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Sporting Jewels: ‘Protected’ or ‘Listed’ Events

Legislation governing ‘protected’ or ‘listed’ events counts as one of the most misunderstood of all the EU’s interventions into sport. It is, moreover, a misunderstanding that is in part a direct result of the obscurity of the rules, judged on both their detail and their purpose. This is another example of how concern for the operation of the broadcasting sector has incidental effects for the autonomy of sport, but in this instance it is striking how sport finds that its commercial ambitions are constrained under a rather obscurely defined notion of rights of public access to the jewels of the sporting calendar.

The legislative framework

The relevant rules are contained in the codified version of the Audiovisual Media Services Directive, Directive 20 1 0/13.[1] [2] [3] This is the significantly amended successor to the original EU regime covering the sector, introduced in 1989 by the so- called ‘Television without Frontiers’ Directive,^ and the subsequent re-naming of the measure as the Audiovisual Media Services Directive reflects both the widening of its scope beyond television broadcasting and more generally it provides a good example of the law panting in pursuit of fast-developing technology.^6

The provisions of most direct significance to sport appear as Articles 14 and 15 in Chapter V of Directive 2010/13, entitled ‘Provisions concerning exclusive rights’ and ‘short news reports in television broadcasting’. Their broad purpose is to place two distinct types of limitation on the autonomy of a holder of exclusive broadcasting rights and, in particular, to soften that exclusivity in favour of granting wider access. It is, however, important to appreciate just how and why the EU claims authority to address such matters. Articles 14 and 15 are simply part of the wider sweep of harmonized rules governing the integration and regulation of broadcasting markets across the EU. The driving concern of the EU’s legislative acquis in this area is the establishment of the internal market. Directive 2010/13 is based on Articles 53(1) and 62 TFEU, the Treaty provisions governing the coordination of laws in the establishment and services sectors: its predecessors too have been of precisely this type. They are accordingly measures of market integration. The rationale for EU intervention holds that the national regulation of broadcasting markets took a variety of forms and shapes, with the result that the construction of a common commercial strategy apt to realize the benefits of the EU’s internal market was hampered. Therefore the EU should intervene to replace that regulatory diversity with its own common rules.[4] [5] [6] This foundation of regulatory homogeneity permits the pursuit of an integrated trading strategy across the whole territory of the EU, while also locating at EU level, in replacement for national level, the responsibility to select the style and type of regulation appropriate (in common) for the sector in question. So, in short, the EU’s constitutional basis for asserting authority over the autonomy of the holder of exclusive rights to broadcast sporting events is rooted in the fact that, in the past, national rules in this vein were different in scope and nature, to the detriment of the EU’s internal market. Articles 14 and 15 of Directive 2010/13 are just part of a much broader framework aimed at achieving an integrated market for broadcasting in the EU, based on defined allocation of responsibilities between states from which signals are sent and those where they are received, and including detailed rules on matters such as the quality and quantity of advertising, product placement, the promotion of European works, and the protection of minorsTh8 The EU does not regulate the content and method of supply of broadcasting services in general or the exercise of exclusive rights in particular for their own sake, but rather as part of its mission to achieve a market without internal frontiers in the EU for (inter alia) broadcasting, but that quest leads it unavoidably to become a site where sensitive regulatory choices about the sector come to be taken.

This is the logic behind EU legislative harmonization generally. The adoption of common rules serves the internal market while also meeting the regulatory expectations previously pursued (in different ways) at national level and mandated at EU level by horizontal Treaty provisions such as Article 12 on consumer protection and Article 167(4) on cultural diversity and the functionally parallel commitments found in Articles 38 and 22 of the Charter of Fundamental Rights of the European Union, respectively. This is how pursuit of trade integration spills over into other sectors. Because states have taken a stance on patterns of intervention designed to limit market freedoms, the EU, devising a regulatory framework for a broader European market, must respond by making its own choices about the content of the regime that shall be adopted at European levelTh9 In Directive 2010/13 this phenomenon is seen in the context of sport and culture, in respect of which the EU lacks any general legislative competence, but which it affects as a result of the wide-ranging functional impact of the programme of harmonization and coordination of laws in the service of building an internal market.

  • [1] Directive 2010/13/EU of 10 March 2010 on the coordination of certain provisions laid downby law, regulation or administrative action in Member States concerning the provision of audiovisualmedia services [2010] OJ L95/1 (Audiovisual Media Services Directive).
  • [2] Directive 89/552/EEC of 3 October 1989 on the coordination of certain provisions laid downby law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities [1989] OJ L298/23, amended by Directive 97/36/EC of 30 June 1997 amendingDirective 89/552 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities [1997] OJL202/60 and Directive 2007/65/EC of 11 December 2007 amending Directive 89/552 on the coordination of certain provisions laid down by law, regulation or administrative action in Member Statesconcerning the pursuit of television broadcasting activities [2007] OJ L332/27.
  • [3] For a summary of the pattern of revision, see P Valcke and K Lefever, Media Law in the EU(Wouters 2012) 48-50.
  • [4] This theme is readily visible in the Recitals to Directive 2010/13 (n 174), eg 11, 24, and 50,though it is even more explicit in the original Directive 89/552 (n 175): ‘Whereas the laws, regulations and administrative measures in Member States concerning the pursuit of activities as televisionbroadcasters and cable operators contain disparities, some of which may impede the free movement ofbroadcasts within the Community and may distort competition within the common market’.
  • [5] In detail, Valcke and Lefever (n 176) ch 3, section 1.
  • [6] See Weatherill (n 33) ch 13.
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