      
      12 –	See Articles 6 TFEU and 165 TFEU, Declaration No 29 in the Final Act of the Intergovernmental Conference on the Treaty
         of Amsterdam signed on 2 October 1997 (OJ 1997 C 340, p. 136) and the ‘Declaration on the specific characteristics of sport
         and its social function in Europe, of which account should be taken in implementing common policies’, Nice European Council
         (7, 8 and 9 December 2000), Presidency conclusions (paragraph 52 and Annex IV; see in particular points 1, 7 and 17 of that
         declaration).
      
      13 –	Case C‑49/07 MOTOE [2008] ECR I‑4863, paragraph 22 and the case-law there cited.
      
      14 –	Case C‑308/06 Intertanko and Others [2008] ECR I‑4057, paragraph 69.
      
      15 –	Case C‑308/06 Intertanko and Others, cited in footnote 14, paragraphs 70 and 71.
      
      16 –	Case C‑5/08 Infopaq International [2009] ECR I‑6569, paragraph 27 et seq.; see also, with regard to Directive 2001/29 in general, Case C‑467/08 Padawan [2010] ECR I‑0000, paragraphs 32 and 35.
      
      17 –	Infopaq International, cited in footnote 16, in particular paragraph 37 et seq.
      
      18 –	Infopaq International, cited in footnote 16, paragraph 45.
      
      19 –	Infopaq International, cited in footnote 16, paragraph 55.
      
      20 –	Infopaq International, cited in footnote 16, paragraph 64.
      
      21 –	Infopaq International, cited in footnote 16, paragraphs 56 and 57.
      
      22 –	Infopaq International, cited in footnote 16, paragraph 58.
      
      23 –	COM(97) 628, Article 5, paragraph 3 (p. 29 of the English version).
      
      24 –	See below, points 105 and 108 et seq.
      
      25 –	See above, point 68 et seq.
      
      26 –	Case 152/84 Marshall [1986] ECR 723, paragraph 48; Case C‑91/92 Faccini Dori [1994] ECR I‑3325, paragraph 20; and Case C‑555/07 Kücükdeveci [2010] ECR I‑0000, paragraph 46.
      
      27 –	Inter alia, Case C‑415/93 Bosman [1995] ECR I‑4921, paragraph 59, and Joined Cases C‑295/04 to C‑298/04 Manfredi and Others [2006] ECR I‑6619, paragraph 26.
      
      28 –	Case C‑105/03 Pupino [2005] ECR I‑5285, paragraph 30; Case C‑404/07 Katz [2008] ECR I‑7607, paragraph 31; and Case C‑82/09 Dimos Agiou Nikolaou [2010] ECR I‑0000, paragraph 15.
      
      29 –	See, inter alia, Case C‑415/93 Bosman, cited in footnote 27, paragraph 61, and Case C‑344/04 IATA and ELFAA [2006] ECR I‑403, paragraph 24.
      
      30 –	COM(97) 628, Article 3, paragraph 2 et seq. (pp. 25 and 26 of the English version).
      
      31 –	COM(97) 628, Article 3, paragraph 3 (p. 26 of the English version).
      
      32 –	Case C‑306/05 SGAE [2006] ECR I‑11519; and order of 18 March 2010 in Case C‑136/09 Organismos Sillogikis Diacheirisis Dimiourgon Theatrikon kai Optikoakoustikon Ergon, not published in the ECR.
      
      33 –	SGAE, cited in footnote 32, paragraph 37 et seq.
      
      34 –	SGAE, cited in footnote 32, paragraph 44.
      
      35 –	Guide to the Berne Convention (Geneva, 1978).
      
      36 –	WIPO Guide, Note 11bis. 11 et seq.
      
      37 –	COM(97) 628, Article 3, paragraph 1 (p. 25 of the English version).
      
      38 –	COM(97) 628, Article 3, paragraph 1 (p. 25 of the English version).
      
      39 –	Document A4-0026/99, Amendment 13 (OJ 1999 C 150, p. 171, at p. 174).
      
      40 –	Amended proposal for a European Parliament and Council Directive on the harmonisation of certain aspects of copyright and
         related rights in the Information Society, COM(1999) 250 final (OJ 1999 C 180, p. 6), recital 16.
      
      41 –	See Council documents 14238/99 of 22 December 1999, p. 5, footnotes 6 and 7, 5168/00 of 10 January 2000, p. 4, and 5499/00
         of 24 January 1999, p. 2 et seq.
      
      42 –	Council document 5168/00 of 10 January 2000, p. 4, paragraph 9.
      
      43 –	Council document 5168/00 of 10 January 2000, p. 4, paragraph 11.
      
      44 –	OJ 1994 L 1, p. 194.
      
      45 –	With regard to the effect of this Protocol, see the Opinion of Advocate General La Pergola in Case C‑293/98 Egeda [2000] ECR I‑629, point 17.
      
      46 –	See Paragraph 87(1)(3) of the German Urheberrechtsgesetz (Law on copyright) and, in this regard, Wandtke/Bullinger-Erhard, Urheberrecht, 3rd edition 2009, paragraph 23, and Diesbach/Bormann/Vollrath, ‘PubliC‑Viewing’ als Problem des Urheber- und Wettbewerbsrechts,
         Zeitschrift für Urheber- und Medienrecht 2006, p. 265 (266 et seq.).
      
      47 –	It would appear to be sufficient, however, if a pub pays a relatively small royalty to a collecting society in order to
         comply with the obligations under that provision; see the survey of rates of the Gesellschaft für musikalische Aufführungs-
         und mechanische Vervielfältigungsrechte, http://www.gema.de/fileadmin/inhaltsdateien/musiknutzer/tarife/tarife_ad/tarifuebersicht_gaststaetten.pdf.
      
      48 –	See, most recently, Case C‑428/08 Monsanto Technology [2010] ECR I‑0000, paragraph 71.
      
      49 –	See the judgment in Case C‑293/98 Egeda, cited in footnote 45, in comparison with the Opinion of Advocate General La Pergola in that case, point 17 et seq., and
         Case C‑28/04 Tod’s and Tod’s France [2005] ECR I‑5781, paragraph 14.
      
      50 –	SGAE, cited in footnote 32, paragraph 41.
      
      51 –	SGAE, cited in footnote 32, paragraph 30.
      
      52 –	SGAE, cited in footnote 32, paragraph 40.
      
      53 –	See the Opinion of Advocate General Sharpston in SGAE, cited in footnote 32, point 63.
      
      54 –	With regard to the regulatory content of Directive 93/83 in relation to communication to the public, see Case C‑293/98
         Egeda, cited in footnote 49, paragraph 25, and SGAE, cited in footnote 32, paragraph 30.
      
      55 –	See above, point 82 et seq. and point 95 et seq.
      
      56 –	With regard to the application of the provisions of the Lisbon Treaty, see my Opinion in Case C‑379/09 Casteels [2010] ECR I‑0000, point 25.
      
      57 –	Case C‑17/00 De Coster [2001] ECR I‑9445, paragraph 28.
      
      58 –	Case C‑36/02 Omega [2004] ECR I‑9609, paragraph 26 and the case-law cited.
      
      59 –	Case C‑390/99 Canal Satélite Digital [2002] ECR I‑607, paragraph 32.
      
      60 –	Case C‑42/07 Liga Portuguesa de Futebol Profissional and Bwin International [2009] ECR I‑7633, paragraph 51 and the case-law cited, and Joined Cases C‑447/08 and C‑448/08 Sjöberg [2010] ECR I‑0000, paragraph 32. 
      
      61 –	However, see the Opinion of Advocate General Mengozzi in Case C‑341/05 Laval un Partneri [2007] ECR I‑11767, point 156 et seq., in particular point 159, and the case-law on collective agreements there cited.
      
      62 –	This is a matter of competition law which I will examine below in point 243 et seq. of this Opinion.
      
      63 –	See, for example, Case C‑341/05 Laval un Partneri, cited in footnote 61, paragraph 101 and the case-law cited.
      
      64 –	Joined Cases C‑447/08 and C‑448/08 Sjöberg, cited in footnote 60, paragraph 36.
      
      65 –	Case 262/81 Coditel and Others II [1982] ECR 3381, paragraph 13, and Case C‑255/97 Pfeiffer [1999] ECR I‑2835, paragraph 21.
      
      66 –	Case C‑255/97 Pfeiffer, cited in footnote 65, paragraph 22, and, with regard to free movement of goods, Case 16/74 Centrafarm and de Peijper [1974] ECR 1183, paragraph 7; Case C‑10/89 HAG GF [1990] ECR I‑3711, paragraph 12; and Case C‑115/02 Rioglass and Transremar [2003] ECR I‑12705, paragraph 23.
      
      67 –	Case 119/75 Terrapin (Overseas) [1976] ECR 1039, paragraph 6; Joined Cases 55/80 and 57/80 Musik-Vertrieb membran and K-tel International [1981] ECR 147, paragraph 10; and in Case C‑200/96 Metronome Musik [1998] ECR I‑1953, paragraph 14.
      
      68 –	Directive 2001/84/EC of the European Parliament and of the Council of 27 September 2001 on the resale right for the benefit
         of the author of an original work of art (OJ 2001 L 272, p. 32); see, in this regard, Case C‑518/08 Gala-Salvador Dalí and Visual Entidad de Gestión de Artistas Plásticos [2010] ECR I‑0000.
      
      69 –	On the other hand, the Court rejected international exhaustion as a result of goods having been placed on the market outside
         the internal market in Case C‑355/96 Silhouette International Schmied [1998] ECR I‑4799, paragraph 22, and Case C‑16/03 Peak Holding [2004] ECR I‑11313.
      
      70 –	With regard to trade mark rights, see Case C‑16/03 Peak Holding, cited in footnote 69, paragraph 40.
      
      71 –	Joined Cases 55/80 and 57/80 Musik-Vertrieb membran and K-tel International, cited in footnote 67, paragraph 10.
      
      72 –	Gallagher, Waterstones halts overseas e-book sales, report of 26 October 2010, http://www.thebookseller.com/news/132290-waterstones-halts-overseas-e-book-sales.html, visited
         on 9 November 2010.
      
      73 –	See Joined Cases 55/80 and 57/80 Musik-Vertrieb membran and K-tel International, cited in footnote 67, paragraph 12 et seq., and Case 158/86 Warner Brothers and Metronome Video [1988] ECR 2605, paragraph 13 et seq.
      
      74 –	See Joined Cases 55/80 and 57/80 Musik-Vertrieb membran and K-tel International, cited in footnote 67, paragraph 24, with regard to the movement of goods.
      
      75 –	Case 62/79 Coditel and Others I [1980] ECR 881.
      
      76 –	Case 62/79 Coditel and Others I, cited in footnote 75, paragraph 14.
      
      77 –	Case 62/79 Coditel and Others I, cited in footnote 75, paragraph 16, and similarly, with regard to the rental right, the Opinion of Advocate General La Pergola
         in Case C‑61/97 FDV [1998] ECR I‑5171, point 15.
      
      78 –	Case 62/79 Coditel and Others I, cited in footnote 75, paragraph 16.
      
      79 –	With regard to the assessment of the present proceedings on the basis of that provision, see point 107 et seq. above.
      
      80 –	The reference for a preliminary ruling in Case 62/79 Coditel and Others I was directed at the enforcement of this right laid down in Article 11bis(1)(ii) of the Berne Convention; see the Report for the Hearing in that case, cited in footnote 75, p. 884.
      
      81 –	See, for example, Case C‑76/90 Säger [1991] ECR I‑4221, paragraph 15; Case C‑46/08 Carmen Media Group [2010] ECR I‑0000, paragraph 60; and Case C‑515/08 Santos Palhota and Others [2010] ECR I‑0000, paragraph 45.
      
      82 –	Case C‑76/90 Säger, cited in footnote 81, paragraph 17; Case C‑318/05 Commission v Germany [2007] ECR I‑6957, paragraphs 133 and 136; and Case C‑250/06 United Pan-Europe Communications Belgium and Others [2007] ECR I‑11135, paragraph 44.
      
      83 –	See recital 10 in the preamble to Commission Decision of 19 April 2001 relating to a proceeding pursuant to Article 81
         of the EC Treaty and Article 53 of the EEA Agreement (Case 37.576 — UEFA’s broadcasting regulations) (OJ 2001 L 171, p. 12).
      
      84 –	See also the declarations on the Treaty of Amsterdam and of the Council cited in footnote 12.
      
      85 –	This is shown by the complaint lodged by various broadcasting organisations which led to the Commission decision cited
         in footnote 83.
      
      86 –	See the decision cited in footnote 83, recital 55 and Annex II.
      
      87 –	For attendance figures, see DFL Deutsche Fußball Liga GmbH, Bundesliga 2010, Die wirtschaftliche Situation im Lizenzfußball, p. 20 et seq.
      
      88 –	See paragraph 66 of the order for reference.
      
      89 –	See above, point 107 et seq.
      
      90 –	See above, point 121 et seq.
      
      91 –	See the references in footnote 82.
      
      92 –	See Case 302/86 Commission v Denmark [1988] ECR 4607, paragraph 21.
      
      93 –	See the levy examined in Case C‑467/08 Padawan, cited in footnote 16.
      
      94 –	Case C‑92/01 Stylianakis [2003] ECR I‑1291, paragraph 18; Case C‑76/05 Schwarz and Gootjes-Schwarz [2007] ECR I‑6849, paragraph 34; and Case C‑56/09 Zanotti [2010] ECR I‑0000, paragraph 24.
      
      95 –	See Joined Cases C‑92/92 and C‑326/92 Phil Collins and Others [1993] ECR I‑5145, paragraph 34 et seq.
      
      96 –	Annex 23 to the FAPL’s pleadings, see the Notice in OJ 2004 C 115, p. 3, and Press Release IP/06/356 of 22 March 2006.
      
      97 –	See Case C‑97/09 Schmelz [2010] ECR I‑0000, paragraph 50; see also Article 13(2) EU and the second sentence of Article 17(1) EU.
      
      98 –	Case C‑8/08 T-Mobile Netherlands and Others [2009] ECR I‑4529, paragraph 43.
      
      99 –	T-Mobile Netherlands and Others, cited in footnote 98, paragraph 30; Case C‑534/07 P Prym and Prym Consumer v Commission [2009] ECR I‑7415, paragraph 81; and Joined Cases C‑501/06 P, C‑513/06 P, C‑515/06 P and C‑519/06 P GlaxoSmithKline Services v Commission [2009] ECR I‑9291, paragraph 55.
      
      100 –	GlaxoSmithKline Services v Commission, cited in footnote 99, paragraph 58.
      
      101 –	Joined Cases C‑468/06 to C‑478/06 Sot. Lélos kai Sia and Others [2008] ECR I‑7139, paragraph 65 and the case-law cited, and GlaxoSmithKline Services v Commission, cited in footnote 99, paragraph 59 et seq.
      
      102 –	Case 258/78 Nungesser and Eisele v Commission [1982] ECR 2015, paragraph 61.
      
      103 –	See above, point 177 et seq.
      
      104 –	See, to that effect, my Opinion in Case C‑169/08 Presidente del Consiglio dei Ministri [2009] ECR I‑10821, point 134 et seq.
      
      105 –	GlaxoSmithKline Services v Commission, cited in footnote 99, paragraph 82.