Brussels, 23/01/2013 (Agence Europe) - The financial compensation that holders of exclusive broadcasting rights may seek from other channels for short news reports may be limited to technical costs, and the EU Charter of Fundamental Rights does not disallow this limitation laid down in EU Audiovisual Media Services Directive 2010/13/EU. This in essence was the ruling of the European Court of Justice on 22 January 2013 in Case C-283/11 in response to a request from the Bundeskommunikationssenat (the Austrian Federal Communications Senate), which has before it a case between Sky Österreich, which holds exclusive rights in Austria to broadcast Europa League matches in the 2009/2010 to 2011/2012 seasons. Under the above directive, the Austrian communications regulatory body required Sky to grant it the right to make brief news reports without payment for licencing and production costs (there was no fee for supply of the satellite signal for the case in point). The Austrian court asked the European Court of Justice whether Directive 2010/13/EU's restriction on the payment costs caused by the supply of access to broadcasting signals was compatible with the European Union's Charter of Fundamental Rights,, which guarantees freedom of ownership and entrepreneurial freedom.
The Court of Justice says that the EU Charter does not disallow this limitation. Vis-a-vis property rights, the Court of Justice recognises that exclusive broadcasting rights, as acquired by Sky, have asset value and do not constitute mere commercial interests or opportunities. However, when Sky acquired those rights by means of a contract (in August 2009), EU law already provided in Directive 2007/65/EC for the right to make short news reports, while limiting the amount of compensation to the additional costs directly incurred in providing access to the signal. Therefore, Sky cannot rely on an established legal position enabling it to exercise its exclusive broadcasting rights autonomously. Consequently, Sky cannot rely on the protection of property, laid down in the Charter of Fundamental Rights. The Court of Justice says the challenged directive interferes with the right to do business because it prevents the holder of exclusive broadcasting rights from deciding freely on the price to be charged for access to the signal and from making broadcasters which produce short news reports contribute to the costs involved in acquiring those rights. However, the Court points out that the freedom to conduct a business, as a fundamental freedom, may be subject to a broad range of interventions on the part of public authorities which may limit the exercise of economic activity in the public interest. The restriction on the right to conduct a business laid down by the directive is in the public interest because it promotes pluralism and protects the public's fundamental freedom to receive news. This restriction is proportionate because the directive strictly regulates the conditions under which third parties can gain access to the signal without paying for it (snippets of no more than 90 seconds in length used solely for general news programmes with a mention of the origin) while allowing the rights holder to continue to charge for use of exclusive rights. It therefore strikes a fair balance between the various rights and fundamental freedoms guaranteed by the Charter of Fundamental Rights. (FG/transl.fl)