European Union: European Court Rules Against FA Premier League Ban On Foreign Decoders

Last Updated: 22 November 2011
Article by Rachel Iley and Jeremy Harris

On 4 October, the Court of Justice of the European Union (the "European Court") ruled that national legislation which prohibits the import, sale or use of foreign decoder cards is contrary to the freedom to provide services and cannot be justified. A system of exclusive licences is also contrary to EU competition law if the licence agreements prohibit the supply of decoder cards to television viewers who wish to watch the broadcast outside the Member State for which the licence is granted.

However, whilst matches are not 'works' enjoying protection under the Copyright Directive, copyright protection does extend to the opening video sequence, the Premier League anthem, pre-recorded films showing highlights of recent Premier League matches and various graphics. As such, the transmission of broadcasts of these protected works in a pub would constitute "communication to the public" within the meaning of the Copyright Directive, for which authorisation of the author of the works would be necessary.

The preliminary ruling of the European Court addresses important questions about free movement, competition law and copyright.

What is the background to this ruling?

The preliminary ruling came in response to a request by the High Court of England and Wales for clarity on the interpretation of EU law. The High Court referred a number of legal questions to the European Court about the compatibility of FAPL licensing arrangements with EU law. These arose out of two separate actions involving UK pubs that had sought to use foreign decoder cards to access live English Premier League football matches, thereby circumventing the higher prices charged in the UK for the service. The decoder cards had been issued by a Greek broadcaster to subscribers resident in Greece.

In each case, it was alleged that the actions of the suppliers/publicans breached copyright held by the Football Association Premier League ("FAPL"). FAPL's activities included licensing the broadcasting rights for Premier League matches, as well as organising the filming of matches and transmitting the signal to the broadcasters that have the rights for those matches.

The first case involved a civil action brought by the FAPL against four pub licensees and Greek suppliers of decoders and equipment. They were accused of using/distributing foreign decoder devices giving access to FAPL's services without authorisation, contrary to section 298 Copyright Designs and Patents Act 1998 ("CDPA"). The second case arose from the appeal brought by the landlady of a pub, Karen Murphy, against her conviction under section 297 CDPA. Her offence was to have "dishonestly received a programme included in the broadcasting service provided from a place in the UK with intent to avoid payment of any charge applicable to the reception of the programme".

The defendants claimed that preventing them from using the decoders would restrict the freedom of foreign broadcasters to provide goods or services, contrary to EU law (contained in Articles 34 and 56 of the Treaty on the Functioning of the European Union ("TFEU"). They also claimed that the licence between FAPL and foreign broadcasters infringed the Article 101 TFEU prohibition on anti-competitive agreements insofar as it prevented the broadcasters from supplying decoding devices to those who would use them outside the territory covered by the licence.

The High Court decided to stay both sets of proceedings to refer a number of questions to the European Court for a preliminary ruling on how to interpret EU law. The cases were joined for the purpose of the Court's consideration of these issues and its response.

What did the European Court decide?

The broadcasters' act of transmission

The Court first ruled on a number of questions associated with the broadcasters' transmission of the encrypted broadcasts, the main points of which are summarised below.

  1. Foreign decoder devices could not be considered as "illicit devices" within the meaning of the Conditional Access Directive. Therefore provisions in the Conditional Access Directive permitting Member States to prohibit activities related to the manufacture, sale, possession or use of "illicit devices" did not apply. The decoders had been manufactured and placed on the market with the authorisation of the service provider, did not allow free access to protected services and did not enable users to circumvent technological measures designed to protect the remuneration of those services. Remuneration had been paid in the Member State where the decoder was placed on the market. This even applied where the device had been used in breach of a contractual limitation permitting their use only for private purposes.
  2. National legislation (the CDPA) prohibiting foreign decoding devices from being imported into and sold and used in the UK (and imposing civil and financial sanctions for this) constituted a restriction on the freedom to provide services, which is prohibited by Article 56 TFEU. This had the effect of preventing UK residents from gaining access to the satellite transmission services from broadcasters in another Member State. Such restrictions are only justified when they serve overriding reasons in the public interest, and are suitable for and proportionate to achieving that objective. The European Court did not consider the restriction was necessary to ensure that the holders of intellectual property rights are appropriately remunerated on either of the grounds advanced by FAPL:

    1. The protection of intellectual property. First, FAPL could not claim copyright in the Premier League matches, as they could not be classified as intellectual creations classifiable as works within the meaning of the Copyright Directive. Second, even if national law did confer protection on sporting events, rights holders are only entitled to remuneration that is reasonable in relation to the economic value of the service provided, taking into account e.g. the actual and potential audience. There was nothing to stop the FAPL from asking for an amount that took into account the potential audience outside the Member State of broadcast when negotiating the licence with the Greek broadcasters.
    2. Encouraging the public to attend football stadiums. The European Court considered that the 'closed period' rule which prohibits broadcasting of football matches on Saturday afternoons could be ensured simply by including a contractual restriction on overseas broadcasters requiring them not to broadcast Premier League matches during closed periods.

  3. The grant of exclusive licences for the broadcasting of Premier League matches was not called into question. However, additional restrictions in the licences between FAPL and the broadcasters, obliging broadcasters not to supply decoding devices for use outside their territory constituted a prohibited restriction on competition for the purposes of Article 101 TFEU. Agreements which are aimed at partitioning national markets or which make penetrating national market more difficult must be regarded, in principle, as agreements whose object is to restriction competition. The licences in question were designed to prohibit or limit the cross-border provision of broadcasting services and could not be justified.

Receipt of the broadcasts in the UK

The European Court then turned to consider the rules relating to the use of the broadcasts once they are received and shown e.g. in the pubs in question.

The Court found that FAPL could assert copyright in carious works contained in the broadcasts, namely the opening video sequence, the Premier League anthem, pre-recorded films showing highlights of recent Premier League matches and various graphics. The Court also considered that "communication to the public" (within the meaning of Article 3(1) of the Copyright Directive) should be interpreted as covering transmission of the broadcast works, via a TV screen and speakers, to customers in a pub; the works would be transmitted to an additional public which was not considered by the authors when they authorised the broadcasting of their works. Furthermore, the pub landlord intentionally transmitted the match in order to benefit financially and the communication was therefore of a profit-making nature.


The ruling certainly covers important questions about free movement, competition law and copyright. However, at this stage it seems that it is perhaps not the landmark victory initially suggested - although it will be interesting to see how the High Court interprets the European Court's ruling. The next step is for the High Court to apply the preliminary ruling to the facts of the cases before it.

FAPL (and other similar rights holders) may now be encouraged to reconsider how to license their broadcasting rights to sporting events, possibly moving towards a pan-European model; but concerns have been raised that this might only increase prices for EU subscribers, particularly those located outside the UK.

In any event, it would not take much for the FAPL to alter how it shows matches to ensure that logos, graphics, anthems, pre-recorded material etc. appear throughout the broadcast, thereby attracting copyright protection. One question that remains unclear is whether authorisation would then be necessary even where a commercial licence (i.e. rather than a residential one) had been obtained from the foreign broadcasters, or whether consent needs to be sought in either case.

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