Article 2
This Decision is addressed to: Union des Associations Européennes de Football Route de Genève 46 CH - 1260 Nyon 2 Done at Brussels, 19 April 2001. For the Commission Mario Monti Member of the Commission (1) OJ 13, 21.2.1962, p. 204/62. (2) OJ L 148, 15.6.1999, p. 5. (3) OJ C 121, 29.4.2000, p. 14. (4) Registered as Case IV/C-2/34.319. (5) The complainants were originally: Case IV/33145 - Independent Television Association Limited (ITVA), complaint of 5 April 1989; Case IV/33734 - Gestevision, complaint of 24 October 1990; Case IV/34199 - British Sky Broadcasting Limited (BSkyB), complaint of 28 January 1992; Case IV/34784 - Channel Four Television, complaint of 13 July 1993; Case IV/34790 - Canal+ SA, complaint of 16 July 1993; Case IV/34948 - Telepiù srl., complaint of 13 December 1993; Case IV/35001 - CWL Telesport, complaint of 16 February 1994; Case IV/35048 - Telecinco SA, complaint of 22 March 1994; Case IV/37350 - Association of Commercial Television in Europe (ACT); complaint of 16 December 1998; Case IV/37461 - Channel 5 Broadcasting Limited, complaint of 6 April 1999. (6) Article 1(2) of the broadcasting regulations refers to "Any transmission or reproduction of a football match by any actual or future transmission technique (including, but not limited to Internet)". (7) Article 2(1) of the broadcasting regulations. (8) Article 5 of the broadcasting regulations. (9) UEFA defines the notion "intentional broadcast" as meaning broadcasts which are specifically produced for a given territory, e.g. in terms of language and/or content. (10) UEFA has published such information on its Internet home home page: http://www.uefa.com/. (11) UEFA has clarified this to mean news magazines, entertainment, and biographical and retrospective programmes that may include short excepts of football matches. (12) Article 4(2) of the broadcasting regulations: 1. matches involving the senior national representative team; 2. matches required to be broadcast live according to national legislation; and 3. any other match of national importance. (13) Article 4(3) of the broadcasting regulations. (14) During the 1999/2000 season only three national associations applied the exception in respect of nine matches. For the 2000/2001 season, no national association has notified any match (on 18 October 2000). (15) Article 2(2) of the broadcasting regulations. (16) Article 5 of the broadcasting regulations. (17) Article 7 of the broadcasting regulations. (18) OJ C 121, 29.4.2000, p. 14. Only ACT, Canal+, Gestevision Telecinco SA, Channel Four Television and Channel 5 Braodcasting Limited maintained their complaints after having been invited by letter to react to the notice in the Official Journal pursuant to Article 19(3) of Regulation No 17. The remaining complainants, who have not come forward, are therefore considered to have lost their status as complainants. (19) As illustrated by Canal+'s website in August 2000 where Canal+ stated that it is no less than "world-news" that Canal+ is now able to broadcast live English Premier League in Denmark on Saturday afternoon, which has been blocked for more than 30 years. Canal+ attributes this new development to several years of dialogue with DBU, UEFA and the EU, which has lead to less restrictive broadcasting rules. Canal+ will therefore broadcast live Premier League football on Saturday, Sunday and Monday. (20) In a similar way as the consumers' substitutability determines the upstream market of the supply of digital interactive television services by service providers to conent providers as the Commission decided in its decision of 15 September 1999 - Case 36.539 - British Interactive Broadcasting/Open (OJ L 312, 6.12.1999, p. 1). (21) Commission Decision of 20 September 1995, RTL/Veronica/Endemol (OJ L 134, 5.6.1996), p. 32) and Commission Decision of 3 March 1999, TPS (OJ L 90, 2.4.1999, p. 6). (22) See the following Commission Decisions: Commission Decision of 2 August 1994 (ICV/M.410 - Kirch/Richmond/Telepiù) (OJ C 225, 13.8.1994, p. 3), Commission Decision 94/922/EC of 9 November 1994 (IV/M.469 - MSG media Service) (OJ L 364, 31.12.1994, p. 1), Commission Decision of 3 August 1999 (COMP/M.1574 - Kirch/Mediaset) (OJ C 255, 8.9.1999, p. 3), Commission Decision of 21 March 2000 (COMP/JV.37 - BSkyB/KirchPay TV), (OJ C 110, 15.4.2000, p. 45), Commission Decision in RTL/Veronica/Endemol: see footnote 21, Commission Decision in TPS: see footnote 21, Commission Decision of 12 May 2000 (IV/32.150 - Eurovision), OJ L 151, 24.6.2000, p. 18). (23) Commission Decision in TPS: see footnote 21. (24) Commission Decision in Eurovision: see footnote 22. (25) For example, in England, the Premiership commences in August and ends in May. There are about 380 games played of which full live broadcasts of 60 take place. (26) In its answer 2d of 26 November 1999 to the Commission's request for information, VMM (Vlaamse Media Maatschappij) states 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 sport such as football and cycling, are important for the image and the branding of the channel". (27) In its answer 2k of 15 November 1999 to the Commission's request for information of 20 September 1999, RTL considers 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 for branding purposes. (28) ONdigital in its reply 2j 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". NOS in its reply 2i of 16 November 1999 to the Commission's request for information of 21 September 1999 considers that: "Only to a limited exent NOS' interest in football is affected by the availability of Television 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." In reply 3e, NOS 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". (29) Richard Russell Associates, "Sports television: The ever changing face", 16 February 1999, pp. 10 and 12. (30) See footnote 25. (31) This conclusion is justified by broadcasters' responses to Article 11 letters; in particular replies of Eurosport, RTBF, VMM, VRT, France 2 and 3, and NOS. (32) In its reply 2k of 26 November 1999 to the Commission's request for information of 21 September 1999 VMM 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 recently acquired the television rights to the UEFA Champions League and provides these rights on a promotional basis free to subscribers, states in its reply 2d 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 2l of 23 November 1999 to the Commission's request for information of 20 September 1999, ONdigital states that "ONdigital believes that the brand image and value attached to its consumer offer is directly by the sports content available on the platform". (33) Kagan Euro TV Sports, 26 July 1996. (34) ONdigital in its reply 2e of 23 November 1999 to the Commission's request for information of 20 September 1999. (35) Kagan Euro TV Sports, 26 July 1996. (36) ITV's reply 6f of 12 November 1999 to the Commission's request for information of 10 September 1999. (37) 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. (38) For example, whilst a breakfast cereal producer may have a less specific target audience, 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). (39) Channel 5's reply 5c of 19 November 1999. (40) For example in 1998, in the United Kingdom, television-viewing per day reached 81 % of the adult population aged 16 and over. This group also watched on average 241 minutes of television per day. In contrast in the same period, television only reached 73 % of the 16 to 34-year-old population. This group only watched a total of 182 minutes of television per day. (41) For example Young & Rubicam Europe, reply 2e 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". McCann-Erikson's reply 4a of 3 November 1999 to the Commission's request for information of 8 October 1999. Channel 5, reply 5c. ITV stated in its reply 5c 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 2e of 3 November 1999 to the Commission's request for information of 8 October 1999 supports this. RTL considers in its reply 6d(i) 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". (42) McCann-Erikson's reply 3a of 3 November 1999 to the Commission's request for information of 8 October 1999. (43) Recital 40 of the Eurovision decision: see footnote 22. (44) Kagan Euro TV Sports, 26 July 1996, p. 8. (45) Kagan Euro TV Sports, 26 July 1996, p. 163. (46) ONdigital in its reply 2i of 23 November 1999 to the Commission's request for information of 20 September 1999. (47) Recitals 42 and 43 of the Eurovision decision: see footnote 22. (48) See Commission decisions in Cases: M.779 - Bertelsmann/CLT of 7 October 1996 (OJ C 364, 4.12.1996, p. 3); RTL/Veronica/Endemol: see footnote 21. (49) See judgments of the Court of 12 December 1974, Case 36/74, Walrave v Union cycliste internationale, [1974] ECR 1405, paragraph 4, of 14 July 1976, Case 13/76, Donà v Mantero, [1976] ECR 1333, paragraph 12, of 15 December 1995, Case C-415/93, URBSF v Bosman, [1995] ECR I-4921, paragraph 73, of 11 April 2000, Cases C-51/96 and C-191/97, Christelle Deliège v Ligue Francophone de Judo et Disciplines Asbl and Others [2000] ECR I-2549, paragraphs 41 and 42, and of 13 April 2000, Case C-176/96, Jyri Lehtonen and Others v Fédération Royale Belge des Sociétés de Basket-ball ASBL (FRBSB), [2000] ECR I-2681, paragraphs 32 and 33. (50) 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 of "undertaking" does not presuppose a profit-making intention. See opinion of Advocate-General Lenz in Case C-415/93, URBSF v Bosman, [1995] ECRI-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. (51) Opinion of Advocate-General Lenz in Case C-415/93, URBSF v Bosman, [1995] ECR I-4921, paragraph 256. See also Commission Decision of 27 October 1992 relating to a proceeding under Article 85 of the EEC Treaty (IV/33.384 and IV/33.378 - Distribution of package tours during the 1990 World Cup) (OJ L 326, of 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") and judgment of the Court of First Instance of 9 November 1994 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 Articles 81 and 82. See also Joined Cases C-51/96 and C-1291/97, Christelle Deliège v Ligue Francophone de Judo et Disciplines Asbl and Others, reference given above, at paragraphs 52 to 57. (52) If they were categorised as agreements between undertakings, this would not change the situation since Article 81 of the EC Treaty and Article 53(1) of the EEA Agreement apply in the same way to both those forms of coordination. See opinion of Advocate-General Lenz in Case C-415/93, URBSF v Bosman, [1995] ECR I-4921, paragraph 258. (53) The existence of four associations in the United Kingdom has historical reasons. (54) The possibility of derogating from the blocked hours provided for by Article 4 of the broadcasting regulations is coherent with the approach in Article 3(a)(1) of Council Directive 89/552/EEC (OJ L 298, 17.10.1989, p. 23), which aims at ensuring that a substantial proportion of the public is not deprived of the possibility of following such events via live live coverage or deferred coverage. (55) For example Canal+ is broadcasting English Premier League football into Denmark on Saturdays, Sundays and Mondays.