Commission Decision of 21 December 2011 on the capability with EU law of measures to be taken by Italy pursuant to Article 14 Directive 2010/13/EU of the European Parliament and of the Council on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services (Audiovisual Media Services Directive) (2012/394/EU)

Commission Decision

of 21 December 2011

on the capability with EU law of measures to be taken by Italy pursuant to Article 14 Directive 2010/13/EU of the European Parliament and of the Council on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services (Audiovisual Media Services Directive)

(2012/394/EU)

THE EUROPEAN COMMISSION,

Having regard to the Treaty on the Functioning of the European Union,

Having regard to Directive 2010/13/EU of the European Parliament and of the Council of 10 March 2010 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services (Audiovisual Media Services Directive)(1), and in particular Article 14(2) thereof,

Whereas:

(1) By letter of 20 September 2011, received by the Commission on 21 September 2011, Italy notified to the Commission measures to be taken pursuant to Article 14(1) of Directive 2010/13/EU, aimed at integrating, updating and amending the measures currently in force, approved by the Commission by its Decision of 25 June 2007(2).

(2) The Commission verified, within a period of three months from this notification, that such measures are compatible with Community law, in particular with regard to 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 Italian media landscape.

(4) The amended list of events of major importance for society included in the Italian measures was drawn up in a clear and transparent manner, and a far-reaching consultation had been launched in Italy on the amendment of the previous list.

(5) The Commission was satisfied that the new events listed in the Italian 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) MotoGP Grand Prix is an event that enjoys particular popularity which is widespread throughout Italy and also interests audiences who would not normally follow it, precisely because of the involvement of Italian riders and manufacturers in an international tournament of major importance. It has also been traditionally broadcast on free-to-air television and commanded high viewing figures.

(7) The finals and semi-finals of the world championships for basketball, water polo and volleyball featuring the Italian national team, apart from fulfilling the criterion of a national team involved in an international tournament of major importance, generate a particular and widespread interest in Italy, even for audiences that do not usually follow these disciplines, and they have traditionally been broadcast on free-to-air television with a wide television audience.

(8) The Rugby World Cup matches which feature the Italian national team, apart from fulfilling the criterion of a national team involved in an international tournament of major importance, have a special and widespread resonance in Italy and also interest an audience that does not normally follow this sport.

(9) Six Nations rugby matches played by the Italian national team, apart from fulfilling the criterion of a national team involved in an international tournament of major importance, have a special and widespread resonance in Italy and also interest an audience that does not normally follow this sport, and they have traditionally been broadcast on free-to-air television with increasingly significant audience figures.

(10) The semi-finals and final of the Davis Cup and of the Fed Cup which feature the Italian national team, apart from fulfilling the criterion of a national team involved in an international tournament of major importance, have a particular and widespread resonance in Italy and interest audiences that would not normally follow this sport.

(11) The final and semi-finals of the Internazionali d’Italia tennis tournament which feature Italian tennis players, apart from involving Italians in an international tournament of major importance, have a particular and widespread resonance in Italy and interest audiences that would not normally follow this sport, partly because of where it takes place. The special resonance of this event is confirmed by the viewing figures, which show an apparent increase in the public’s interest and passion for the sporting discipline in recent years.

(12) The Road Cycling World Championships (men’s professional race) have a particular and widespread resonance in Italy and interest people other than those who normally follow this type of event, also because of the involvement of Italian athletes, and they have traditionally been broadcast on free-to-air television with high viewing figures.

(13) The first performance of the opera season at the La Scala Theatre in Milan enjoys a special and widespread resonance in Italy and interests people other than those who would normally follow this type of event, and it has a generally recognised particular cultural importance in Italy, and acts as a catalyst of Italian cultural identity.

(14) The New Year’s Concert broadcast from the La Fenice Theatre in Venice has a particular and widespread resonance in Italy and interests people other than those who would normally follow this type of event, it has a generally recognised particular cultural importance in Italy, acts as a catalyst of Italian cultural identity, and it has traditionally been broadcast on free-to-air television with high viewing figures.

(15) The Italian measures appear proportionate to justify, by the overriding reason of public interest in ensuring wide public access to broadcasts of events of major importance for society, the derogation from the fundamental freedom to provide services laid down in Article 56 TFEU.

(16) The Italian measures are also compatible with EU competition rules in so far as the definition of the qualifying broadcasters for the broadcasting of listed events relies on objective criteria (required coverage), which allow actual and potential competition for the acquisition of the rights to broadcast these events. In addition, the number of listed events is not so disproportionate as to distort competition on the downstream free television and pay television markets.

(17) The general proportionality of the Italian measures is supported by several factors. First, the lowering of the threshold of the required coverage of the population for qualifying broadcasters from 90 % to 80 % increases the proportionality of the measures, in so far as it increases the number of broadcasters who potentially qualify. Secondly, a voluntary mechanism has been introduced for the resolution of disputes between broadcasters as regards the definition of the technical broadcasting modalities and the payment of fair compensation for the sub-licensing of exclusive broadcasting rights. Thirdly, the entry into force of the final Italian measures will be postponed to 1 September 2012, in order to ensure that any ongoing negotiations are not adversely affected. Finally, the Italian measures make provision for situations in which the rights to the events listed are purchased by non-qualifying broadcasters, in order to ensure appropriate arrangements for sub-licensing of rights to qualifying broadcasters, and for situations in which there might be no qualifying buyers for the events listed, in order to ensure that the non-qualifying broadcaster is able to exercise its rights so as to avoid a situation in which the event listed would not be broadcast at all.

(18) The Commission communicated the measures to be taken notified by Italy to the other Member States and presented the results of this verification at the meeting of the Committee established pursuant to Article 29 of Directive 2010/13/EU. The Committee adopted a favourable opinion at this meeting,

HAS DECIDED AS FOLLOWS:

(1)

OJ L 95, 15.4.2010, p. 1

(2)

Commission Decision 2007/475/EC of 25 June 2007 on the compatibility with Community law of measures taken by Italy 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 (OJ L 180, 10.7.2007, p. 5).