European Court Of Justice Finds Absolute Territorial Exclusivity In Broadcasting Of Premier League Matches Contrary To TFEU

On 4 October 2011, the European Court of Justice ("ECJ") gave judgment in joined cases C-403/08 Football Association Premier League Ltd, NetMed Hellas SA, Multichoice Hellas SA v QC Leisure, David Richardson, AV Station plc, Malcolm Chamberlain, Michael Madden, SR Leisure Ltd, Philip George Charles Houghton and Derek Owen and C-429/08 Karen Murphy v Media Protection Services Ltd (the "Judgment"). The Judgment gives guidance on applicable rules on conditional access; free movement of goods and services; competition law and copyright law.

The cases at hand are two separate proceedings before UK courts. The Football Association Premier League ("FAPL"), which is the governing body of the English football Premier League, grants broadcasters an exclusive live broadcasting right for Premier League matches on a territorial basis. In order to safeguard the exclusive rights of the other licensees, each licensee is required to take measures to ensure that its broadcasts cannot be viewed outside its allocated territory. Broadcasters are therefore required to encrypt their signals so that they can only be received and viewed using a decoder card. Broadcasters are also expected to prevent these cards from being supplied outside their respective territories. The UK proceedings concerned an attempt to circumvent this exclusivity, with undertakings in the UK having imported foreign (in this case, Greek) decoder cards and satellite broadcasting equipment and having offered them to pubs in the UK at more favourable prices than those offered by the broadcaster with territorial exclusivity for the UK. The undertakings involved were prosecuted for breach of a UK copyright law that makes it a criminal offence, or a breach of copyright, to import decoder cards. At the same time, FAPL brought several civil-law actions concerning the use of foreign decoders.

Illicit devices under Conditional Access Directive

The ECJ stated that the foreign decoders used in the cases at hand do not qualify as "illicit devices" under the Conditional Access Directive (98/84/EC) because these decoders have been manufactured or placed on the market with the authorisation of the service provider and do not allow access free of charge to protected services.

Moreover, the ECJ held that the Conditional Access Directive does not preclude national legislation preventing the use of foreign decoding devices because such devices fall outside the scope of the Conditional Access Directive which...