20080112

Final report of the Hearing Officer in Case COMP/38.173 — Joint selling of the media rights to the FA Premier League

(Pursuant to Articles 15 and 16 of Commission Decision 2001/462/EC, ECSC of 23 May 2001 on the terms of reference of Hearing Officers in certain competition proceedings — OJ L 162, 19.6.2001, p. 21)

(2008/C 7/09)

The draft decision presented to the Commission under Article 9 of Council Regulation (EC) No 1/2003 relates to the selling of media rights to the football matches of the English Premier League. The media rights are sold by the Football Association Premier League Ltd (FAPL) on behalf of the clubs which are members of the Premier League.

On 23 June 2001, the Commission opened an own initiative investigation into the FAPL's joint selling of the media rights of Premier League matches. On 21 June 2002, the FAPL notified in accordance with Articles 2 and 4 of Regulation No 17/62, the applicable law at the time, parts of its rules and regulations concerning the joint selling of the media rights to the Premier League with a view to obtaining a negative clearance or, failing this, an individual exemption under Article 81(3) of the EC Treaty.

In its Statement of Objections addressed to the FAPL on 17 December 2002, the Commission raised concerns as to the compatibility of the horizontal joint selling arrangements put in place by the football clubs in the Premier League with Article 81(1) of EC Treaty and concluded that the arrangements did not fulfil the criteria set out in Article 81(3) of the EC Treaty.

For the purposes of the present decision, this Statement of Objections is now considered to constitute a preliminary assessment in the meaning of Article 9(1) of Regulation (EC) No 1/2003.

On 18 March 2003, the FAPL submitted a formal reply to the Statement of Objections, denying that the arrangements restricted competition. They waived their right to an oral hearing. A number of third parties were admitted to the procedure having demonstrated a sufficient interest. Ensuing discussions with the Commission services led the FAPL to submit a provisional set of commitments by December 2003.

On 30 April 2004, the Commission published a notice in the Official Journal of the European Union, pursuant to Article 19(3) of Regulation No 17/62, inviting interested companies to transmit their potential observations on this notification. In response to this invitation, a number of observations were received, which mainly did not confirm the effectiveness of the commitments proposed by FAPL.

As a result of the applicability as from 1 May 2004 of Regulation (EC) No 1/2003, the application made by FAPL lapsed in accordance with Article 34 of this regulation but the procedural steps already taken continued to develop their effects for the purpose of applying Regulation (EC) No 1/2003.

Following the third party comments on the Notice issued pursuant to Article 19(3) of Regulation No 17/62, further discussions between the Commission and the FAPL led to the submission of a revised set of proposed commitments in November 2005.

The Commission has now come to the conclusion that, in view of the commitments proposed by the FAPL in response to the Statement of Objections and as later amended to take account of the relevant observations by third companies, and without prejudice to Article 9(2) of Regulation (EC) No 1/2003, there are no longer grounds for action.

In a Decision under Article 9 of Regulation (EC) No 1/2003, a breach of the competition rules is not established, but the Parties accept to remedy the concerns expressed by the Commission in a preliminary assessment. There is in this process a willingness on both sides to simplify the administrative and legal requirements which are inherent in a full investigation of a suspected infringement. This is the reason why in several Decisions taken already by the College [1], it has been accepted that due process is satisfied when the Parties inform the Commission that they have received sufficient access to the information that they considered necessary to propose commitments in order to meet the concerns expressed by the Commission.

This case has also been dealt with in the same manner, the FAPL having submitted a Declaration to the Commission to this effect on 2 March 2006.

In the light of the above, I consider that the rights to be heard have been respected in this case.

Brussels, 14 March 2006.

Karen Williams

[1] Cf. decision of 22 June 2005 in Case COMP/39.116 — Coca-Cola and decision of 19 January 2005 in Case COMP/37.214 — DFB.

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