This Decision is addressed to:
Union des Associations Européennes de Football Route de Genève, 46 1260 Nyon 2 Switzerland
Done at Brussels, 23 July 2003.
For the Commission
Mario Monti
Member of the Commission
(1) OJ 13, 21.2.1962, p. 204/62.
(2) OJ L 1, 4.1.2003, p. 1.
(3) OJ C 196, 17.8.2002, p. 3.
(4) OJ L 354, 30.12.1998, p. 18.
(5) OJ C 269, 8.11.2003.
(6) Media rights (radio, television, Internet and UMTS), sponsorship, suppliership, licensing and IPRs.
(7) Article 1 of UEFA's Statutes (Edition 2000).
(8) Article 5 of UEFA's Statutes.
(9) In the United Kingdom, there are four UEFA member associations: England, Wales, Scotland and Northern Ireland.
(10) Article 48 of UEFA's Statutes.
(11) Article 18 of UEFA's Statutes.
(12) Article 13(1)(f) of UEFA's Statutes.
(13) Article 13(1)(g) of UEFA's Statutes.
(14) Article 21 of UEFA's Statutes.
(15) Article 23(2) of UEFA's Statutes.
(16) Article 24(1)(e) of UEFA's Statutes.
(17) Article 49 of UEFA's Statutes.
(18) Regulations for the UEFA Champions League 1998/1999.
(19) The range of services that UEFA arranges include: product development, sales, after sales services and client relations with broadcasters, sponsors, suppliers, licensees and participating clubs, media services (booking of commercial spots and broadcast sponsorship throughout the world), legal services, television production services, auditing and monitoring of UEFA Champions League television programs throughout the world, research services, operational implementation of the commercial concept, hospitality services, financial and administrative services, and statistical and information services (competition analysis).
(20) For example there is a computer and telecommunications supplier, which provides technical support to the broadcast graphics service and, in return, receives on-screen credits in all the European live match broadcasts and during the highlights programme.
(21) The UEFA Champions League licensing concept allows for selected companies to produce high-quality products related to the UEFA Champions League, for example, UEFA Champions League video games, UEFA Champions League videos or UEFA Champions League CD-ROM football encyclopaedias.
(22) See also point 4.2.1.3 of the Report from the Commission to the European Council with a view to safeguarding current sports structures and maintaining the social function of sport within the Community framework - The Helsinki Report on Sport - of 10 December 1999:
"Any exemptions granted in the case of the joint sale of broadcasting rights must take account of the benefits for consumers and of the proportional nature of the restriction on competition in relation to the legitimate objective pursued. In this context, there is also a need to examine the extent to which a link can be established between the joint sale of rights and financial solidarity between professional and amateur sport, the objectives of the training of young sportsmen and women and those of promoting sporting activities among the population. However, with regard to the sale of exclusive rights to broadcast sporting events, it is likely that any exclusivity which, by its duration and/or scope, resulted in the closing of the market, would be prohibited."
(23) Referred to as package 1 and 2 and also as the Gold and Silver packages in UEFA's rights segmentation table.
(24) Referred to as package 4 in UEFA's rights segmentation table.
(25) Referred to as package 5 in UEFA's rights segmentation table.
(26) Referred to as package 3 in UEFA's rights segmentation table.
(27) A "break-bumper" is an editorial graphic element at the beginning and end of a commercial break, which is used to separate the match programme from commercial spots. It normally includes UEFA Champions League and sponsor identification.
(28) In a similar way as the customer substitutability determines the upstream market for the supply of digital interactive TV services by service providers to content providers, see Commission Decision 1999/781/EC in Case IV/36.539 British Interactive Broadcasting/Open (OJ L 312, 6.12.1999, p. 1).
(29) Commission Decision IV/M.553 - RTL/Veronica/Endemol (OJ L 134, 5.6.1996, p. 32) and Commission Decision 1999/242/EC - TPS (OJ L 90, 2.4.1999, p. 6).
(30) Commission Decision 1999/242/EC - TPS (OJ L 90, 2.4.1999, p. 6).
(31) Commission Decision 2001/478/EC - UEFA Broadcasting Regulations (OJ L 171, 26.6.2001, p. 12).
(32) Commission Decision COMP/M.2483 - Canal+/RTL/GJCD/JV (IP 01/1579).
(33) In the same manner the Commission stated in the Newscorp/Telepiù case, that there exists a separate market for the acquisition of exclusive broadcasting rights for football events played every year where national teams participate (the national league, primarily first division and cups, the UEFA Champions League and the UEFA Cup). Commission Decision COMP/M.2876 - Newscorp/Telepiù, (IP/03/478).
(34) For example, in Germany the Bundesliga commences in August and ends in May. There are 306 games played in the tournament, which are all broadcast live throughout the season.
(35) Vlaamse Media Maatschappij state in an answer of 26 November 1999 to the Commission's request for information that: "The acquisition (and broadcasting) of sports rights (programmes) is, in general not a profitable investment as such. However, the broadcasting of sports programmes, especially popular sports such as football and cycling, are important for the image and the branding of the channel."
(36) RTL considers in its answer of 15 November 1999 to the Commission's request for information that "The actual prices for football rights are so high that (...) they cannot be covered by the revenues generated with football programming." If such rights are still acquired anyway, it is reasonable to think that this is because of branding purposes.
(37) NOS in its reply of 16 November 1999 to the Commission's request for information of 21 September 1999 considers that: "Only to a limited extent NOS' interest in football is affected by the availability of TV rights for other sports (...) because it is the No 1 sports in the Netherlands (...) football plays a key role in NOS' sports programming (...) providing other sports broadcasts by NOS with an audience they would not normally attract." NOS also states that: "(...) football is a unique product in 'a league of its own'. No other sport has audience figures/market share that come close to those of football (...) enhance the image of NOS." ONdigital in its reply of 23 November 1999 to the Commission's request for information of 20 September 1999: "Our interest in football is not affected by the availability of other film, series, game shows or other content again, because of the unique market position football holds in the United Kingdom and partly because football is likely to appeal to a different market segment." Richard Russell Associates have described sport as a "driver" for BSkyB's 10-year old business in "Sports Television: The ever changing face", 16 February 1999, pp. 10 and 12.
(38) In its reply of 26 November 1999 to the Commission's request for information of 21 September 1999 Vlaamse Media Maatschappij states that "Actually, acquisition of TV rights for sport (especially football) is not a profitable operation as such (...). However...the branding of VMM's channels will be the decisive parameter for deciding the acquisition of TV rights for football games." For instance ONdigital, which has acquired the pay-TV rights to the UEFA Champions League and provided these rights on a promotional basis free to subscribers, states in its reply of 23 November 1999 to the Commission's request for information of 20 September 1999 that "In the early stages of platform growth building the subscriber base is considered to be more important than pure profit." Further in its reply ONdigital states that "ONdigital believes that the brand image and value attached to its consumer offer is directly affected by the sports content available on the platform."
(39) Kagan Euro TV Sports, 26 July 1996.
(40) ONdigital's reply of 23 November 1999.
(41) According to Kagan's "European media sports rights", April 1999, football took the major share of the total rights expenditure in most Member States in 1998 (the share of the nearest rival is in brackets): Austria 32,4 % (skiing 11,3 %); Belgium 53,6 % (cycling 9,5 %); Denmark 45,4 % (handball 13,2 %); Finland 32,1 % (ice hockey 16,9 %); France 37,8 % (motor racing 9,3 %); Germany 42 % (tennis 6,6 %); Greece 43,3 % (basketball 41,4 %); Ireland 47 % (horse racing 13,1 %); Italy 65,2 % (motor racing 7,4 %); Netherlands 54,5 % (motor racing 9,3 %); Portugal 44,3 % (motor racing 11,8 %); Spain 51,6 % (basketball 10,1 %); Sweden 39,5 % (ice hockey 19,1 %); United Kingdom 51,6 % (rugby 11,7 %).
(42) Kagan's "European media sports rights" April 1999.
(43) ITV's reply of 12 November 1999 to a request for information of 10 September 1999.
(44) Thus a football boot producer will, for example, reach a larger number of potential buyers by showing one advert during the final of a football tournament, when "aficionados" are likely to be watching, and another during a feature film, when the weekend player may be watching, than showing two adverts during the football final. In this way a larger number of potential buyers will be contacted.
(45) For example, whilst a producer of breakfast cereals may have a broader target group, a meat producer is unlikely to wish to place an advert during a programme dedicated to vegetarian issues, even if this programme is very popular. Thus if broadcasters wish to have the business of meat producers, they can not only show programmes about vegetarianism, they must also televise programmes which are watched by people who are at least willing to eat meat (even if the programmes attract fewer viewers).
(46) Channel 5's reply of 19 November 1999.
(47) RTL considers in its reply of 15 November 1999 to the Commission's request for information of 20 September 1999 that it "would lose advertising revenue if it substituted the UEFA Champions League by other football events or other sports events. Even if the viewer profile would be the same, the viewing times for these events would be much less because these sports events are less attractive." Young & Rubicam Europe states in its reply of 21 October 1999 to the Commission's request for information of 8 October 1999: product "categories targeting female consumers are unlikely to advertise in sports programmes." Channel 5's reply: "These (football) audiences are more male in profile than the average, younger than the average, and more upmarket than the average." ITV stated in its reply of 12 November 1999 to the Commission's request for information of 10 September 1999 that the audiences to the UEFA Champions League "are more male in profile than the average, younger than the average and more upmarket than the average." McCann-Erikson's reply of 3 November 1999 to the Commission's request for information of 8 October 1999 supports this.
(48) McCann-Erickson's reply of 3 November 1999 to a Commission request for information of 8 October 1999.
(49) Kagan Euro TV Sports, 26 July 1996, page 8.
(50) Kagan Euro TV Sports, 26 July 1996, page 163.
(51) Kagan World Media, 2002, page 3.
(52) See Commission Decision Comp/JV.48 - Vodafone/Vivendi/Canal+ (Vizzavi).
(53) See judgments of the Court of Justice in Case 36/74, Walrave v Union Cycliste Internationale, [1974] ECR 1405, paragraph 4; Case 13/76, Donà v Mantero, [1976] ECR 1333, paragraph 12; Case C-415/93, URBSF v Bosman, [1995] ECR I-4921, paragraph 73; Joined Cases C-51/96 and C-191/97, Christelle Deliège v Ligue francophone de judo et disciplines associées ASBL, Ligue belge de judo ASBL, Union Européenne de judo (C-51/96) and François Pacquée (C-191/97) [2000] ECR 2549, paragraphs 41 and 42; Case C-176/96, Jyri Lehtonen and Castors Canada Dry Namur-Braine ASBL v Fédération royale belge des sociétés de basket-ball ASBL (FRBSB), [2000] ECR 2681 paragraphs 32 and 33.
(54) For example, selling tickets, transferring players, distributing merchandising articles, concluding advertising and sponsorship contracts, selling broadcasting rights, etc. The size of the undertaking does not matter and the concept does not presuppose a profit-making intention. See opinion of Advocate General Lenz in Case C-415/93, URBSF v Bosman, [1995] ECR I-4921, paragraph 255 referring to the judgment in Joined Cases 209 to 215 and 218/78, Van Landewyck v Commission [1980] ECR 3125, paragraph 88.
(55) Opinion of Advocate General Lenz in Case C-415/93, URBSF v Bosman, [1995] ECR I-4921, paragraph 256. Commission Decision 92/521/EEC - Distribution of package tours during the 1990 World Cup, OJ L 326, 12.11.1992, p. 31, paragraph 49: "(...) FIFA is an entity carrying on activities of an economic nature and constitutes an undertaking within the meaning of Article 85 of the EEC Treaty" and paragraph 53: "The (Federazione Italiana Gioco Calcio = the national Italian football association) also carries on activities of an economic nature and is consequently an undertaking within the meaning of Article 85 of the EEC Treaty". Judgment in Case T-46/92, Scottish Football Association v Commission, [1994] ECR II-1039, from where it can be concluded that the Scottish Football Association is an undertaking or an association of undertakings within the meaning of Article 81 and 82. See also joined Cases C-51/96 and C-191/97, Christelle Deliège v Ligue Francophone de Judo et Disciplines ASBL and Others, [2000] ECR 2681 paragraphs 52-57, Case T-513/93 Consiglio Nazionale degli Spedizionieri Doganali v Commission of the European Communities ECR [2000] II-1807.
(56) Joined Cases 209 to 215 and 218/78 Fedetab, 1980 [ECR] 3125 at paragraph 88.
(57) Case 45/85 Sachversicherer at paragraph 32.
(58) If the Statutes were categorised as an agreement between undertakings, this would not change the situation since Article 81(1) of the Treaty and Article 53(1) of the EEA Agreement apply in the same way to both categories. See Case C-415/93, URBSF v Bosman, [1995] ECR I-4921 at paragraph 46.
(59) See chapter 5 (in particular chapter 5.3.1.2) of the Commission's guidelines on the applicability of Article 81 to horizontal cooperation agreements (OJ C 3, 6.1.2001, p. 2).
(60) In a reply of 16 February 2001 to the Commission's request for information of 15 November 2000, UEFA explains the situation regarding ownership to the TV rights in the EEA States is as follows: In Austria, the home club is recognised as the owner of the TV rights. Belgian legislation does not determine ownership to the TV rights to football. Danish legislation does not determine ownership, but in a concrete case the Danish competition authorities have allegedly stated that they consider that the TV rights of a match played in the Danish National Championship belong to the Danish Football Association, as the owner of the tournament, and the home club of the specific match jointly. English legislation is silent about the matter. The Finnish clubs are the owners to the TV rights to the matches of the Finnish club competitions. In France it is the club participating in the European tournament, which is the owner. In Germany, the clubs are the owners of the rights and the organiser, UEFA, could be considered to be a co-owner. According to Greek and Italian legislation the clubs are the owners of the TV rights. Luxembourg legislation is silent about the matter. Dutch case-law (under appeal) gives the ownership of the TV rights to the home club. In Northern Ireland, according to the Irish Football Association, the association owns the rights to the national league (no legal source quoted), however, the clubs themselves sell the TV rights to matches in European competitions. Portuguese legislation does not regulate the matter. In the Republic of Ireland it seems that the national association is the owner of the TV rights, but the TV rights to the European competitions are disposed of without interference from the football association. No information regarding the legislative situation in Scotland has been given. Reference is only made to the bylaws of the Scottish Football Association which claim ownership to the rights. Spanish legislation has not taken a position on the ownership issue. The clubs in the First and Second Division sell the rights individually. Swedish legislation is silent about the matter. No information has been submitted regarding the legal situation in Wales.
The Commission has asked the national football association in Iceland, Liechtenstein and Norway directly: In Iceland and Liechtenstein it is the clubs participating in the European competitions, which are considered as the owner. In Norway the individual clubs seem to be recognised as the owner of the TV rights.
(61) Article 295 of the Treaty provides that: "The Treaty shall in no way prejudice the rules in Member States governing the system of property ownership."
(62) See judgements in Case 36/74, Walrave v Union Cycliste Internationale, [1974] ECR 1405, paragraph 4; Case 13/76, Donà v Mantero, [1976] ECR 1333, paragraph 12; Case C-415/93, URBSF v Bosman, [1995] ECR I-4921, paragraph 73; Joined Cases C-51/96 and C-191/97, Christelle Deliège v Ligue francophone de judo et disciplines associées ASBL, Ligue belge de judo ASBL, Union Européenne de judo (C-51/96) and François Pacquée (C-191/97), [2000] ECR 2549, paragraphs 41-42; Case C-176/96, Jyri Lehtonen and Castors Canada Dry Namur-Braine ASBL v Fédération royale belge des sociétés de basket-ball ASBL (FRBSB), [2000] ECR 2681 paragraphs 32-33.
(63) Case C-415/93, URBSF v Bosman, [1995] ECR I-4921.
(64) This figure is calculated on the basis of the acquisition of domestic and UEFA tournaments. Source: A study commissioned by UEFA from Oliver & Ohlbaum Associates, London.
(65) See footnote 41.
(66) ITV, in its reply of 12 May 1999 to the Commission's notice (OJ C 99, 10.4.1999, p. 23) states that joint selling by a central selling body "... also significantly reduces the transaction complexity for broadcasters."
(67) Taurus Holding in a letter dated 22 January 2002.
(68) KrichMedia in a letter dated 17 September 2002 in reply to the Article 19(3) notice.
(69) Taurus Holding in a letter dated 22 January 2002.
(70) The bundling limitation logically does not apply to the whole sale level, as there is no risk that viewers would experience any brand confusion caused by a bundling at that level.
(71) Case 26/76 Metro v Commission [1977] ECR 1975, Case 42/84 Remia v Commission [1985] ECR 2545 and Cases 56 and 58/64 Consten & Grundig v Commission [1966] ECR 299.
(72) "The European Council thinks that moves to encourage the mutualisation of part of the revenue from such sales, at the appropriate levels, are beneficial to the principle of solidarity between all levels and areas of sport."
(73) On this point see also section 3.4.3.2.
(74) Package 5 of the rights segmentation table.
(75) Package 3 of the rights segmentation table.
