Commission Decision of 16 October 2007 on the compatibility with Community law of measures taken by the United Kingdom pursuant to Article 3a(1) of Council Directive 89/552/EEC on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities (Text with EEA relevance) (2007/730/EC)

Commission Decision

of 16 October 2007

on the compatibility with Community law of measures taken by the United Kingdom pursuant to Article 3a(1) of Council Directive 89/552/EEC on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities

(Text with EEA relevance)

(2007/730/EC)

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:

(1)

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).

(2)

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.

(3)

OJ C 328, 18.11.2000, p. 2.