Four companies operating free-to-air television channels with national coverage (the French channel Metropole television SA, the Spanish companies Antena 3 de Televisi[cent]n, SA and Gestevisi[cent]n Telecinco, SA and the Portuguese company Sociedade Independente de Comunicaca) are challenging the EBU rules. They are particularly concerned about the EBU sub-licensing system for access for third parties (rivals to the EBU members) under the Eurovision system, which is at the centre of the four applications.
--The EBU is a non-profit-making trade association based in Switzerland. It represents radio and television organisations. It has 68 active members in 49 countries located in the European broadcasting area and 50 associate members based in 30 non-Euro-zone countries. At the EBU's inception, in 1950, radio broadcasting services were provided almost exclusively by non-commercial bodies, enjoying a monopoly. When commercial broadcasting companies started appearing in the second half of the 1980s, the EBU allowed the commercial channel Canal+ to become a member. TFI was able to retain its 'active member' status after it was privatised. The organisation makes a distinction between two member categories: active members and associate members. In order to become an active member, a broadcasting body has to have a remit of relevance to the general public. This involves, in particular, providing a broadcasting service on a nation-wide scale and with a national character and offering a broad range of programmes for all sections of the population.--
Eurovision is a television programme exchange system based on the understanding that member radio and television organisations will offer other members their coverage of major news items, reports and sporting and cultural events on their respective national territories when these are likely to be of interest of to each other. It is co-ordinated by a professional association, the European Broadcasting Union (EBU), whose active members may participate in the joint acquisition and sharing of television rights to international sporting events, known as 'Eurovision rights'. A sub-licensing system has been established to govern access to the Eurovision system by associate members and non-members.
A 1993 Decision by the Commission granting an exemption from the EU's competition rules applying to companies for access to the rights held by the EBU was annulled by the Court of First Instance on July 11, 1996. Subsequently, on the Commission's request, the EBU adopted new provisions, which were the subject of a second Commission exemption Decision (covering the period to December 31, 2005) on May 12, 2000. These new provisions are designed to make the system less restrictive for third parties. It makes improvements in the area of sub-licences, considered to offer wide opportunities for live and deferred transmission for non-members on reasonable terms. The Commission Decision also paid heed to the fact that the EBU's market has shrunk quite considerably over the last 10 years owing to the arrival of new market operators.
The new Court ruling suggests the sub-licensing system does not guarantee competitors of members of the EBU sufficient access to the transmission rights for sporting events. The Court's assessment of the Eurovision competition system pinpoints two types of restrictions:
- first, the joint acquisition of television rights to sporting events, their sharing and the exchange of signal restricts or even eliminates competition among EBU members which are competitors on both the upstream and downstream markets;
- second, the system gives rise to restrictions on competition for third parties, since those rights are generally sold on an exclusive basis, an 'aggravating' circumstance for non-members which are refused access to them.
The Court stresses that both the rules of the system fail, with a few exceptions, to allow competitors to EBU members to obtain sub-licences for the live broadcast of unused Eurovision rights. In reality, the system allows the transmission of competition roundups only under very restrictive conditions. The Court concludes that the Commission has therefore made a manifest error of assessment in determining that the sub-licensing system could be granted an exemption.
(*) Joined cases T-185/00, T-216-00, T-299/00 and T-300/00
