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THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Directive 89/552/EEC of 3 October 1989 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities(1), and in particular Article 3a(2) thereof,
Having regard to the opinion of the Committee established pursuant to Article 23a of Directive 89/552/EEC,
Whereas:
(1) By letter of 25 September 1998, the United Kingdom (hereinafter ‘the UK’) notified to the Commission measures taken pursuant to Article 3a(1) of Directive 89/552/EEC. On 2 November 1998, the Commission communicated those measures to the other Member States and received observations of the Committee established pursuant to Article 23a of Directive 89/552/EEC, at its meeting on 20 November 1998. By letter of 23 December 1998, the Commission informed the UK that there were doubts as to the scope of the measures notified which prevented it from assessing whether those measures were compatible with Community law. The UK notified an amended version of these measures to the Commission by letter of 5 May 2000.
(2) The Commission verified, within three months from this notification, that these measures are compatible with Community law, in particular as regards the proportionality of the measures and the transparency of the national consultation procedure.
(3) In its examination, the Commission took into consideration the available data on the UK media landscape.
(4) The list of events of major importance for society included in the UK measures was drawn up in a clear and transparent manner and a far-reaching consultation had been launched in the UK.
(5) The Commission was satisfied that the events listed in the UK measures met at least two of the following criteria considered to be reliable indicators of the importance of events for society: (i) a special general resonance within the Member State, and not simply a significance to those who ordinarily follow the sport or activity concerned; (ii) a generally recognised, distinct cultural importance for the population in the Member State, in particular as a catalyst of cultural identity; (iii) involvement of the national team in the event concerned in the context of a competition or tournament of international importance; and (iv) the fact that the event has traditionally been broadcast on free television and has commanded large television audiences.
(6) A significant number of the events listed in the UK measures, including the summer and winter Olympic Games as well as the World Cup Finals and the European Championship Finals tournaments, fall within the category of events traditionally considered to be of major importance for society, as referred to explicitly in recital 18 of Directive 97/36/EC. These events have a special general resonance in the UK in their entirety, as they are particularly popular with the general public (irrespective of the nationality of the participants), not just with those who usually follow sports events.
(7) The FA Cup Final has a special general resonance in the UK as the pre-eminent single match in English domestic football and a true national occasion, as well as an event of worldwide renown.
(8) The Scottish FA Cup Final has a special general resonance in Scotland, as an event of similar stature to the (English) FA Cup Final.
(9) The Grand National has a general resonance in the UK as a long-established event of worldwide renown and appeal, as well as a generally recognised, distinct cultural importance for the population in that country, forming part of the UK national consciousness.
(10) The Derby has a general resonance in the UK as the pre-eminent event in the flat racing season and a part of the national calendar, as well as a generally recognised, distinct cultural importance for the population in that country, as a quintessentially British occasion transcending social class and commanding interest throughout the country.
(11) The Wimbledon Tennis Finals have a general resonance in the UK as the pre-eminent UK tennis tournament of worldwide renown, commanding extensive media coverage. Moreover, the general resonance and distinct cultural importance of this event in the UK is due to the success of the UK participants in this competition.
(12) The Rugby League Challenge Cup Final and the Rugby World Cup tournament have a general resonance in the UK as events of wide general interest appealing to people who do not usually follow these competitions. The Six Nations Rugby Tournament matches involving home countries(2) have a special general resonance in the UK as an important event in the UK sporting calendar.
(13) The cricket Test Matches played in England have a general resonance in the UK as the flagship events in the national summer sport, involving the England team and top overseas sides, with an appeal transcending social class and region. The Cricket World Cup matches (the final, semi-finals and matches involving home nations’ teams) have a general resonance in the UK as they form part of the only self-contained world championship in this sport, involving the UK teams in competition at the highest level. Moreover, these cricket events have a generally recognised, distinct cultural importance for the population in the UK due to its multi-cultural appeal, which helps social cohesion and reinforces the UK’s Commonwealth links.
(14) The Commonwealth Games have a special general resonance in the UK as an established event involving UK competitors in high-level competition.
(15) The World Athletics Championship has a special general resonance in the UK as the pre-eminent event devoted solely to athletics and involving UK participants at the highest level.
(16) The Ryder Cup has a special general resonance in the UK as a major and unique international event involving UK players in top-level competition.
(17) The (British) Open Golf Tournament has a special general resonance in the UK as the pre-eminent event in British golf, and one of the pre-eminent and the oldest events in world golf.
(18) The listed events, including those to be considered as a whole and not as a series of individual events, have traditionally been broadcast on free television and have commanded large television audiences. Where, exceptionally, this has not been the case (the listed matches of the Cricket World Cup), the listing is limited (as it includes the final, semi-finals and matches involving national teams) and requires only adequate secondary coverage, and, in any case, fulfils two of the criteria considered to be reliable indicators of the importance of events for society (recital 13).
(19) The UK measures appear proportionate so as to justify a derogation from the fundamental EC Treaty freedom to provide services on the basis of an overriding reason of public interest, which is to ensure wide public access to broadcasts of events of major importance for society.
(20) The UK measures are compatible with EC competition rules in that the definition of qualified broadcasters for the broadcasting of listed events is based on objective criteria that allow actual and potential competition for the acquisition of the rights to broadcast these events. In addition, the number of listed events is not disproportionate so as to distort competition on the downstream free television and pay television markets.
(21) The proportionality of the UK measures is reinforced by the fact that a number of the events listed require adequate secondary coverage only.
(22) After communication by the Commission to the other Member States of the UK measures and consultation of the Committee established pursuant to Article 23a of Directive 89/552/EEC, the Director-General for Education and Culture informed the UK, by letter of 28 July 2000, that the European Commission did not intend to object to the measures notified.
(23) Those measures were published in the C Series of the Official Journal of the European Communities (3) in accordance with Article 3a(2) of Directive 89/552/EEC.
(24) It follows from the judgment of the Court of First Instance in Case T-33/01, Infront WM v Commission, that the declaration that measures taken pursuant to Article 3a(1) of Directive 89/552/EEC are compatible with Community law constitutes a decision, which must therefore be adopted by the Commission. Accordingly, it is necessary to declare by this Decision that the measures notified by the UK are compatible with Community law. The measures, as set out in the Annex to this Decision, should be published in the Official Journal of the European Union in accordance with Article 3a(2) of Directive 89/552/EEC.
(25) In order to guarantee legal certainty, this Decision should apply as from the date of the first publication in the Official Journal of the European Union of the measures notified by the UK,
HAS DECIDED AS FOLLOWS:
The measures taken pursuant to Article 3a(1) of Directive 89/552/EEC and notified by the United Kingdom to the Commission on 5 May 2000, as published in the Official Journal of the European Communities C 328 of 18 November 2000, are compatible with Community law.
The measures, as set out in the Annex to this Decision, shall be published in the Official Journal of the European Union in accordance with Article 3a(2) of Directive 89/552/EEC.
This Decision shall apply as from 18 November 2000.
Done at Brussels, 16 October 2007.
For the Commission
Viviane Reding
Member of the Commission
The measures taken by the UK to be published pursuant to Article 3a(2) of Directive 89/552/EEC are set out in the following extracts:
[Extracts from Part IV of the Broadcasting Act 1996]U.K.
the BBC;
the Welsh Authority;
the Commission; and
in relation to a relevant event, the person from whom the rights to televise that event may be acquired;
and for the purposes of this subsection a relevant event is a sporting or other event of national interest which the Secretary of State proposes to include in, or omit from, the list.
the persons mentioned in subsection 2; and
every person who is the holder of a licence granted by the Commission under Part I of the 1990 Act or a digital programme licence granted by them under Part I of this Act.
the validity of any contract entered into before the date on which the Secretary of State consulted the persons mentioned in subsection 2 in relation to the proposed addition; or
the exercise of any rights acquired under such a contract.
such of the services specified in subsection 2 as are provided without any charge being made for the reception of programmes included in the service;
all televison programme services not for the time being falling within paragraph (a).
regional and national Channel 3 services;
Channel 4; and
the television broadcasting services provided by the BBC.
[…]
another person, who is providing a service falling within the other category set out in that subsection (the second service), has acquired the right to include in the second service live coverage of the whole of the event or of that part of the event; and
the area for which the second service is provided consists of or includes the whole, or substantially the whole, of the area for which the first service is provided.
are satisfied that the holder of a licence under Part I of the 1990 Act or a digital programme licence under Part I of this Act has failed to comply with subsection 1 of section 101; and
are not satisfied that in all the circumstances it would be unreasonable to expect him to have complied with that subsection;
they may require him to pay, within a specified period, a specified financial penalty to the Commission.
provided them with information which was false in a material particular; or
withheld any material information with the intention of causing the Commission to be misled;
they may require him to pay, within a specified period, a specified financial penalty to the Commission.
‘the relevant consideration’ means an amount determined by the Commission as representing so much of any consideration paid by the person on whom the penalty is being imposed as is attributable to the acquisition of the rights to televise the event in question; and
‘the prescribed multiplier’ means such number as the Secretary of State may from time to time by order prescribe.
are satisfied that a broadcasting body has failed to comply with subsection 1 of section 101; and
are not satisfied that in all the circumstances it would be unreasonable to expect the body to have complied with that subsection,
they shall make a report on the matter to the Secretary of State.
provided them with information which was false in a material particular: or
withheld any material information with the intention of causing the Commission to be misled,
they shall make a report on the matter to the Secretary of State.
specifying the circumstances in which the televising of listed events generally, or of a particular listed event, is, or is not, to be treated as live for the purposes of this Part; and
giving guidance as to the matters which they will take into account in determining:
whether to give or revoke their consent under section 101(1), or
for the purposes of section 102(1) or 103(1), whether in all the circumstances it is unreasonable to expect a television programme provider to comply with section 101(1).
the BBC;
the Welsh Authority;
every person from whom the rights to televise a listed event may be acquired;
and
every person who is the holder of a licence granted by the Commission under Part I of the 1990 Act or a digital programme licence granted by them under Part I of this Act.
‘Channel 4’ has the same meaning as in Part I of the 1990 Act;
‘the Commission’ means the Independent Television Commission;
‘listed event’ has the meaning given by section 97(1);
‘live’ shall be construed in accordance with the code drawn up under section 104;
‘national Channel 3 service’ and ‘regional Channel 3 service’ have the same meaning as in Part I of the 1990 Act;
‘television broadcasting service’ has the same meaning as in Part I of the 1990 Act;
‘television programme provider’ has the meaning given by section 99(2);
‘television programme service’ has the same meaning as in Part I of the 1990 Act.
[Extracts from the Television Broadcasting Regulations 2000]U.K.
Made: 14 January 2000
Laid before Parliament: 14 January 2000
Coming into force: 19 January 2000
Whereas the Secretary of State is a Minister designated(4) for the purposes of section 2(2) of the European Communities Act 1972(5) with regard to measures relating to television broadcasting;
Now, therefore, the Secretary of State, in exercise of the powers conferred on him by section 2(2) of the European Communities Act 1972 and all other powers enabling him in that behalf, hereby makes the following Regulations:
[…]
[…]
14 January 2000
Chris Smith
Secretary of State for Culture, Media and Sport
those television programme services and EEA satellite services which for the time being satisfy the qualifying conditions, and
all other television programme services and EEA satellite services.
that the service is provided without any consideration being required for reception of the service, and
that the service is received by at least 95 % of the population of the United Kingdom.
is to be taken to be satisfied in relation to a regional Channel 3 service if it is satisfied in relation to Channel 3 as a whole, and
is to be taken to be satisfied in relation to Channel 4 if it is satisfied in relation to Channel 4 and S4C taken together.
consists in the transmission for general reception of television programmes by satellite, and
is provided by a person who for the purposes of Council Directive 89/552/EEC is under the jurisdiction of an EEA State other than the United Kingdom.
[…]
[…]
after the definition of ‘the Commission’ there is inserted: ‘designated event, in relation to an EEA State other than the United Kingdom, has the meaning given by section 101A;’;
in the definition of ‘live’, before ‘shall’ there is inserted ‘in relation to the televising of a listed event’; and
after the definition of ‘national Channel 3 service’ and ‘regional Channel 3 service’ there is inserted: ‘S4C has the same meaning as in Part I of the 1990 Act;’
[Extracts from the ITC Code on Sports and other Listed Events, revised January 2000]U.K.
(revised January 2000)
[…]
the restrictions on live coverage will apply while the event concerned is in progress,
if the event involves separate games or matches, the restrictions will apply while each game or match is in progress,
in the case of a single event which is scheduled to last over several days the restrictions will apply to each day’s play, while it is in progress,
in the case of an event which consists of defined separate parts which overlap in time (e.g. the Olympic Games or the FIFA World Cup Finals) and cannot therefore be televised simultaneously in full, the restrictions will apply to each match or competition as if it was a single event.
any invitation to express interest, whether in the form of public advertisement or closed tender, in the acquisition of the rights must have been communicated openly and simultaneously to broadcasters providing services in both categories,
at the beginning of any negotiation the documentation and/or marketing literature must set out in all material respects the process for negotiating and acquiring the rights and all material terms and conditions, including what rights were available,
if the rights to the listed event were included in a package of rights, the package must not have been more attractive to broadcasters providing services in one of the two categories. Preferably, the rights should be capable of being purchased independently of other rights, e.g. to highlights, delayed transmissions, other events,
the conditions or costs attached to the acquisition of the rights (for example, production costs) must have been clearly stated and must not be preferential to one category of service,
the price sought for the rights must have been fair, reasonable and non-discriminatory as between the two categories of programme service. What is a fair price will depend upon the rights being offered and the value of those rights to broadcasters. A wide range of prices is likely to be regarded as fair but when required to make its own judgment on the matter the ITC will have regard to, inter alia:
previous fees for the event or similar events,
time of day for live coverage of the event,
the revenue or audience potential associated with the live transmission of the event (e.g. the opportunity to sell advertising and sponsorship; the prospects for subscription income),
the period for which rights are offered, and
competition in the market place.
| For an event scheduled to finish | Maximum delay |
|---|---|
| After midnight and up to 8 am | Edited highlights or delayed coverage to start not later than 10.00 am. |
| Between 8.00 am and 8.30 pm | Up to 2 hours. |
| Between 8.30 pm and 10.00 pm | Edited highlights or delayed coverage to start not later than 10.30 pm. |
| Between 10.00 pm and midnight | Up to 30 minutes. |
[…]
January 2000
The Olympic Games
The FIFA World Cup Finals Tournament
The FA Cup Final
The Scottish FA Cup final (in Scotland)
The Grand National
The Derby
The Wimbledon Tennis finals
The European Football Championship finals Tournament
The Rugby League Challenge Cup final (*)
The Rugby World Cup final (*)
Cricket Test matches played in England
Non-finals play in the Wimbledon Tournament
All other matches in the Rugby World Cup Finals Tournament (*)
Five Nations Rugby Tournament matches involving home countries(7) (*)
The Commonwealth Games (*)
The World Athletics Championship (*)
The Cricket World Cup — the final, semi-finals and matches involving home nations’ teams (*)
The Ryder Cup (*)
The Open Golf Championship (*)
Restrictions apply to rights acquired after 1 October 1996 except for those events marked by an asterisk where the relevant date is 25 November 1997(8).
CHANNEL 3 (ITV)
CHANNEL 4
BBC 1
BBC 2
[Written answer from the Secretary of State to a Parliamentary Question of Hugh Bayley MP, 25 November 1997]U.K.
Mr Bayley: To ask the Secretary of State for Culture, Media and Sport what progress he has made in his review of the sports events listed under Part IV of the Broadcasting Act 1996; and if he will make a statement.
Mr Chris Smith: I have consulted interested parties about the principles which should guide the listing process, and I am today publishing criteria which I hope will make the process more transparent. I have also appointed an advisory group of individuals with knowledge of the sporting, broadcasting and public policy issues involved. The members of the group are:
Lord Gordon of Strathblane (chairman)
Mr Alastair Burt
Mr Jack Charlton
Mr Steve Cram
Kate Hoey, MP
Mr Michael Parkinson
Mr Clive Sherling
Prof. David Wallace
I have invited this group to consider the issues against these published criteria:
whether events or parts of events should be removed from the list; and
whether other major sporting events should be added to the list.
As an initial step in the process of reviewing the list, the rights holders for the events currently listed and a number of the other major sports events are being formally consulted, as the 1996 Act requires. The submissions received from them will be made available to the advisory group.
The rights holders for the following events are to be consulted:
Events currently listed:
The Olympic Games
The FIFA World Cup finals
The FA Cup final
The Scottish FA Cup final (listed only in Scotland)
Cricket Test Matches involving England
Wimbledon Tennis Tournament (finals weekend only currently listed)
The Grand National
The Derby
Other major sports events:
The Cricket World Cup
The Rugby World Cup
The European Football Championships
The Commonwealth Games
The World Athletics Championship
The British Grand Prix
The Five Nations Rugby Tournament
The Open (golf)
The Ryder Cup
The group may request that other events be included in the review and the rights holders for these events will be consulted.
The group will begin its work immediately and I expect it to make its recommendations to me before Easter. I shall then decide what changes, if any, to make to the current list.
[Extracts from a communication by the Ministry for Culture, Media and Sports, 25 November 1997]U.K.
[…]
In considering whether to list an event, the Secretary of State is required to consult the broadcasting regulators and the holders of the rights in question. The following note sets out the factors which the Secretary of State will take into account in deciding whether to list an event.
In order to be eligible to be listed, an event must meet the following main criterion:
the event has a special national resonance, not simply a significance to those who ordinarily follow the sport concerned; it is an event which serves to unite the nation; a shared point in the national calendar.
Such an event is likely to fall into one or both of the following categories:
it is a pre-eminent national or international event in the sport,
it involves the national team or national representatives in the sport concerned.
An event which satisfies the essential criterion is likely to be considered for listing, but listing of such an event is not automatic. It is more likely to be listed if it exhibits particular characteristics making listing an apt response, such as:
it is likely to command a large television audience,
it has a history of being broadcast live on free-to-air services.
In considering whether to list such an event, the Secretary of State will have regard to other factors affecting the likely costs and benefits to the sport concerned, to the broadcasting industry and to viewers, such as:
whether it is practical to offer full live coverage on a general channel — extended events such as season-long championships involving many matches will not normally be listed in their entirety,
the impact of listing in reducing the income or potential income of the sport, and the consequences of that reduction for its investment in increasing participation and/or improving levels of performance and/or in creating safe facilities,
the likely impact of listing on the broadcasting market, including future investment in sports broadcasting, the level of competition and the position of public service broadcasters,
whether there are arrangements to ensure that access to the event is available to all viewers by means of highlights, delayed coverage and/or radio commentary.
In considering events for listing, the Secretary of State will have regard to these other factors cumulatively. No single factor automatically commands listing as a response, nor does failure to meet an individual criterion disqualify an event from consideration.
[Written answer from the Secretary of State to a Parliamentary Question of Gareth R. Thomas MP, 25 June 1998]U.K.
Mr Gareth R. Thomas: To ask the Secretary of State for Culture, Media and Sport if he will make a statement about the outcome of his review of major events listed under Part IV of the Broadcasting Act 1996.
Mr Chris Smith: My review of the list is now complete. I have conducted it in the light of the criteria which I published last year. I consulted widely on the criteria and the content of the list and I have carefully considered the many representations made to me. I have accepted the general principles of the report produced by the Advisory Group chaired by Lord Gordon of Strathblane.
With immediate effect, I am revising the list of events under Part IV of the Broadcasting Act 1996.
I am retaining the following events on the list, requiring live coverage to be made available to free-to-air terrestrial television broadcasters (in Category A as specified in the 1996 Act):
The Olympic Games
The FIFA World Cup Finals Tournament
The FA Cup final
The Scottish FA Cup final (in Scotland)
The Grand National
The Derby
The Wimbledon Tennis finals.
I am adding the following events to the list on the same basis:
The European Football Championship Finals Tournament
The Rugby League Challenge Cup final
The Rugby World Cup final.
After careful consideration of the Advisory Group’s recommendations, I have concluded that a number of the matches in the World Cup and European Championships football qualifying tournaments meet the criteria for listing. I believe that it is important that crucial ties in these competitions should be available to all viewers and therefore intend to seek Europe-wide arrangements for protecting free-to-air live broadcasts of crucial matches in these competitions.
I am also listing some further events on a different understanding. For these events, I have recommended to the Independent Television Commission that live coverage might be allowed to be shown exclusively by a Category B broadcaster (as specified in the 1996 Act), provided there are satisfactory arrangements for secondary coverage by a Category A broadcaster. I have asked the ITC to consider setting a minimum acceptable standard for such secondary coverage, to include some combination of delayed full coverage, highlights and live radio commentary.
The events I am listing on this understanding are:
Cricket Test Matches played in England
Non-finals play in the Wimbledon Tournament
All other matches in the Rugby World Cup Finals Tournament
Five Nations Rugby Tournament matches involving home countries
The Commonwealth Games
The World Athletics Championship
The Cricket World Cup — the final, semi-finals and matches involving home nations teams
The Ryder Cup
The Open Golf Championship.
OJ L 298, 17.10.1989, p. 23. Directive as amended by Directive 97/36/EC of the European Parliament and of the Council (OJ L 202, 30.7.1997, p. 60).
The UK list was amended in 2001 following the change of name of this event from Five Nations Rugby Tournament to Six Nations Rugby Tournament.
S.I. 1997/1174.
1972 c. 68; by virtue of the amendment of section 1(2) of the European Communities Act by section 1 of the European Economic Area Act 1993 (c. 51) regulations may be made under section 2(2) of the European Communities Act to implement obligations of the United Kingdom created by or arising under the Agreement on the European Economic Area signed at Oporto on 2 May 1992 (Cm 2073) and the Protocol adjusting that Agreement signed at Brussels on 17 March 1993 (Cm 2183).
1996 c. 55.
The present annex reproduces the extracts from the ITC Code as notified by the UK to the Commission on 5 May 2000. However, the UK list was amended in 2001 following the change of name of this event to the Six Nations Rugby Tournament.
Following the change of name to Six Nations Rugby Tournament, the relevant date for this event is 24 January 2001.