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What is the obligation imposed on states other than the listing state?

It is plain that it is not possible for a Member State acting unilaterally to achieve the objectives foreseen by the Directive. Its aspirations to secure its citizens’ access to major events would be thwarted if rights were purchased on an exclusive basis by a broadcaster based in another Member State. Cooperation across borders is required. So Article 14(3) of Directive 2010/13 provides that Member States shall take steps to ensure that broadcasters under their jurisdiction do not exercise exclusive rights which they have purchased in such a way that a substantial proportion of the public in another Member State is deprived of the possibility of following events designated by that other Member State in accordance with Article 14.

This is necessarily a mandatory rather than a voluntary provision as far as Member State authorities are concerned; were it otherwise, one state’s choices would be readily undermined by another’s lack of concern in so far as broadcasters established in the latter state have acquired rights ‘listed’ by the former state.

But here too the question arises of what this entails. What level of intrusion into the autonomy of the right holder is envisaged in order to secure the position of a substantial proportion of the viewing public in another Member State? Here too neither the Directive nor the Court of Justice offer anything usefully more detailed.

The decision of the UK House of Lords in R v Independent Television Commission, ex parte TV Danmark 1 Ltd is not authoritative as a matter of EU law, but offers insight into the interpretative choices at stake.[1] [2] TV Danmark, a satellite television company established in England but targeting the Danish market, had acquired exclusive rights to broadcast World Cup football matches of the Danish national team, which were events that Denmark had chosen to ‘list’ under the Directive. TV Danmark had bought these rights on an exclusive basis after a bidding process in which they had, as part of a (commercially familiar) strategy to secure a presence in the market, offered a higher price than Danish public broadcasters, who would have been able to broadcast the games to at least 90 per cent of the Danish population, the threshold laid down under Danish law and which TV Danmark, with a relatively small pool of subscribers, would not be able to cross. This was, then, exactly the situation envisaged by what is now Article 14 of Directive 2010/13, although the dispute in fact had the earlier, though materially identical, legislative regime as its background.^

Under the UK rules in force, which implemented the predecessor to what is today Directive 2010/13, TV Danmark could show the matches only after securing the prior consent of the Independent Television Commission (ITC).i9fi So the question in law was how, as a matter of EU law, the ITC should deal with the matter. The House of Lords took the view that the Directive’s instruction to prevent the exercise by broadcasters of exclusive rights in such a way that a substantial proportion of the population in another Member State would be deprived of the possibility of watching a listed event on television meant that it was not mandatory for the ITC to grant its consent to a broadcaster in TV Danmark’s position. This, in short, lends a higher priority to the Danish choice about the importance of access to viewing the matches and correspondingly less to the vigour of market forces and the interests of an undertaking that had won the rights in question. Lord

Hoffman, who gave the main speech in the House of Lords, regarded the Directive as having carved out a defined circumstance in which competition in the market and unhampered enjoyment of purchased contractual rights would be restrained. Lord Hoffman assumed that the point of the regime is that an exclusive right holder must in such circumstances always make an offer of a share in the rights to a free- to-air broadcaster—though plainly this will greatly affect the price which a channel in TV Danmark’s position would be prepared to bid for the rights in the first place.

The Court ofJustice was not permitted the opportunity to explore this intriguing terrain. The House of Lords made no preliminary reference to Luxembourg. For its part the Commission did no more than briefly mention the case in its fourth report on the application of Directive 89/552 in the context of a broad comment that application of its Article 3a in the period under review had been ‘satisfactory’,[3] [4] [5] [6] [7] a bland approval repeated in the Discussion Paper released in April 2003 as part of the Commission’s consultation exercise on the reform of the Directive. 19® At that point the trail goes cold. The true legal intent behind Article 14 of Directive 2010/13 is left unaddressed in the Commission’s subsequently produced abundant documentation on the regime, including in the most recent and strikingly anodyne Commission report on the operation of the regime, published in 20 1 2.199 But one can understand reluctance to get involved in such obscure material. It is the Directive itself, not the Commission, that is the problem.

  • [1] [2001] 1 WLR 1604. 195 Audiovisual Media Services Directive (n 174).
  • [2] 196 The ITC’s responsibilities in the field are today exercised by OFCOM (n 192).
  • [3] COM (2002) 778, p 10.
  • [4] Available via accessed 29 November 2016.
  • [5] COM (2012) 203.
  • [6] Audiovisual Media Services Directive (n 174) Art 15(5). The rules do not cover radio broadcasts;cf E001313/12 (written question) [2013] OJ C96E/160.
  • [7] Audiovisual Media Services Directive (n 174) Art 15(6).
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