Commission Decision of 25 June 2007 on the compatibility with Community law of measures taken by Belgium 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 (2007/479/EC)

Commission Decision

of 25 June 2007

on the compatibility with Community law of measures taken by Belgium 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

(2007/479/EC)

THE COMMISSION OF THE EUROPEAN COMMUNITIES,

Having regard to the Treaty establishing the European Community,

Having regard to 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(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 10 December 2003, Belgium notified to the Commission measures to be taken pursuant to Article 3a(1) of Directive 89/552/EEC.

(2) The Commission verified, within three months from this notification, that such 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 Belgian media landscape.

(4) The list of events of major importance for society included in the Belgian measures was drawn up in a clear and transparent manner and a far-reaching consultation process had been launched in Belgium.

(5) The Commission was satisfied that the events listed in the Belgian 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 number of the events listed in the Belgian measures, including the summer and winter Olympic Games as well as the World Cup Finals and the European Football Championship Finals tournaments (men), 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 Belgium, as they are particularly popular with the general public, not just with those who usually follow sport events.

(7) Given that the Belgian Football Cup Final (men) is intended to bring together the two best Belgian clubs and ends in the award of a trophy (the Cup), it is popular far beyond the ranks of those normally following sport events, and has thus special general resonance in Belgium.

(8) The listed football events involving national teams have a special general resonance in Belgium as they give Belgian teams the opportunity to promote Belgian football at international level.

(9) The finals and semi-finals of the Champions League and the UEFA Cup have a special general resonance in Belgium given the popularity of football in Belgium and the prestige of those matches, which are followed by the general public, and not only by those who usually follow sport events.

(10) Road cycling is a popular sport in Belgium. Part of the Tour de France (men), the most important cycling event in the world, takes place in Belgium. The Belgian Road Cycling Championship (men) has a special general resonance in Belgium as it closes the professional cycling season, followed by the general public and the Belgian media. The other listed cycling events have a special general resonance in Belgium given the usual success of Belgian participants at international level. The listed international cycling events taking place in Belgium also provide an opportunity to promote Belgium as a country.

(11) The Ivo Van Damme Memorial, part of the Golden League, has a special general resonance in Belgium given that it is an international highlevel athletics event held in Belgium to commemorate a great Belgian athlete and combining sport and music, so it is very popular with the general public.

(12) The listed parts of the World Athletics Championships involving Belgian players have a special general resonance in Belgium as they represent an opportunity for Belgian athletes to compete at international level.

(13) The Belgian Formula 1 Grand Prix has a special general resonance as it promotes an especially beautiful Belgian circuit, which is an object of particular national pride.

(14) The listed tennis matches involving national players or teams have a special general resonance in Belgium in view of the success of Belgian tennis players at international level.

(15) The final of the Queen Elisabeth Music Competition has a distinct cultural importance as a catalyst of Belgian cultural identity, due to the important contribution of Queen Elisabeth and her husband King Albert to Belgian history and to the extremely high quality and the worldwide significance of that cultural event.

(16) 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, no specific viewing data is available (European Football Championship Finals tournament), the inclusion of the event is further justified by its generally recognised, distinct cultural importance for the Belgian population, given its important contribution to understanding between peoples, as well as the importance of football for the Belgian society as a whole and for the national pride, as it provides the occasion for top Belgian sportsmen to succeed in this important international competition.

(17) The Belgian 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.

(18) The Belgian 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.

(19) After communication by the Commission to the other Member States of the Belgian measures and consultation of the Committee established pursuant to Article 23a of Directive 89/552/EEC, the Director-General for Education and Culture informed Belgium, by letter of 7 April 2004, that the European Commission did not intend to object to the measures notified.

(20) The Belgian measures were adopted in the Flemish Community on 28 May 2004 and in the French Community on 8 June 2004.

(21) Those measures were published in the C Series of the Official Journal of the European Union (2) in accordance with Article 3a(2) of Directive 89/552/EEC.

(22) 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 within the meaning of Article 249 of the EC Treaty, which must therefore be adopted by the Commission. Accordingly, it is necessary to declare by this Decision that the measures notified by Belgium are compatible with Community law. The measures, as finally taken by Belgium and set out in the Annex to this Decision, should be published in the Official Journal in accordance with Article 3a(2) of Directive 89/552/EEC,

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)

OJ C 158, 29.6.2005, p. 13.