Brussels, 03/02/2011 (Agence Europe) - Territorial exclusivity agreements relating to the transmission of football matches are contrary to European Union law in that they partition the single market and, therefore, impinge on the freedom to provide services. The use of foreign decoder cards to broadcast matches in pubs is not prohibited by European law, so long as the corresponding charges have been paid and have not therefore been circumvented.
That in a nutshell is the opinion reached by Advocate General Juliane Kokott on 3 February in Joined Cases C-403/08 and C-429/08 in response to questions put by the High Court of England and Wales, which asked the Court of Justice about obligations which licensors can impose on broadcasters of sports events, specifically, if they can ban the sale of satellite decoders legally marketed in other member states so that live football matches cannot be received outside the area covered by the licence. The Football Association Premier League (FAPL) of England, which grants its licensees the exclusive right to broadcast matches on a territorial basis, is trying to prevent companies which import decoder cards from abroad, in this instance Greece, getting round this exclusivity and allow Premier League matches to be broadcast live at more favourable prices in pubs in the UK.
According to the advocate general: - this exclusivity, contrary to freedom to provide services, engenders a partitioning of the single market into national markets which cannot be justified by the need to protect industrial and commercial property rights on the broadcasting of sports events: indeed exploitation of these rights is remunerated (the cards have been bought legally in Greece) and EU law does not grant any specific right to charge different prices in different member states for a service; - on this latter point, the directive on the legal protection of services based on, or consisting of, conditional access does not prohibit the use of foreign decoder cards; - the contractual restriction on using decoder cards only for domestic or private, but not commercial, use, for which a higher subscription charge is payable, cannot justify territorial partitioning; - as far as concerns the question of whether the showing of live transmissions of football matches in pubs infringes the exclusive right of communication to the public of protected works, 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; - finally, the freedom to provide services does not run counter to the directive on the coordination of certain rules concerning copyright and rights related to copyright applicable to satellite broadcasting and cable retransmission or the directive on European competition law. (F.G./transl.rt)