Broadcasting Rights of Sporting Events under European Anti-trust Law – Symposium on 20 May 2005 |
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MPI für Privatrecht, Hamburg 15.08.2007 |
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On 20 May 2005 a symposium of the Forum on International Sports Law addressing “Broadcasting Rights of Sporting Events under European Anti-trust Law” took place. The symposium was prompted by the controversy regarding the right of first transmission for the Olympic Games in 2010 and 2012.The acquisition of broadcasting rights of sports events by broadcasting corporations in its present form raises immense problems of anti-trust law and is politically delicate. The primary battle-line between private and public broadcasting stations, the latter being collectively represented by the European Broadcasting Union (EBU/UER). The EBU covers 51 states comprising all members of the EU (for a comprehensive account see Rüdiger Zeller, Die EBU – Internationale Rundfunkkooperationen im Wandel, Baden-Baden, 1999). The long –running dispute hit a new peak when in July 2004 the International Olympic Committee (IOC) accepted the tender of the EBU for the first transmission rights of the Olympic Games in 2010 and 2012 for its member states with the exception of Italy. As regards to Germany, the public broadcasting stations ARD and ZDF acquired this right without even having placed an offer. In addition to the EBU, private broadcasting stations also took part in the tender process, placing offers for the whole of Europe as well as for individual states. For Germany, Premiere and the ProSiebenSat.1-Group, among others, participated. They lost despite the fact that the EBU’s offer was lower than that of their private counterparts. The IOC justified its decision primarily with the expectation that by so doing they would obtain the largest possible transmission coverage via free television. In October 2004 the head of Premiere reiterated his intention to file a complaint with the European Commission against the EBU. He contended that the EBU was a buying-cartel violating EU anti-trust law. Among other elements, his argument relies on a decision of the European Court of Justice dating from 27.09.2004 (Case C-470/02 P). There the court dismissed an appeal against a decision of the Court of First Instance (from the 08.10.2002 joined cases T-185, T-216/00, T-299/00 and T-300/00). The Court of First Instance had granted a claim of several private broadcasting stations and had repealed a grant of exemption of the EU Commission in favour of the EBU according to Art. 81 sec. 3 EG. It held that the cooperation of public broadcasting corporations in pursuit of a combined acquisition of transmission rights illegally restricts competition with private counterparts and does not succeed in achieving compensating advantages which can justify an exemption. That was already the second time that the European courts repealed a grant of exemption in favour of the EBU by the EU Commission (Court of First Instance, decision from 11.07.1996, joint cases T-528/93, T-542/93, T-543/93 and T-546/93). Presumably under the pressure of these proceedings, the EBU also admitted as members several private broadcasting stations. German football also raises anti-trust problems in respect of the sale of transmission rights. In 1994 the Bundeskartellamt (Federal Anti-Trust Department) forbid the Deutsche Fußballbund (German Football Association - DFB) from negotiating and concluding contracts on the TV-broadcasting of the UEFA Cup home matches of German clubs (Wirtschaft und Wettbewerb-Entscheidungssammlung zum Kartellrecht [WuWE] D Kart. A2862). The German Federal Court of Justice subsequently approved the interdiction of the Bundeskartellamt (BGH 11.12.1997, WuWE DE-R 17 „Europapokalheimspiele“). Against this background, a new exemption rule was introduced in sec. 31 GWB (Anti-Trust Act). Additionally, as early as 1998, the DFB tried to obtain an exemption from the Commission for its activities in the sales of rights. The Commission doubted the compatibility with the EC treaty and published on 14 September 2004 (Official Journal 2004 C 229/13) a series of required commitments. Should the DFB agree with them in accordance with Art. 9 sec. 1 regulation 1/2003 of 16.12.2002, no violation will be seen unless market surveys suggest a different solution. Until mid-October 2004 interested parties had the possibility to comment on the intended exemption. The anti-trust dispute over selling- and buying cooperations also raised an issue in the most recent debate on the increase of TV and radio licence fees. Mr. Stoiber, prime minister of Bavaria, invited public broadcast stations to reconsider their sports coverage as sports coverage in ARD purportedly causes the highest production costs. The symposium, which is documented in the ZEuP (issue 2/2006), provided the participants with as diverse as possible depiction of the status of the discussion, the affected interests and the expected developments in the sale of sport rights. At the centre of this event was the presentation by Prof. Dr. Andreas Heinemann, anti-trust expert with the University of Lausanne. Additionally, representatives of the concerned sides – the EBU and the private broadcasting stations - were allowed to share their views: Dr. Adrian Fickentscher, Legal Advisor of the EBU, Grand-Saconnex; Dr. Holger Enßlin, lawyer of Premiere, Unterföhring near München; Thomas Graf, lawyer in the Brussels branch of Cleary, Gottlieb, Steen & Hamilton. |
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Date of publication: 27.03.2007 |
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