Friday, 25 January 2013

Football ≠ money - CJEU judgment in Case C-283/11 Sky Österreich v Österreichischer Rundfunk

This week, the CJEU handed down its preliminary ruling in the Sky Österreich case, concerning the question whether Sky had to grant the Austrian public broadcasting service the right to transmit short news reports on Europa League matches involving Austrian teams, without receiving any compensation in return. In line with A-G Bot's opinion (on which we reported in an earlier post on this blog), the Court held that:

'Consideration of the question raised has not disclosed any factor of such a kind as to affect the validity of Article 15(6) of 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).'

In other words, Sky's rights under the EU Charter of Fundamental Rights do not preclude the compensation which holders of exclusive broadcasting rights may seek from other channels for short news reports from being limited to technical costs.

As regards the right to protection of property, the Court is of the opinion that Sky cannot rely on this right in the present case. Although exclusive contractual broadcasting rights have asset value, 'when Sky acquired those rights by means of a contract (in August 2009), EU law already provided for the right to make short news reports, while limiting the amount of compensation to the additional costs directly incurred in providing access to the signal'.

Following its earlier case law, furthermore, the Court holds that the freedom to conduct a business, on which Sky sought to rely, 'is not absolute, but must be viewed in relation to its social function' (referring to Joined Cases C‑184/02 and C‑223/02 Spain and Finland v Parliament and Council [2004] ECR I‑7789, paragraphs 51 and 52, and Case C‑544/10 Deutsches Weintor [2012] ECR I‑0000, paragraph 54). In the present case, restrictions on the freedom to conduct a business are justified in light of the public interest, in particular the fundamental freedom to receive information and the promotion of media pluralism. According to the Court, the contested legislation strikes a fair balance between the rights and freedoms at issue.

See the CJEU's press release for a summary of the judgment.

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