Joined Cases T-185/00, T-216/00, T-299/00 and T-300/00

Métropole television SA (M6) and Others

v

Commission of the European Communities

‛Competition — Decision granting exemption — Television rights — Eurovision system — Article 81(1) and (3) EC — Manifest error of assessment’

Judgment of the Court of First Instance (Second Chamber, Extended Composition), 8 October 2002   II-3808

Summary of the Judgment

1. Competition — Agreements, decisions and concerted practices — Prohibition — Exemption — Conditions — Assessment made by the Commission without previously defining exactly the relevant product market and geographic market — Narrowest possible market taken into account — No effect on assessment made — Whether permissible

   (Art. 81(3) EC)

2. Competition — Agreements, decisions and concerted practices — Prejudicial to competition — Professional association of radio and television organisations — Agreements organising the joint acquisition of exclusive television rights to sporting events — Competition between members and between members and nonmember undertakings restricted

   (Art. 81(1) and (3)(b) EC)

3. Competition — Agreements, decisions and concerted practices — Prohibition — Exemption — Conditions — Not possible to eliminate competition in respect of a substantial part of the products in question — Professional association of radio and television organisations — Agreements organising the joint acquisition of exclusive television rights to sporting events — Very limited access for nonmember undertakings to the rights acquired by the association — Agreements eliminating competition — Exemption excluded

   (Art. 81(3)(b)EC)

1.  It cannot properly be complained that the Commission has failed to define exactly the product market or geographic markets concerned when examining whether a set of agreements, such as that established by the European Broadcasting Union (EBU), a professional association of radio and television organisations, on the acquisition and exploitation of rights to broadcast sporting events could be granted an exemption under Article 81(3) EC, if it has taken as the basis for its examination the narrowest possible market, in this instance the market consisting of certain major international sporting events, such as the Olympic Games, and if that approach has not, in the specific case, affected its analysis of whether the condition for the grant of an exemption

   laid down in Article 81(3)(b) EC has been satisfied.

   (see para. 57)

2.  The television programme exchange system set up by the European Broadcasting Union (EBU), a professional association of radio and television organisations, which provides for the joint acquisition of television rights to sporting events, comprises two types of restrictions on competition. First, the joint acquisition of such rights, their sharing and the exchange of signal restricts or even eliminates competition among EBU members which are competitors on both the upstream market, for the acquisition of rights, and the downstream market, for televised transmission of sporting events. In addition, that system gives rise to restrictions on competition as regards third parties since those rights are generally sold on an exclusive basis, so that EBU nonmembers would not in principle have access to them. While it is true that the purchase of televised transmission rights for an event is not in itself a restriction on competition likely to fall under Article 81(1) EC and may be justified by particular characteristics of the product and the market in question, the exercise of those rights in a specific legal and economic context may none the less lead to such a restriction.

   (see paras 63-64)

3.  The set of agreements established by the European Broadcasting Union (EBU), a professional association of radio and television organisations, on the acquisition and exploitation of televised broadcasts of sporting events does not, for the purposes of Article 81(3)(b) EC, make it possible to avoid the elimination of competition and therefore cannot be exempted under that provision because the sublicensing scheme included in those agreements does not guarantee the competing undertakings sufficient access to the exclusive transmission rights jointly acquired by the association undertakings. Apart from a few exceptions, the scheme does not enable third parties to obtain sub-licences for the live broadcast of unused rights and, in reality, grants them access only to the acquisition of sub-licences to transmit roundups of competitions under extremely restrictive conditions.

   (see paras 83, 85)