Hot on the heels of the Advocate General’s recommendation that the territory-by-territory licensing by Premier League of its television broadcasting rights across the EU is to be considered contrary to EU law, two landmark judgements handed down by the general court of the European Court of Justice in the so-called “crown jewels” cases ensure that major sports events will now be available to all viewers on free-to-air television.
The cases dealt with the EU’s Audiovisual Media Services Directive that allows EU member states the option to draw up a list of sporting events, which are of major importance to society, to be broadcast on free-to-air television. National governments safeguard these “crown jewels” sporting events for terrestrial television only so that they are available to the widest audience possible. Generally speaking in exercising their discretion while drawing up these lists, EU member states have limited the number of games to just the semi-finals and the final matches as regards World Cup and European Championships.
In these two cases, both Belgium and UK had exercised their discretion liberally in drawing up the lists to the extent of including all World Cup and all European Championship matches. The issue thus rested on which matches are to be considered of major importance to society and warrant to be available to the audience on free-to-air TV.
FIFA and UEFA lodged complaints against the Commission decision to approve lists of football matches to be available on free-to-view television submitted by Belgium and the UK. They challenged the entitlement of Belgium to include in such list all 64 World Cup matches, and UK’s inclusion of all European Championship matches.
Both sporting governing bodies FIFA and UEFA argued that the broadcasting rights to these events belonged to them and as such they were entitled to sell those rights to the highest bidder. By having entitlement to the lucrative World Cup and European Championships, FIFA and UEFA could choose to sell them to pay-tv broadcasters that are in a position to fork out more than their terrestrial counterparts.
Conversely, the Commission stressed that there is a wide margin of discretion for each member state to decide which event is of major importance for its own society and that, in its review of the Belgian and UK list, the Commission did not find them manifestly erroneous.
The court’s rulings found that the decision of member states to consider that all of the matches of those competitions are of major importance for society is compatible with the relevant provisions of EU law. The court held that the Commission acted correctly in approving the lists of sporting events of UK and Belgium.
The decision will mean that FIFA and UEFA will not be able to take full advantage of the broadcasting value for the “crown jewels”, forced as they are to sell the televised prime tournaments to terrestrial broadcasters rather than to pay-TV networks, such as cable.
This may lead UEFA and FIFA not being able to realise the broadcasting value of the World Cup and European Championships in the UK and Belgium.
As expected, this was great news to ordinary football enthusiasts who wish to have unrestricted access to the broadcasting of major sporting events. On the other hand, FIFA and UEFA were not delighted with the court’s rulings, and it remains to be seen whether they do, in fact, appeal.
Dr Grech is an associate with Guido de Marco & Associates and heads its European law division.