The European Court of Justice (ECJ) was advised yesterday (3 February) to rule that EU law does not prohibit pubs in Britain from showing live Premier League matches from foreign broadcasters.
ECJ Advocate-General Juliane Kokott issued a non-binding opinion arguing that banning foreign broadcasts breached EU laws governing the bloc's single market.
Karen Murphy, landlady of the Red, White and Blue pub in the southern English coastal city of Portsmouth, uses a Greek decoder card to show live Premier League matches broadcast by Hellenic company Nova.
A subscription to Nova is much cheaper than a subscription to Sky or ESPN, which hold exclusive broadcast rights to live Premier League football in the UK (see 'Background').
The 'Football Association Premier League Ltd.' (FAPL), a private company set up to represent the broadcasting interests of the top tier's 20 clubs, sells exclusive TV rights to broadcasters across Europe on a territory-by-territory basis.
Enforcers acting for FAPL prosecuted Murphy for showing matches on Nova in her pub. She was convicted – and fined £8,000 plus costs – on the basis that only games broadcast by Sky or ESPN could be shown in the UK.
Murphy subsequently decided to take her case to the European court.
Kokott's opinion sought to address the issue of whether a rights holder such as the Premier League can license its content on a country-by-country basis, allowing it to fully maximise the value of its rights, as it currently does.
Territorial exclusivity agreements 'contrary to European law'
"Territorial exclusivity agreements relating to transmission of football matches are contrary to European Union law," reads Kokott's opinion.
"[The] exclusivity rights in question have the effect of partitioning the internal market into quite separate national markets, something which constitutes a serious impairment of the freedom to provide services," Kokott said.
"The freedom to provide services is also in line with the Satellite and Cable Directive and with European competition law. Equally, neither does the Conditional Access Directive constitute a barrier to the use of foreign decoder cards," she decided.
Kokott rejected a copyright argument put forward by the Premier League that it held exclusive rights to matches broadcast to the public. "There are no comprehensive rights which protect the communication of a broadcast to the public where no entrance fee is charged," she said.
The Premier League reacted to the advocate-general's opinion by declaring that if the European Commission wanted to create a pan-European licensing model for sports, film and music then it must go through the proper consultative and legislative processes rather than use the courts.
"The ECJ is there to enforce the law, not change it," the Premier League stated.
Kokott's opinion is not binding on the Court of Justice and its judges will now consider their own verdict in "complete independence," said the ECJ in a statement. "Judgementwill be given at a later date," the court said.
The Premier League also urged the ECJ, which is expected to rule on the case in the next few months, to do so in a manner that would "help promote, celebrate and develop the cultural differences within the EU".
Judges typically back the advocate-general in the vast majority of cases before the ECJ.
If they back Kokott this time, soon it may no longer be possible to sell live sport or movies on an exclusive country-by-country basis within the EU.