More on AG Wahl and restrictions by object: issues raised by the Commission pay-TV investigation
I gather from the comments to my last post that there is still at least one reader interested in discussing the issues raised by AG Wahl in Groupement de Cartes Bancaires. I could not think of a better excuse to write yet another post about some ongoing developments where the object/effect divide in Article 101(1) TFEU is relevant. This time, which will most probably leave all readers exhausted (more on exhaustion below), I will address some of the open questions raised by the investigation into pay-TV services launched by the Commission back in January.
AG Wahl emphasised in his opinion the importance of considering the context in which an agreement is concluded when determining whether it is restrictive of competition by object within the meaning of Article 101(1) TFEU. It follows from this principle that an agreement that would in principle violate the said provision by its very nature may not do so – and may even fall outside its scope altogether – in some circumstances.
The licensing of TV rights to broadcasters is a perfect example of an instance in which the context surrounding the agreement makes a real difference. It is well-established since Consten-Grundig that agreements giving ‘absolute territorial protection’ to a distributor are restrictive of competition by object. In Coditel II, however, the ECJ held that an exclusive territorial licence in favour of a broadcaster is not in itself contrary to Article 101(1) TFEU, even though it may amount to absolute territorial protection. Why? As the ECJ lucidly explained, what is true for physical goods is not necessarily true for intangible property. In this case, territorial exclusivity came within the scope of the intellectual property right (communication to the public) that was being licensed. The ‘exclusive right to authorise or prohibit any communication to the public’ (to use the wording of Directive 2001/29) can only be meaningfully exercised if the licensee is entitled to prevent others from broadcasting the work in the area subject to the agreement. In other words, and by reference to the expression used by the ECJ in Coditel II, this is an instance in which territorial exclusivity allows the copyright to perform its ‘essential function’ (that in fact is the very ‘object’ of the agreement). If the existence of the intellectual property right is not disputed, then it would be simply illogical to find that the licence is contrary to Article 101 TFEU by its very nature.
Coditel II, which makes perfect legal and economic sense (and which is yet another excellent example showing that the notion of restriction by object has never been interpreted or applied in a categorical or mechanical way by the ECJ), is now seemingly questioned by the Commission in the pay-TV investigation. Commissioner Almunia’s statement raises concerns about ‘provisions [that] ensure that the films licensed by the US studios are shown exclusively in the Member State where each broadcaster operates via satellite and the internet’. This sentence suggests that, in the Commission’s view, agreements that come within the scope of the right of communication to the public are contrary to Article 101(1) TFEU. This position seems to involve a departure from Coditel II and would as such amount to an expansion of the reach and scope of EU competition law, which has long remained deferential to intellectual property regimes and their internal trade-offs. It would also be based on an expansive reading of the notion of restriction by object.
Because the statement is very ambiguous, however, this is not entirely clear. The Commission, on the one hand, claims that some of these agreements give ‘absolute territorial protection’ to pay-TV operators (which would in turn mean that they are restrictive by object). The Commission, on the other hand, says that it is not ‘calling into question the possibility to grant licenses on a territorial basis, or trying to oblige studios to sell rights on a pan-European basis’. I guess we will have to wait and see how the case unfolds in the coming months. Ideally, the Commission would explain whether it takes the view that an exclusive licensing agreement that allows the copyright to perform its ‘essential function’ is restrictive by object simply because it prevents licensees in other territories from offering the same content.
It should be noted that in Premier League (the case without which this investigation cannot be understood) the ECJ was very careful not to question Coditel II. It made it clear beyond doubt that the ruling only concerned the circulation of physical goods (the decoding devices), as opposed to intangible property. It also pointed out that the general principle whereby an agreement granting absolute territorial protection is restrictive by object does not apply where ‘other circumstances falling within its economic and legal context justify the finding that such an agreement is not liable to impair competition’ (and went on to note that the FA Premier League had not put forward any arguments in this sense). This fundamental qualification is not mentioned in Commissioner Almunia’s statement. The fact that the boundaries of the ruling were so carefully defined by the ECJ suggests, in my view (and this irrespective of what we think of the outcome), that it sought to limit as much as possible its implications for exclusive territorial licensing (there is in fact a very marked difference between AG Kokott’s opinion and the judgment, which would go to confirm this reading).