TV and events of ‘major importance for society’
(Once again we have the pleasure of publishing a contribution by Pablo Ibañez Colomo. It seems that the future of broadcasting rights is being decided in Luxembourg, and as he did last week when Kokott´s opinion was issued, Pablo is sharing with us his views on the latest Judgment in this area).
More on TV rights this week. In Cases T-385/07, T-55/08 and T-68/08, the General Court dismissed an annulment action against a Commission Decision declaring the compatibility with EU law of national measures concerning the broadcasting of events of ‘major importance for society’ (read: the FIFA World Cup, the Euro, the Olympics and similar sports events). In accordance with Article 3 of the Audiovisual Media Service Directive, Member States may require that these events are offered on subscription-free TV channels.
Given the way in which the said provision is worded, the outcome of the action is as unsurprising as it is uncontroversial. Some bits of the judgment raise some interesting issues:
Freedom of information: I have always been surprised by the lightness with which freedom of expression issues are addressed in TV rights-related cases. The General Court (as does the Preamble to the Directive) argues that these measures are justified by Article 10 ECHR, which includes the ‘freedom to receive information’. It is far from clear that the freedom of speech encompasses a right to access an event offered by a private actor on a subscription-free basis . Does this mean that publishers breach the freedom of information of their readers when they charge for their newspapers informing about events of ‘major importance for society’?
Have your cake and eat it?: When reading about Article 3 of the Audiovisual Media Services Directive, I cannot help thinking about the hybrid situation they create. Sport has become a multi-million business benefitting its governing bodies. If governments do not object to these developments (and I am not suggesting that they should), I do not see why they interfere downstream in the value chain to create market distortions at the level of broadcasters (which very often means, moreover, that public broadcasters end up paying for the rights).
Chillin'Competition 
the outcome of the action is as unsurprising as it is uncontroversial? “Togo-Bolivia como acontecimiento de gran importancia para la sociedad belga”?
http://derechomercantilespana.blogspot.com/2011/02/otra-floja-sentencia-desde-luxemburgo.html
JESUS ALFARO
18 February 2011 at 8:53 pm
Pablo, i am a total ignorant of the topic and its particularities as much as i do not intend to bring owls to Athens but for the sake of the argument i wonder whether the fact that since all these events you are mentioning in your post seem to involve national teams, and in turn national teams are (to the best of my knowledge) funded totally by the national budget, i.e. by the tax payers, of each country, would that make any difference?
George Pedakakis
18 February 2011 at 9:22 pm
Hola @Jesus! The fact that the outcome of the case is indeed somewhat ridiculous does not mean, in my opinion, that it is controversial. I understand Article 3 of the AVMS Directive to be conceived to allow Member States to do precisely what the Belgian government did. Should I add that it always seemed to me like a strange way of harmonising national legislations (on the assumption that it harmonises anything at all in the first place!)
Hi @George! Let me mention first the limits between the public and the private in sports governance are much more blurred than that (and this makes it an interesting field of research). May I add that I do not entirely understand your argument, which is tantamount to saying that when a company is owned by the State pouring public resources into it is not an issue.
Bagnole
20 February 2011 at 2:19 pm
Hi Pablo,
I’m sure George can clarify for himself, but I saw his argument as being addressed to your comments about governments interfering in the value chain of a private business, rather than to funding by public broadcasters. Does interference become more legitimate if we take into account the fact that government funding for national teams is effectively a subsidy to governing bodies?
To the extent that this interference involves throwing more public money at the problem, I take your point – it’s now subsidising them twice!
(Apologies to George if I’ve misunderstood.)
Pete
20 February 2011 at 3:43 pm
Hey Pablo,
Apologies for the inconvenience that my original post may have caused and many thanks to Pete for doing an excellent job clarifying my query.
Allow me add a couple of thoughts. From the case law commented upon above it seems that events involving national teams should (almost) always qualify as of ‘major importance for society’. This was not crystal clear to me and thus I couldn’t stop wondering what special characteristics of these teams turn first (i) States to adopt such rules, and then (ii) the Courts to justify those national rules based explicitly on the reasoning you mention above.
Of course, i understand that this is a complex issue which is closely related to the expected role of the State in a society (public policy choice), as much that my attempt to view it only from the angle of the characteristics of the national teams is a rather poor one. But if you take these caveats as given, one feature of these teams seems to be that the State is (almost totally) subsidizing their governing bodies. In this context and as Pete puts it, do you think that interference become more legitimate if we take into account this particular characteristic? Or, is this point totally irrelevant?
Again, this was just a question to spur a discussion and not an attempt to make an (uninformed) point on my part.
George Pedakakis
20 February 2011 at 9:23 pm