Notice published pursuant to Article 27(4) of Council Regulation (EC) No 1/2003 in Case COMP/C.2/37.214 - Joint selling of the media rights to the German Bundesliga(2004/C 229/04)(Text with EEA relevance)

1. Introduction

(1) On 25 August 1998 , the German Football Federation (Deutsche Fußballbund (DFB)) applied for negative clearance or, failing this, an individual exemption under Article 81(3) of the EC Treaty in respect of the joint selling of television and radio broadcasting rights and rights to other technical forms of exploitation(1) for matches in the first and second national football divisions (Bundesliga and 2. Bundesliga respectively). On 30 October 2003 , pursuant to Article 19(3) of Council Regulation No 17, the Commission announced in a notice in the Official Journal of the European Union its intention to take a favourable view of an amended central marketing system(2); it subsequently received comments from interested third parties.

2. Preliminary Assessment

(2) The Commission informed the DFB and the League Association (Ligaverband) by letter dated 18 June 2004 of its preliminary assessment within the meaning of Article 9(1) of Regulation (EC) No 1/2003.

(3) According to the Commission's preliminary assessment, the problems lie in the transfer of the media rights to the Bundesliga and 2. Bundesliga from the clubs to the League Association and the subsequent central selling. In the selling agreements, the League Association determines the price and the nature and scope of exploitation. Through the agreement on central selling and the subsequent joint selling, the clubs are prevented from dealing independently with television and radio operators and/or sport rights agencies. Competition in the sale of rights is excluded. The clubs are prevented in particular from taking independent commercial decisions about the price or structuring the nature and scope of the rights sale differently from the joint selling system.

(4) In addition, according to the preliminary assessment, central selling has an adverse effect on the downstream relevant television markets and markets in the new media, since the possibility of supplying football content plays an important role in competition between programme suppliers for advertising revenues and subscribers or pay-per-view customers.

3. Commitments

(5) The League Association subsequently confirmed its commitments presented under the previous notification procedure, which take account of the comments submitted under Article 19(3) of Regulation No 17, and are now within the meaning of Article 9(1) of Regulation (EC) 1/2003. The commitments are briefly summarised in what follows and published in full on the website of the Directorate-General for Competition.

(6) The league rights are offered in several packages in a transparent, non-discriminatory procedure. The duration of the agreements concluded with both the agents and the sublicence holders will not exceed three seasons.

(7) Live broadcasts of the Bundesliga and the 2. Bundesliga are offered by the League in particular in two packages, both for free TV and for pay TV programme suppliers. A third package entitles the acquirer of the live broadcast to at least two Bundesliga matches and to deferred highlight first coverage on free TV. A fourth package covers live games of the 2. Bundesliga and the rights to deferred highlight first coverage on free TV. Second and third exploitation rights are offered in a fifth package. Packages 3 to 5 can each be sold to several exploiters.

(8) Package 6 contains the right to broadcast Bundesliga and 2. Bundesliga matches live and/or near-live on the Internet. From 1 July 2006 , the package contains the right to broadcast the matches live and near-live. The League Association will, on every day on which games are held, offer a total of at least 90 minutes live coverage of the matches on the Internet, e.g. in the form of a conference channel. A seventh package comprises deferred highlights coverage. Package 8 contains the right to broadcast Bundesliga and/or 2. Bundesliga matches live and/or near-live and/or after the event on mobile phones. Package 9 confers the right to the deferred broadcast of excerpts from Bundesliga and/or 2. Bundesliga matches on mobile phones.

(9) Every club can sell its home games to a free-TV broadcaster 24 hours after the match for one-off free-TV broadcasting of up to the full match within the EEA.

(10) One and a half hours after the end of a match, every club can exploit a summary of its home and away games of up to 30 minutes on the Internet. From 1 July 2006 , after the end of the match every club can cover its home and away games on its homepage or that of a third party without restriction as to length. Every club can sell the coverage of its home games on mobile phone networks within the EEA to the operators of those networks. Every club can exploit its home games on free-to-air radio after the end of the match without restriction. In the case of live transmissions, exploitation may not exceed 10 minutes per half.

(11) The abovementioned rights may not be sold in such a way that a product can be devised by an exploiter which clashes with the interests of the DFB and the League Association or the acquirers of packages 1 to 9 in having a uniform product and jeopardises the advantages of branding and the one-stop shop.

(12) According to the parties' proposal, unused rights may be exploited by the clubs. However, the League Association remains entitled to parallel, non-exclusive marketing of the corresponding package. This applies when the Association has failed to sell certain rights covered by the joint selling procedure. If, 14 days after the first match day of the football year, no agreement with an exploiter is reached about one of the above packages in accordance with the rights defined therein, the clubs may, from that time until the end of the season, exploit their home games themselves in accordance with the rights covered by the unused exploitation package. Clubs are also entitled to sell rights where the holder of those rights, for no objective reason, fails to use them.

(13) The changes relating to television as presented on the Internet will enter into force on 1 July 2006 . All other changes apply from 1 July 2004 . The transitional stage makes it possible to take gradual account of competition doubts without jeopardising the operation of the Bundesliga and the 2. Bundesliga.

(14) Future licence agreements are not covered by the marketing model presented. A separate examination under Community law cannot be ruled out in this respect, in particular where several centrally marketed packages with exclusive exploitation rights are cumulatively acquired by one exploiter.

4. The Commission's intention

(15) The Commission intends, subject to market testing, to adopt a decision under Article 9(1) of Regulation (EC) 1/2003 declaring the commitments summarised above and published on the Internet on the website of the Directorate-General for Competition to be binding. To this end, it invites interested third parties to submit their comments to it within one month of the publication of this notice.

(16) Interested third parties are also asked to submit a non-confidential version of their comments, in which commercial secrets and other confidential passages are deleted and are replaced as required by a non-confidential summary or by the words «[commercial secrets]» or «[confidential]» .

(17) Comments should be sent to the following address, mentioning the reference «COMP/C-2/37.214 - Joint selling of media rights to the Bundesliga» :

European Commission

Directorate-General for Competition

Antitrust Registry

B-1049 Brussels

Fax (32-2) 295 01 28

(1) The joint selling right covers all types of broadcasting right: free TV, pay TV and pay per view TV; terrestrial broadcasting, cable or satellite broadcasting; live or deferred broadcasting; showing of the entire event, of extracts or of compiled highlights; and radio. It also covers rights for all kinds of existing and future technical facilities such as UMTS, the Internet or business TV.

(2) OJ C 261, 30.10.2003, p. 13.