Case C‑283/11

Sky Österreich GmbH

v

Österreichischer Rundfunk

(Request for a preliminary ruling from the Bundeskommunikationssenat)

(Directive 2010/13/EU — Provision of audiovisual media services — Article 15(6) –Validity — Events of high interest to the public that are subject to exclusive broadcasting rights — Right of access of broadcasters to such events for the purpose of making short news reports — Limitation of possible compensation for the holder of the exclusive right to additional costs incurred in providing such access — Charter of Fundamental Rights of the European Union — Articles 16 and 17 — Proportionality)

Summary — Judgment of the Court (Grand Chamber), 22 January 2013

1.        Questions referred for a preliminary ruling — Reference to the Court — National Court for the purposes of Article 267 TFEU — Definition — Bundeskommunikationssenat — Included

(Art. 267 TFEU)

2.        Fundamental rights — Charter of Fundamental Rights of the European Union — Right to property — Scope — Rights conferring an acquired legal position — Concept — Exclusive broadcasting rights acquired on a contractual basis following the entry into force of Directive 2007/65 — Right to seek compensation exceeding the limit imposed by the directive — Not included

(Charter of Fundamental Rights of the European Union, Art. 17(1); European Parliament and Council Directive 2007/65)

3.        Freedom to provide services — Television broadcasting activities — Directive 2010/13 — Exclusive rights and short news reports — Access rights of broadcasters to events of high importance to the public — Limitation of the freedom to conduct business of holders of exclusive broadcasting rights — Infringement of Article 16 of the Charter of Fundamental Rights of the European Union — No such infringement

(Charter of Fundamental Rights of the European Union, Arts 11, 16 and 52(1); European Parliament and Council Directive 2010/13, Art. 15(6))

1.        See the text of the decision.

(see paras 26-29)

2.        The protection granted by Article 17(1) of the Charter of Fundamental Rights of the European Union does not apply to mere commercial interests or opportunities, the uncertainties of which are part of the very essence of economic activity, but applies to rights with an asset value creating an established legal position under the legal system, enabling the holder to exercise those rights autonomously and for his benefit.

In that regard, exclusive broadcasting rights must not be regarded as constituting mere commercial interests or opportunities, but as having an asset value, since they are granted, on a contractual basis, to broadcasters for consideration, enabling the latter to broadcast certain events on an exclusive basis, thereby precluding other broadcasters from transmitting those events in any way.

However, an economic operator which has acquired exclusive broadcasting rights on a contractual basis following the entry into force, on 11 December 2007, of Directive 2007/65 amending Council Directive 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 cannot, in the light of EU law, rely on an acquired legal position to seek, in infringement of the imperative content of Directive 2007/65, compensation which exceeds the additional costs directly incurred in providing access to the signal. The Member States were already required at that time to transpose that directive, which they were able to do at any point and had to do, in any event, by 19 December 2009 at the latest.

In those circumstances, a holder of exclusive broadcasting rights relating to events of high interest to the public cannot rely on the protection afforded by Article 17(1) of the Charter.

(see paras 34, 35, 38-40)

3.        The validity of Article 15(6) of Directive 2010/13 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services, pursuant to which the proprietor of exclusive broadcasting rights is required to authorise the production of short news reports to any broadcasting organisations established in the Union, without being able to demand financial compensation exceeding the additional costs directly incurred in providing access to the signal, is not affected by Article 16 of the Charter of Fundamental Rights of the European Union.

It is true that Article 15(6) amounts to inference with the freedom to conduct a business of holders of exclusive broadcasting rights.

However, the freedom to conduct business does not constitute an absolute prerogative, but must be viewed in relation to its function in society. That freedom may be subject to a broad range of interventions on the part of public authorities which may limit the exercise of economic activity in the public interest. That circumstance is reflected, inter alia, in the way in which Article 52(1) of the Charter requires the principle of proportionality to be implemented.

In that regard, given, first, the importance of safeguarding the fundamental freedom to receive information and the freedom and pluralism of the media guaranteed by Article 11 of the Charter and, second, the protection of the freedom to conduct a business as guaranteed by Article 16 of the Charter, the EU legislature is entitled to adopt rules such as those laid down in Article 15 of Directive 2010/13, which limit the freedom to conduct a business, and to give priority, in the necessary balancing of the rights and interests at issue, to public access to information over contractual freedom.

In those circumstances, the EU legislature is lawfully entitled to impose limitations on the freedom to conduct a business contained in Article 15(6) of Directive 2010/13 in relation to holders of exclusive broadcasting rights and to consider that the disadvantages resulting from that provision are not disproportionate in the light of the aims which it pursues and are such as to ensure a fair balance between the various rights and fundamental freedoms at issue.

(see paras 44-47, 66-68, operative part)