EU ruling confirms WorldCup and Euros should be screened for free

Lawyers Louisa Penny, Robert Vidal

EU Court confirms that the Football World Cup and European Championships should be shown for free in the UK

The General Court has dismissed actions from UEFA and FIFA (the "Rights Holders") seeking the annulment of two European Commission decisions approving UK and Belgian rules that the final tournament of the FIFA World Cup (the "World Cup") and the UEFA European Football Championship (the "Euros") must be broadcast on free to air television.  The result of the Court's ruling is that Member States retain discretion to decide which sporting events are of major importance to society and which therefore can be prohibited from being shown on pay television.

Background

Under EU audiovisual legislation, national governments are entitled to draw up lists of sporting competitions to ensure certain events commonly known as the “crown jewels" (for example the Olympics) are aired on free television to be enjoyed by 95% of the population.  The Commission is obliged to approve these lists with a formal decision.  In June 2007, the Commission approved Belgium's list, which included all of the World Cup matches and, in October 2007, the UK's list of "crown jewels", including all matches in the Euros and the World Cup, was also approved. In February 2008, the Rights Holders appealed, seeking an annulment of the Commission's decisions.  The Rights Holders argued that not all of the matches were sufficiently important to UK or Belgian society to be subject to "unlimited public access".  For example, some EU countries like Austria, France and Italy only consider certain matches to be sufficiently important to be included (for example, those involving the national team, the opening match, semi-finals and final).

The General Court's Judgment

The General Court found on 17 February 2011 that the Commission had acted correctly in approving the lists of events for both the UK and Belgium. It ruled that the World Cup and the Euros may each be considered to be "single events" for the purposes of the list, rather than a series of individual games, and it is not possible to decide in advance which matches may be decisive in determining the national team's advancement through the tournaments.  This would justify a Member State's decision to conclude that all matches are of major importance to society and should be broadcast on free to air television. In addition, in the absence of harmonisation, Member States may have opposing views in relation to which matches are of major importance and these different approaches remain compatible with EU legislation.

Implications

Following the ruling, FIFA and UEFA have two months to appeal on points of law to the European Court of Justice. It may also be possible for the parties to challenge the Member States' decisions in national courts, on the grounds of a lack of transparency in the process by which the national governments decided which sports should be included on the list.  In the meantime, UK consumers will be able to watch all 64 matches in the final of the World Cup and all 31 matches of the Euros on free to air television. 

This will be a blow to the Rights Holders as, at present, the BBC and ITV collectively bid for the rights to broadcast all the matches, which, the Rights Holders argue, has made them dominant in the market for the acquisition of those rights and as a result reduces the price that they are willing to pay. Pay TV providers like Sky and ESPN will similarly be annoyed as they will not be able to cash in on these football tournaments by acquiring rights to broadcast other games and charging UK consumers to view the matches. Whether Pay TV providers will choose to bid for the rights after the digital switchover which will bring Freeview to most of the UK population remains to be seen, but one thing is certain; even if they do acquire the rights to broadcast the World Cup or the Euros, while these tournaments are considered to be crown jewels, all games must be broadcast on free TV to the UK public.