EU Adviser Vouches for Free Televising of Soccer

     (CN) – The World Cup finals are events of “major importance for society” and should be broadcast on open television for all, an adviser to EU’s high court said Wednesday.
     Belgium and the United Kingdom listed the World Cup and European Football Championship finals as important events under an EU law that allows member states to deny the sale of exclusive broadcasting rights if it would deprive viewership to a substantial portion of the public. Both countries submitted their lists to the European Commission for approval.
     After the commission gave them the go-ahead to force free televised soccer matches, World Cup organizer Federation Internationale de Football Association (FIFA) and the Union of European Football Associations (UEFA) – which organizes the Euro finals – filed objections.
     They said the commission could not approve of “non-prime” games, since a large portion of their revenue comes from the sale of exclusive TV deals.
     But the General Court dismissed the suit in 2011, saying no one can predict which individual match of a series will ultimately be important.
     On appeal to the Court of Justice in Luxembourg, FIFA and UEFA said that the commission infringed on their property rights and exceeded its authority in forcing the free broadcast of all soccer matches on Belgium and the U.K. lists.
     Advocate General Niilo Jaaskinen recommended dismissing the appeal Wednesday. Member states alone are responsible to decide whether a broadcast is of national importance under EU broadcast laws, the 25-page opinion states.
     “The member states have a certain freedom of action in choosing the measures which they consider best suited to achieving – in the context of their distinctive national, cultural, and social characteristics – the result prescribed by that directive,” Jaaskinen wrote. “The directive also sets out … certain criteria which must be taken into account in classifying an event as being of major importance in order to include it on the national list. However, those criteria are rather of an axiological nature, reflecting the specific traditions and needs of the population of the member state at issue.”
     It is up to the commission to check the lists for a “manifest error of assessment,” Jaaskinen added.
     “Consequently, the commission is required, above all, to check the procedure for drawing up national lists in the light of the criteria of transparency and clarity,” the opinion states. “Moreover, the commission is required to ensure that the national lists do not provide for a greater derogation from fundamental freedoms than that accepted by the European Union legislature when it [the broadcast law]. Likewise, the commission must check the national lists from the perspective of general principles, such as non discrimination on grounds of nationality. However, it is clear, in my view, that the commission’s review must be objective in nature and limited in scope.”
     The European Parliament considered the free access to major events to be a matter of priority when it first drafted the law in 1989, Jaaskinen said, noting that the approval scheme survived modernization of the law in 2007.
     The advocate general also rejected the footballers’ argument that forcing the free broadcast of soccer matches infringes on their property rights, since neither EU law nor the national laws of Belgium and the United Kingdom define whether the broadcast of sports events qualifies as property – as is the case in the U.S. and other European countries.
     “It must be recalled that, as the court ruled in Football Association Premier League and Others, sporting events, including football matches, cannot be regarded as intellectual creations and those events cannot be protected under copyright. It is, moreover, undisputed that European Union law does not protect them on any other basis in the field of intellectual property,” Jaaskinen wrote.
     “It seems to me that the European Union legislature is justified in imposing limitations or restrictions on the right to property invoked by UEFA and by FIFA, either on the basis of the fundamental rights of others, such as the right to information, or on the basis of the public interest,” he added. “Moreover, I note that the right acknowledged in the present instance is far from an essential concept of the right to property covered by protection from legislative interventions. According to the case-law of the court, even where intellectual property rights are recognized, the right holders concerned are not guaranteed the opportunity to demand the highest possible remuneration. Furthermore, inasmuch as the right whose existence is claimed by UEFA and FIFA is defined neither in national law nor in European Union law, its field of application depends, for its very existence, on the provisions setting out its limits, such as [the EU broadcast law].
     “Consequently, the assessment of the European Union legislature carried out in the context of [the law], according to which the exclusivity of the right of the organizer of a sporting event may be limited, does not constitute, in my view, an obstacle to the peaceful enjoyment of possessions or an unlawful control of their use,” Jaaskinen concluded.
     The advocate general’s opinion is not binding on the Court of Justice, which will now begin deliberations on the case to render its verdict at a later date.

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