The long-anticipated landmark judgement relating to Premier League football matches was recently handed down by the Court of Justice of the European Union and received, almost instantly, widespread acclaim by consumers and traders alike.

This ruling is a significant step in enhancing fair competition across the internal market- Josette Grech

This judgement, which follows hot on the heels of Advocate General Juliane Kokott’s opinion delivered earlier this year, generally adopts her line of thinking, and is expected to impact hugely on the way broadcasting rights and licences are bought and sold in the EU. To weigh up the significance of this judgement, a brief look at the circumstances which led to the CJEU’s ruling is opportune.

The Football Association Premier League, which is the governing body of the English Premier League matches, is the vehicle through which the Premier League clubs market the Premier League. It acquires ownership of various copyrights in the broadcasts of live Premier League matches. The broadcasting rights for live transmissions of Premier League matches are then licensed by FAPL to broadcasters on a territorial basis. In UK certain bars began to use foreign decoders to access and show Premier League matches. The foreign decoders allow access to a satellite broadcast in another member state, the subscription to which is less expensive than the English subscription.

Proceedings were instituted by FAPL against some owners of such pubs. The UK High Court in 2008 referred a set of questions to the CJEU concerning the legality of the use of foreign decoder devices in the UK to enable access to foreign satellite transmissions of live Premier League football matches. The foreign decoder cards at issue were bought from Greece, supplied on terms which prohibited their use outside Greece, and were being used to show live matches in pubs and bars in the UK.

In its judgement the court considered whether exclusive licence agreements in respect of intellectual property rights, which contain territorial restrictions, concluded between the FAPL as rights-holder and the broadcaster in a particular member state constituted an anti-competitive agreement.

The CJEU, quoting previous caselaw held that agreements which are aimed at partitioning markets nationally or which make the interpenetration of national markets more difficult, must be regarded as agreements which have the object of restricting competition. On these lines, it concluded that contractual restrictions prohibiting the sale and use of decoder devices by a broadcaster in one member state to enable viewers in another to access its broadcasts are contrary to the competition and free movement provisions of EU law.

The court held that territorial exclusivity on a member state basis is contrary to EU law and, more importantly, it found that such illegality cannot be justified by an objective of protecting intellectual property rights, such as copyright. In fact, the court ruled that the matches themselves do not enjoy copyright protection and only the opening video sequence, the Premier League anthem, and pre-recorded clips showing highlights of recent Premier League matches could be protected by copyright. This goes to re-affirm the court’s single market objective, condemning both member state measures and contractual arrangements entered into by undertakings which tend to fragment the internal market.

Furthermore, the court considered that foreign decoding devices such as cards bought from Greece and used in the UK, even if they were procured by the provision of a false name and address, were not illicit devices. The CJEU held that all such devices are manufactured and put on the market with the authorisation of the service provider. Users of such devices actually pay for the protected services in the member state where they have been placed on the market.

This ruling is a significant step in enhancing fair competition across the internal market, with the ultimate beneficiaries being consumers who are allowed to purchase foreign decoding devices and use them, instead of those supplied locally, to receive cheaper services.

jgrech@demarcoassociates.com

Dr Grech is an associate with Guido de Marco & Associates and heads its European law division.

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