Court of Justice of the European Communities (including Court of First Instance Decisions)

Applicants

Background to the proceedings

(a) the joint acquisition of sport television rights;

(b) the sharing of the jointly acquired sport television rights;

(c) the exchange of the signal for sporting events;

(d) the sub-licensing scheme;

(e) the sub-licensing rules.

'[T]he EBU and its members undertake to grant non-member broadcasters extensive access to Eurovision sports programmes the rights for which have been acquired on an exclusive basis through collective negotiations. ... [That scheme] grants live and deferred transmission rights to third parties of jointly acquired Eurovision sports rights. In particular the non-EBU members have significant access to the unused rights, i.e. for the transmission of sporting events which are not transmitted by, or of which only a minor part are transmitted by, an EBU member. The terms and conditions of access are freely negotiated between theEBU (for transnational channels), or the member(s) in the country concerned (for national channels), and the non-member ...' (paragraph 28 of the contested decision).

Procedure and forms of order sought

- annul the contested decision;

- order the Commission to pay the costs;

- order the EBU to pay the costs of its intervention.

- order the Commission to add several documents to the file;

- annul the contested decision;

- order the Commission to pay the costs;

- order the interveners to pay the costs of their interventions.

- annul the contested decision;

- order the Commission to pay the costs.

- order the Commission to produce certain documents;

- annul the contested decision;

- order the Commission to pay the costs;

- order the EBU to pay the costs of its intervention.

- dismiss the applications;

- order the applicants to pay the costs.

- annul the contested decision;

- order the Commission to pay the costs, including those of the intervener.

- dismiss the applications;

- order the applicants to bear the costs of their interventions.

- dismiss the application;

- order the applicants to bear the costs of their intervention.

Law

Preliminary observations

The fourth plea, concerning infringement of Article 81(3) EC as regards the criterion relating to the absence of the possibility of eliminating competition in respect of a substantial part of the products in question

Arguments of the parties

Findings of the Court

'4.1. Product market

The EBU considers that the relevant market for the assessment of the case is the market for the acquisition of the television rights to important sporting events in all disciplines of sport, irrespective of the national or international character of the event. The EBU is only active in the acquisition of television rights to sporting events of pan-European interest.

The Commission shares the EBU's view that sports programmes have particular characteristics; they are able to achieve high viewing figures and reach an identifiable audience, which is a special target for certain important advertisers.

However, contrary to what the EBU suggests, the attraction of sports programmes and hence the level of competition for the television rights varies according to the type of sport and the type of event. Mass sports like football, tennis or motor-racing generally attract large audiences, the preferences varying from country to country. By contrast, minority sports achieve very low ratings. International events tend to be more attractive for the audience in a given country than national ones, provided the national team or a national champion is involved, while international events in which no national champion or team is participating can often be of little interest. In the last 10 years, with increased competition in the television markets, the prices for television rights to sporting events have increased considerably ...; this is particularly true with regard to outstanding international events such as the Football World Cup or the Olympic Games.

The preferences of viewers determine the value of a programme to advertisers and pay-TV broadcasters. ... However, if we observe that sports broadcasts achieve the same or similar sized audiences whether or not they are competing with simultaneously broadcast sporting events, there is strong evidence that those events could determine the subscribers' or advertisers' choice of a certain broadcaster.

Indeed, data on viewer behaviour, among major sporting events, show that for at least some sporting events which have been analysed, such as the summer Olympics, the winter Olympics, the Wimbledon Finals and the Football World Cup, viewing behaviour does not appear to be influenced by the coincidence of other major sporting events being broadcast simultaneously, or nearly simultaneously. That is, viewing figures for the major sporting events appear to be largely independent of whatever other major sports are broadcast at a similar time. Therefore, the offer of such sporting events could influence the subscribers or advertisers to such an extent that the broadcaster would be inclined to pay much higher prices.

In conclusion, the Commission's investigation shows that the market definition proposed by the EBU is too large and that there is a strong likelihood that there are separate markets for the acquisition of some major sporting events, most of them international.

However, it is not necessary for the purposes of this case to exactly define the relevant product markets. Taking into account the present structure of the market and the sub-licensing ... rules granting access to non-EBU members to Eurovision sport programmes, these agreements do not raise competition concerns, even on the basis of markets for the acquisition of particular sporting events such as the summer Olympics.

...

4.2. Geographic market

Some sporting events rights are acquired on an exclusive basis for the whole European territory and, regardless of the technical means of transmission, are to be resold thereafter per country, [while] others are acquired on a national basis. The kind of major sporting event rights for which the EBU bids, which have a pan-European interest from the viewers' perspective, such as the Olympic Games, will normally fall within the first category of European licences.

Nevertheless, irrespective of the scope of the licences ... the preferences of viewers can significantly vary from country to country depending on the type of sport and the type of event and, therefore, the conditions of competition for the television rights can vary accordingly.

With regard to the downstream markets affected by the present notification, the free-to-air and pay-TV broadcasting markets should be considered, largely for linguistic, cultural, licensing and copyright reasons, generally national or extending to single linguistic areas.

However, for the purposes of this case it is not necessary to define the relevant geographic market exactly. Taking into account the present structure of the market and the sub-licensing rules granting non-EBU members access to the Eurovision sport programmes, these agreements do not raise competition concerns even on the basis of national markets for the acquisition of sports rights, nor for the downstream markets of free-to-air and pay-TV broadcasting.'

'To address these concerns the EBU has modified the notified agreements to include a set of sub-licensing rules which make sure that non-EBU members have extensive access to the Eurovision sports rights. This counterbalances the restrictive effects of the joint acquisition of the sports rights. The schemes will provide extensive live and deferred transmission access for non-members on reasonable terms.'