European Union: Advocate - General Issues Opinion On Compensation For Sports Extracts In News Reports

On 12 June 2012, Advocate-General Yves Bot rendered his Opinion in the case of Sky Österreich GmbH v Österreichischer Rundfunk, which concerned the limitation of compensation between TV broadcasters for the use of short extracts of exclusive sports content such as football matches.

At the heart of the dispute was Sky Austria's exclusive acquisition of the rights to broadcast within Austria certain Europa League football matches for the 2009-2010 and 2011-2012 seasons. To obtain these exclusive rights, Sky Austria paid license and production costs reaching several million euros.

Under the provisions of the EU's Audiovisual Media Services Directive ("AVSD"), TV broadcasters are effectively allowed to acquire exclusive rights to such major sporting events provided that they allow other broadcasters in the EU (including competitors) to use short extracts thereof for the purposes of their own news reports. To that effect, exclusive content broadcasters must grant other broadcasters access to their signal. A compensation for that use may also be possible under Article 15(6) of the AVSD if it does not exceed the additional costs directly incurred as a result of the granting of that access.

In the present case, the ORF (the Austrian public broadcaster) had requested from the Austrian regulatory authority for communications, KommAustria, the right to transmit short extracts of competitor Sky Austria's Europa League games for its news reports. In December 2010, KommAustria decided that Sky Austria should indeed grant ORF the right to transmit short extracts of the games in question. On the facts, ORF was not required to pay any compensation to Sky Austria as the costs for access to the satellite signal equalled zero.

Sky Austria was of the view that the systematic prohibition of the payment of compensation to exclusive rights holders for short extracts was unfair and was putting them at a disadvantage. The dispute was brought before the "Bundeskommunikationssenat" (the Federal Communications Tribunal) which subsequently raised a preliminary question with the Court of Justice of the European Union (the "ECJ") on the compliance of the Directive with fundamental rights. In particular, the issue was whether the limits to compensation were justified in the light of the freedom to conduct a business and the right of property under the EU Charter of Fundamental Rights (the "EUCFR") and the European Convention on Human Rights (the "ECHR").

In his Opinion, AG Bot recognised that the freedom to conduct a business and the right of property were guaranteed by the EUCFR and the ECHR, and that Article 15(6) seemed to interfere with these fundamental rights, as exclusive rights holders such as Sky Austria could no longer freely exercise their economic activity related thereto. AG Bot did, however, recall that, in line with previous EU case law, these two fundamental rights were not absolute and that, as such, they should be viewed within their social function, i.e. restrictions could be imposed on these two fundamental rights if these restrictions corresponded to other EU objectives of general interest and did not constitute a disproportionate interference.

In the present case, AG Bot considered that the interference was justified and Article 15(6) of the AVSD was not contrary to EU fundamental rights law. A fair balance had been found between, on the one hand, the freedom to conduct a business and the right to property and, on the other hand, the freedom to receive information and media pluralism. In addition, AG Bot observed that the interference was greatly mitigated by certain conditions and limits attached to the right to transmit short extracts during news reports. These include extract duration limits, obligations to identify the source of the extracts, and the requirement that the events being reported are of "high interest to the public".

Finally, AG Bot also addressed the positions taken by both the "Verfassungsgerichtshof" (the Austrian Constitutional Court) and the "Bundesverfassungsgericht" (the German Federal Constitutional Court), which had taken the view that the right to use short extracts in news reports should give rise to the payment of a reasonable remuneration in view of the costs of acquiring the exclusive rights. According to AG Bot, "the balancing of the various fundamental rights concerned does not necessarily call for the same response at a national level as at an EU level". The underlying reason behind this is that concerns around the completion of the EU internal market would have an impact on the compromise between the free grant of rights to short extracts and the financial contribution of secondary broadcasters to the costs of acquiring exclusive rights of transmission.

It should be recalled that while the Opinion of the Advocate-General is not binding on the ECJ, it is followed in the majority of cases.

AG Bot's Opinion can be accessed at:

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions