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Sports Desk
- Greek satellite broadcaster - "rights in the transmission of football matches does not justify a partitioning of the internal market, and thus also does not justify the resulting restriction of the freedom to provide services." Pub owners and subscribers to Nova Greece in the United Kingdom have cause to celebrate a partial victory in the ongoing dispute with Sky, the Football Association, and Premier League over the rights to transmit British football matches across the European Union.
Greek satellite broadcaster Nova has passed its first hurdle in a ruling in the European Court of Justice with the Advocate General Kokot ruling that "broadcasters cannot prevent consumers from using cheaper foreign satellite TV equipment to watch Premier League football matches as such a block breaches EU laws".
The non-binding opinion by Advocate General Juliane Kokott at the European Court of Justice (ECJ) centres on a dispute whether a rights holder such as the Premier League can license its content on a country-by-country basis, allowing it to fully maximise the value of its rights, as it currently does.
Normally other judges who are expected to rule in a few months, support the view of the Adovcate Generla in the majority of cases in the ECJ.
"(The) exclusivity rights in question have the effect of partitioning the internal market into quite separate national markets, something which constitutes a serious impairment of the freedom to provide services."
THE FULL JUDGEMENT:
With regard to possible justification for the restriction of the freedom to provide services, the Advocate General examines the protection of industrial and commercial property and, in particular, addresses the question whether live satellite transmissions of football matches involve rights the specific subject-matter of which requires a partitioning of the internal market. In this connection she first states that the specific subject-matter of the rights in live football transmissions lies in their commercial exploitation. In the present cases, the live transmission of Premier League football matches is exploited, in particular, through the charge imposed for the decoder cards. Advocate General Kokott takes the view in this connection that the economic exploitation of the rights in question is not undermined by the use of foreign decoder cards, as the corresponding charges have been paid for those cards. Whilst those charges are not as high as the charges imposed in the United Kingdom, there is, according to the Advocate General, 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. The marketing of broadcasting rights on the basis of territorial exclusivity is tantamount to profiting from the elimination of the internal market. Consequently, the specific subject-matter of the rights in the transmission of football matches does not justify a partitioning of the internal market, and thus also does not justify the resulting restriction of the freedom to provide services.
Advocate General Kokott further takes the view that the 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 – also cannot justify a territorial restriction of the freedom to provide services. The Member State concerned may, however, in principle make provision for rights which allow authors to object to the communication of their works in pubs.
So far as concerns the question 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 the Copyright in the Information Society Directive1, the Advocate General explains that, as EU law stands at present, there are no comprehensive rights which protect the communication of a broadcast to the public where no entrance fee is charged.
Advocate General Kokott further expresses the view that the application of the principle of the freedom to provide services is also in line with the Satellite and Cable Directive2 and with European competition law. Equally, neither does the Conditional Access Directive3 constitute a barrier to the use of foreign decoder cards.
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