This
week, the CJEU handed down its preliminary
ruling in the Sky Österreich
case, concerning the question whether Sky had to grant the Austrian public
broadcasting service the right to transmit short news reports on Europa League matches
involving Austrian teams, without receiving any compensation in return. In line
with A-G Bot's opinion (on which we reported in an earlier
post on this blog), the Court held that:
'Consideration
of the question raised has not disclosed any factor of such a kind as to affect
the validity of Article 15(6) of Directive 2010/13/EU of the European
Parliament and of the Council of 10 March 2010 on the coordination of certain
provisions laid down by law, regulation or administrative action in Member
States concerning the provision of audiovisual media services (Audiovisual
Media Services Directive).'
In
other words, Sky's rights under the EU Charter of Fundamental Rights do not
preclude the compensation which holders of exclusive broadcasting rights may
seek from other channels for short news reports from being limited to technical
costs.
As
regards the right to protection of property, the Court is of the opinion
that Sky cannot rely on this right in the present case. Although exclusive
contractual broadcasting rights have asset value, 'when Sky acquired those
rights by means of a contract (in August 2009), EU law already provided for the
right to make short news reports, while limiting the amount of compensation to
the additional costs directly incurred in providing access to the signal'.
Following
its earlier case law, furthermore, the Court holds that the freedom to
conduct a business, on which Sky sought to rely, 'is not absolute, but must
be viewed in relation to its social function' (referring to Joined Cases C‑184/02
and C‑223/02 Spain and Finland v
Parliament and Council [2004] ECR I‑7789, paragraphs 51 and 52, and Case C‑544/10
Deutsches Weintor [2012] ECR I‑0000,
paragraph 54). In the present case, restrictions on the freedom to conduct a business are justified in light of the public interest, in particular the fundamental freedom to receive information and the promotion of media pluralism. According to the Court, the contested legislation strikes a fair balance between the rights and freedoms at issue.
See the CJEU's press release for a summary of the judgment.
