One of the most controversial judgements of the European Court of Justice this year concerned the best-loved sport of them all: football.

... football matches, as such, cannot be considered as ‘works’ for the purposes of intellectual property rights...- Simon Busuttil

In a first judgement of its kind, the court ruled in favour of pub owners in the UK who were prosecuted by the Football Association Premier League for having screened football matches using a cheaper subscription that they made in Greece rather than in the UK.

Maltese judge Anthony Borg Barthet was a member of the Grand Chamber that delivered the judgement.

In brief, the facts of the case were the following:

The pub owners concerned had taken up a satellite TV football subscription in Greece after providing a false name and address in that country. They then used this subscription and their decoding devices back in the UK in order to screen the league matches in their pubs and restaurants for the benefit of their clientele.

Taking umbrage at this practice, the Football Association Premier League, which owns the rights of the football league, instituted legal proceedings against the operators of four pubs and restaurants and also against those who supplied them with the necessary equipment.

A separate case was referred to the European Court after another pub owner, Karen Murphy, was prosecuted for doing the same thing.

The FA claimed that it had licensed the rights to broadcast Premier League matches to Sky. However, the pub owners had, instead, obtained their subscription from the Greek licencee and used it back home in the UK. The FA claimed that this was not possible because the licence was expressly limited to the national territory and, therefore, decoders could only be used in the territory of the country where the subscription was taken out and not outside.

The UK court referred the cases to the European Court asking it to establish whether stopping this practice would be illegal under EU law.

Delivering its judgement, the European Court found in favour of the pub owners rejecting the FA’s claim that a subscription made in Greece, at a cheaper price, should not be used in the UK.

Here are some of the most important points that the European Court made.

Firstly, the fact that the subscription was made in Greece and used in the UK did not mean that the equipment concerned – the satellite decoder and cards – were in themselves illegal. Indeed, the equipment could be used perfectly legally in Greece. Nor was there any question of pirated cards. So there was no problem with the equipment being illegal here.

Secondly, it is illegal under EU law to ban the importation, sale or use of foreign decoding devices that give access to encrypted broadcasting services from other EU countries because this would breach the principle of free movement of services. This means that national law cannot ban imports, sale or use of these devices because this would be incompatible with EU law.

Thirdly, the Court rejected the claim that restrictions could be imposed in order to protect the intellectual property rights of the FA over the football matches of the Premier League. Quite the contrary, it said that football matches, as such, cannot be considered as “works” for the purposes of intellectual property rights and, therefore, the FA could not expect to own them.

In any case, it said, protecting licence rights could be achieved by measures that are far less restrictive than an outright ban.

The Court added that nothing prevented the FA from agreeing to licence fees that took into account the possibility of potential viewers outside the licence territory.

Fourthly, the Court said that neither the fact that the Greek subscriptions are taken out under a false name and address nor the fact that the subscription was used for commercial purposes in pubs justified restrictions to free movement of services.

For instance, it said, the fact that subscriptions intended for home use were used instead in commercial outlets, such as pubs and restaurants, has nothing to do with the fact that the subscription was not made in the UK. Indeed, UK subscriptions could also be abused in this manner.

Finally, the Court found that the clause limiting broadcasting exclusively to one national territory would fall foul of EU competition law if it obliged the broadcaster not to supply decoding services for viewing outside the licensed territory. This means that the FA cannot impose conditions on its Greek broadcaster not to supply services out of Greece in other EU countries.

This judgement opens a new window on broadcasting rights in an area that is of significant interest to millions of football followers across the EU.

Its impact could be vast because it may affect not just football watchers in pubs and restaurants but, by implication, also subscribers who want to watch football at home. For them the judgement is good news.

However, it is unlikely to be the end of the story. For the owners of the broadcasting rights will now be closely following the impact on their sales and revenues and this, in turn, may lead to changes in the way licence contracts are concluded.

Until then, it’s 1-0 for consumers.

www.simonbusuttil.eu

Very best wishes for the New Year to the editor, staff and readers of The Times.

Dr Busuttil is a Nationalist member of the European Parliament.