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EU: No more exclusive territory rights

February 3, 2011

The European Court of Justice has been advised that BSkyB (and other pay operators across Europe) or rights holders cannot stop pubs (or anyone else) subscribing to foreign TV channels no matter they may carry programmes that another broadcaster has the domestic rights to.

The immediate implication is that BSkyB and the English Premier League (EPL) will fail in its attempt to get a European level ruling banning UK pubs from showing EPL games carried on foreign satellite sports channels. A non-binding opinion from Advocate Juliane Kokott to the European Court of Justice (ECJ) said a block breached EU laws. It is very rare for the ECJ to go against the Advocate’s advice.

The specific case involves Portsmouth pub landlady Karen Murphy, who was fined in the English court for using Greek decoders. Her lawyers had argued the EU single market should let her use any European provider.

The case at the European Court of Justice (ECJ) has been about whether a rights holder such as the Premier League can license its content on a country-by-country basis. If the Court agrees with the Advocate, then selling sport, movies, or any other content, on an exclusive territory-by-territory basis within the EU may no longer be possible.

“The exclusivity agreement relating to transmission of football matches are contrary to European Union law,” she said in her opinion.

“(The) exclusivity rights in question have the effect of partitioning the internal market into quite separate national markets, something which constitutes a serious impairment of the freedom to provide services.”

Ms Murphy had been convicted for using the cheaper Greek satellite receiver to show top flight football in her pub.

An enforcement company working on behalf of the EPL brought the prosecution saying only Sky TV had exclusive rights to show its games in the UK.

She had to pay nearly £8,000 (€9,280) in fines and costs.

The EPL has said it will consider the recommendation carefully but warned the ECJ should be in the business of upholding the law, not changing it.

BSkyB Chief Operating Officer Mike Darcey was unwillingly to comment on the detail of the Advocate’s advice, but  said that “what matters is the Court of Justice decision.”

Emma McClarkin MEP, Conservative sports spokesman in the European Parliament, warned: “This opinion is far more complicated than a simple David versus Goliath battle. Money generated from television rights to sports are funneled back into grassroots development, particularly in cricket and rugby.

“These are national football leagues that are being broadcast, and they should be subjected to national territorial rights agreements. The European Commission has made it clear that sport is a separate and specific area, and the court has failed to recognise the specificity of sport. This could have consequences on the quality of national sport broadcasting.”

It was pressure from Brussels which forced the Premier League to offer its live matches to more then one broadcaster, and packages were subsequently taken up by Setanta, and by ESPN.

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