ECJ: Advocate General’s Opinion in Case C-283/11 (Sky Österreich GmbH v ORF)

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According to Advocate General Bot, the limitation of the compensation payable by a television channel for the use of short extracts of high-interest events to the public, such as football matches, is justified. That limitation establishes a fair balance between the various fundamental rights concerned

The Audiovisual Media Services Directive allows television channels to acquire exclusive rights to broadcast events of high interest to the public, such as football matches. A channel which has such rights must however allow other channels established in the EU to use short extracts so that they may transmit short news reports on those events. Accordingly, that channel must provide other channels with access to its signal to allow them to freely choose short extracts. According to the directive, the compensation linked to that use may not exceed the additional costs directly incurred in providing that access.

Sky broadcasts the coded digital television programme ‘Sky Sport Austria’ by satellite in Austria. It acquired exclusive rights to broadcast certain Europa League matches in the 2009-2010 to 2011-2012 seasons within the licence territory of Austria. According to its own statements, Sky spends several million euros each year on the licence and production costs.

At the request of ORF (the Austrian public broadcaster), the Austrian regulatory authority in the field of communications, KommAustria, decided, in December 2010, that Sky was to grant ORF the right to transmit short news reports on Europa League matches involving Austrian teams. ORF was only required to pay Sky compensation for the costs of access to the satellite signal, which were zero in this case.

Sky takes the view that the systematic prohibition of the payment of compensation to the holders of exclusive broadcasting rights to enable other channels to use short extracts is unfair. The Bundeskommunikationssenat (Federal Communications Tribunal), before which the dispute was brought, asks the Court of Justice whether the directive, which limits compensation to the additional costs directly incurred in providing access to those extracts, constitutes a justified interference with the freedom to conduct a business and the right to property of holders of exclusive rights.

In his Opinion delivered today, Advocate General Bot points out that the freedom to conduct a business and the right to property are guaranteed by the EU Charter of Fundamental Rights. He states that the disputed provision of the directive interferes with the fundamental rights conferred on holders of exclusive rights of transmission because they can no longer freely decide the price they charge for access to short extracts of events. However, that interference is justified and consequently the disputed provision of the directive is not contrary to the Charter of Fundamental Rights. Here to read more.

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