Nowadays we can watch programmes from all over the EU, not just on our televisions but also on our PCs, laptops, tablets and even our phones. And like other goods and services widely available across the EU, audiovisual media falls under the remit of the Single European Market and is subject to the same rules. These rules are laid down in the EU’s Audiovisual Media Services Directive (AMVS).
EU regulation of audiovisual media began in the early 1980s as a result of developments in satellite broadcasting. Adopted in 1989, the Television without Frontiers Directive (TwFD) defined the first set of rules for television broadcasting in the EU and has been amended several times since, in accordance with market developments and new technologies. (For more information on the history of the audiovisual framework please see: http://ec.europa.eu/avpolicy/reg/history/index_en.htm).
The EU’s sports broadcasting laws in particular have met with controversy since 1997, when TwFD was amended to allow important sporting events to be broadcast free of charge to the public in an effort to curb pay-TV stations from buying their exclusive rights. Many legal battles have been fought since surrounding the interpretation of this legislation. Major cases include: The Murphy Case (2011), The Sky Österreich case (2013) and FIFA/UEFA v the Commission (which will be discussed below).
Under current EU Law, Member States have the right to designate international sporting events of ‘major importance for society’ and to nominate them for broadcast on free-to-air television channels in that particular country. Each Member State must submit its free-to-air list to the European Commission for review and verification that its identified events are compatible with EU law. In essence, this means that while one match might be free-to-air in Portugal, that same match might only be available on a pay-per-view basis in Ireland.
FIFA and UEFA v Commission
In 2010, Belgium submitted the (FIFA) World Cup as a free-to-air sporting event to the Commission, while the UK did the same with both the FIFA World Cup and the UEFA European Football Championship. The European Commission verified both the UK and Belgian lists, deciding that they were compatible with EU law. As a result, all the designated matches were to be available on free-to-air television in Belgium and the UK. The Commission’s approval of both sporting events was strongly contested by both FIFA and UEFA, who subsequently brought the Commission before the European Court of Justice (ECJ). On 17 February 2011, the court ruled in favour of the Commission resulting in the FIFA World Cup being aired as free-to-view in Belgium and the UK, and the UEFA European Football Championship also being aired as free-to-view in the UK. FIFA and UEFA have since challenged the ECJ’s 2011 judgement; however their appeal was rejected on 18 July 2013.
What does this mean?
As a consequence of the recent ECJ ruling, the Audiovisual Media Services Directive has been amended to allow the governments of EU Member States greater discretion in selecting events to list as free-to-air.
It is important to reiterate that events included in national lists differ from Member State to Member State, depending on national traditions and importance, and that it is the government who judges which events are of importance to their society. In the past, the Commission has raised doubts about the validation of designating certain sporting events as free-to-air, however, this new ECJ ruling states that the Commission has limited rights to overrule the wishes of a government.
Designated free-to-air events for Ireland include: the Olympics, the All-Ireland Senior Hurling and Football finals, Ireland matches in the FIFA and UEFA championships and Ireland’s matches in international rugby tournaments.
UK MEP Sharon Bowles referred to the latest ECJ ruling as a victory for sports fans, stating that “FIFA and UEFA already make a lot of money from fans. It would have been very sad if one of the world’s biggest sporting competitions, the World Cup, became a pay-per-view event, available only to those who could afford it”. Fine Gael MEP, Sean Kelly, stated free-to-air broadcasting of soccer was an important right for fans in Ireland: “Watching live sport has long been an extremely popular source of entertainment and I welcome moves to ensure that there will be no pay-per-view for the World Cup or European championship.”
However, the judgement has also come in for criticism. FIFA has claimed that a requirement for free-to-air coverage ‘distorts the media market, negatively impacting FIFA’s ability to reach football fans with new services’. While both FIFA and UEFA declined to say how much potential revenue they stand to lose, UEFA stated that the ruling ‘reduces the possibility to generate income that can be distributed to the amateur game via solidarity payments’. The ruling also has negative implications for broadcasting rights-holders such as Sky, which currently has the exclusive rights to both the British Open Championships and the Ashes.
For more information on sports broadcasting in the EU please see:
- FIFA v Commission – Judgement of the Court (17 February 2011)
- FIFA v Commission – Judgment of the Court (18 July 2013)
- The evolution of the free-to-air broadcasting battle in Europe
- Report on the Designation of Sporting Events
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