The rules: defining the listed or the protected event

Articles 14 and 15 of Directive 2010/13 are a rather unusual example of the EU’s programme of legislative harmonization. They did not exist in the original 1989 Directive, but rather they were added on amendment in 1997.[1] [2] [3] Given the sensitivity of the issues at stake, there is no question of intrusion into exclusive broadcasting rights and sporting autonomy being dealt with exhaustively at EU level. In fact, the EU rules are alarmingly opaque. Article 14 on ‘protected events’ is the more complicated and it is examined first; Article 15 on short news reports is addressed later, in subsection 11.9.5.

Article 14 of Directive 2010/13 concerns protected events. These are explained in Article 14(1) as events which are regarded by a Member State as being ‘of major importance for society’. It is open to each Member State to take measures in accordance with Union law to ensure that broadcasters under its jurisdiction do not broadcast on an exclusive basis such events ‘in such a way as to deprive a substantial proportion of the public in that Member State of the possibility of following such events by live coverage or deferred coverage on free television’.^!

The central concept of an event of ‘major importance for society’ is not the subject of definition in the Directive. Recital 52 amplifies it:

Events of major importance for society should, for the purposes of this Directive, meet certain criteria, that is to say be outstanding events which are of interest to the general public in the Union or in a given Member State or in an important component part of a given Member State and are organised in advance by an event organiser who is legally entitled to sell the rights pertaining to those events.

Recital 49 refers—purely by way of illustration and non-exhaustively—to events ‘such as the Olympic Games, the Football World Cup and the European football championship’.

The Member State which chooses to take advantage of this regime is required to draw up a list of events which it chooses to designate as being of major importance for society, and it is required to do so in a clear and transparent manner in due time.182 It is provided by Article 14(2) that Member States shall notify measures taken to the Commission. The Commission is required to verify that the measures are compatible with Union law and to communicate them to the other Member

States. Measures taken are duly published in the Official Journal. The list reveals that most Member States do not feel the need to designate events as major for these purposes: only nine of the twenty-eight Member States have notified lists to the Commission.[4] [5] [6] [7] [8] Those Member States that do choose to intervene take varying approaches. This is in part because of local preference for idiosyncratic sports that are of interest only in some parts of the EU. So cricket is listed only by the United Kingdom, rugby only by the United Kingdom, Ireland, and France. But there is variation too even with regard to the same event which is of general interest. So, for example, the football World Cup Finals are listed in their entirety by Belgium and the United Kingdom, whereas Austria, France, Germany, and Ireland list only the opening match, the semi-Finals and Finals, and (should the team qualify) matches involving the national team of that state. Moreover, the lists are periodically changed. Denmark, for example, notified the Commission of its list in 1999 but withdrew this with effect from the beginning of 2002 and it now operates no list of the type recognized by Directive 2010/13.184 The United Kingdom used to require that home Test matches be broadcast live on free-to-air television, but from 2006 it has required only that secondary coverage (ie highlights) be available free- to-air. So after the tumultuous 2005 Ashes series in which England beat Australia for the first time since 1987, live coverage migrated from its long-standing home on the BBC to SKY’s subscription sports channel, where many more hours were devoted to the sport but the viewing audience was significantly smaller. In the short term, a great deal more money was earned by cricket: in the long-term, fans of the sport fear that a great deal of affection for it and even awareness of it, especially among younger people, will be lost. It is clear that choosing which events to ‘list’ is highly sensitive.185

An unsafe product in one Member State is in principle an unsafe product in every other Member State.^6 An unfair commercial practice in one Member State is in principle an unfair commercial practice in every other Member Stated7 But an event of major sporting interest in one Member State is not necessarily an event of major sporting interest in every other Member State. Rights to broadcast certain events are not to be sold exclusively to providers that are not free-to-air, but this is in essence a coordinating regime, not one that sets a common and comprehensive set of mandatory rules at EU level. The regime applies only if a state chooses to opt in to it, by designating certain events to be of major importance for society. This is perfectly clear from both the wording and intent of Article 14, which indeed begins with the formula: ‘Each Member State may take measures (emphasis added). The Commission too has long properly emphasized that this is a ‘voluntary provision’.[9] [10] [11] The EU’s legislative system facilitates the preservation of those national choices within the context of the wider internal market.

  • [1] Directive 97/36/EC (n 175). See R Craufurd Smith and B Boettcher, ‘Football and FundamentalRights: Regulating Access to Major Sporting Events on Television’ (2002) 8 European Public Law 107.
  • [2] Audiovisual Media Services Directive (n 174) Art 14(1). According to ibid Recital 53 ‘free television’ means broadcasting on a channel, either public or commercial, of programmes which areaccessible to the public without payment in addition to the modes of funding of broadcasting thatare widely prevailing in each Member State (such as licence fee and/or the basic tier subscription feeto a cable network).
  • [3] ibid Art 14(1).
  • [4] The list is at accessed 29November 2016. A consolidated list was published at [2008] OJ C17/7, but it is now out of date,as the website makes clear. On practice and definition, see Lefever (n 20) 229—35, 259—62, 265—68.
  • [5] The list was an ‘utter failure’, L Halgreen, European Sports Law (Forlaget Thomson 2004) 131.
  • [6] eg ‘Governing Bodies Line Up to Criticise TV “Crown Jewels” Review’ The Guardian (London,14 November 2009) Sports section, 9; ‘Cricketers Fear Ashes TV Rights Googly’ Financial Times(London, 12 November 2009) 5.
  • [7] Directive 2001/95/EC of 3 December 2001 on general product safety [2002] OJ L11/4.
  • [8] Directive 2005/29/EC of 11 May 2005 concerning unfair business-to-consumer commercialpractices in the internal market [2005] OJ L149/22.
  • [9] Third Report on the application of Directive 89/552, COM (2001) 9, p 8.
  • [10] accessed 29 November 2016.
  • [11] There are instances elsewhere in the world, see eg action pursuant to The Broadcasting ServicesAct 1992 in Australia (regulation is known as ‘anti-siphoning’) accessed 29 November 2016.
 
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