Article 16 - Freedom to conduct a business
Article 17 - Right to property
Article 11 - Freedom of expression and information
Article 52 - Scope and interpretation
Sky Österreich GmbH v Österreichischer Rundfunk. Request for a preliminary ruling from the Bundeskommunikationssenat. Directive 2010/13/EU — Provision of audiovisual media services — Article 15(6) –Validity — Events of high interest to the public that are subject to exclusive broadcasting rights — Right of access of broadcasters to such events for the purpose of making short news reports — Limitation of possible compensation for the holder of the exclusive right to additional costs incurred in providing such access — Charter of Fundamental Rights of the European Union — Articles 16 and 17 — Proportionality.
Outcome of the case:
On those grounds, the Court (Grand Chamber) hereby rules:
Consideration of the question raised has not disclosed any factor of such a kind as to affect the validity of Article 15(6) of Directive 2010/13/EU of the European Parliament and of the Council of 10 March 2010 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services (Audiovisual Media Services Directive).
7) Directive 89/552, as amended by Directive 2007/65, was repealed by Article 34(1) of Directive 2010/13, recital 48 in the preamble thereto states: ‘Television broadcasting rights for events of high interest to the public may be acquired by broadcasters on an exclusive basis. However, it is essential to promote pluralism through the diversity of news production and programming across the [European] Union and to respect the principles recognised by Article 11 of the Charter of Fundamental Rights of the European Union [(‘The Charter’)].’
20) On the substance, the Bundeskommunikationssenat considers that the right to produce short news reports constitutes an interference with the right to property, as laid down in Article 17 of the Charter, of the broadcaster which has acquired, on a contractual basis, broadcasting rights relating to an event of high interest to the public on an exclusive basis (‘the holder of exclusive broadcasting rights’).
21) Referring, in particular, to Article 52(1) of the Charter, the Bundeskommunikationssenat questions whether a provision of a directive which prevents the authorities of a Member State from providing for compensation for such an interference with the right to property is consistent with the principle of proportionality. It considers that the fact that Article 15(6) of Directive 2010/13 provides that the Member States are required to define the modalities and conditions relating to the right to produce short news reports cannot make up for such an inference. The Bundeskommunikationssenat considers that, in the light, in particular, of the principle of proportionality, it is necessary to adopt a rule allowing account to be taken of the circumstances of the case and, in particular, the subject-matter of the exclusive broadcasting rights and the amount paid by the holder to acquire those rights in order to calculate appropriate compensation.
24) In those circumstances, the Bundeskommunikationssenat decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:
‘Is Article 15(6) of [Directive 2010/13] compatible with Articles 16 and 17 of the Charter ... and with Article 1 of [the Additional] Protocol …?’
30) By its question, the Bundeskommunikationssenat requests the Court, in essence, to examine the validity of Article 15(6) of Directive 2010/13 in the light of Articles 16 and 17(1) of the Charter and Article 1 of the Additional Protocol. In particular, it asks whether Article 15(6) amounts to an infringement of the fundamental rights of the holder of exclusive broadcasting rights, since the holder of those rights is required to authorise any other broadcaster, established in the European Union, to make short news reports, without being able to seek compensation exceeding the additional costs directly incurred in providing access to the signal.
31) Article 17(1) of the Charter provides that ‘[e]veryone has the right to own, use, dispose of and bequeath his or her lawfully acquired possessions. No one may be deprived of his or her possessions, except in the public interest and in the cases and under the conditions provided for by law, subject to fair compensation being paid in good time for their loss. The use of property may be regulated by law in so far as is necessary for the general interest.’
34) In those circumstances, the question arises as to whether the guarantees provided in Article 17(1) of the Charter extend to audiovisual broadcasting rights acquired contractually. The protection granted by that article does not apply to mere commercial interests or opportunities, the uncertainties of which are part of the very essence of economic activity (Joined Cases C-120/06 P and C-121/06 P FIAMM and Others v Council and Commission  ECR I-6513, paragraph 185 and the case-law cited), but applies to rights with an asset value creating an established legal position under the legal system, enabling the holder to exercise those rights autonomously and for his benefit.
38) In the light of that European Union legislation, which the Member States are required to transpose into their respective national laws, a contractual clause, such as the one at issue in the main proceedings, cannot confer an established legal position on a broadcaster, protected by Article 17(1) of the Charter, enabling it to exercise its broadcasting right autonomously, as referred to in paragraph 34 above, in the sense that it could demand compensation exceeding the additional costs directly incurred in providing access to the signal, contrary to the mandatory provisions of Directive 2007/65.
39) An economic operator, such as Sky, which, after the entry into force of Directive 2007/65 on 19 December 2007, has acquired exclusive broadcasting rights by means of a contract – on 21 August 2009 in this instance – cannot, in the light of European Union law, rely on an acquired legal position, protected by Article 17(1) of the Charter, as the Member States were required to transpose that directive, which they might do at any point and had to do by 19 December 2009 at the latest.
40) In those circumstances, a holder of exclusive broadcasting rights relating to events of high interest to the public cannot rely on the protection afforded by Article 17(1) of the Charter. ...
41) Article 16 of the Charter provides that ‘[t]he freedom to conduct a business in accordance with European Union law and national laws and practices is recognised’. 42 The protection afforded by Article 16 of the Charter covers the freedom to exercise an economic or commercial activity, the freedom of contract and free competition, as is apparent from the explanations relating to that article, which, in accordance with the third subparagraph of Article 6(1) TEU and Article 52(7) of the Charter, have to be taken into consideration for the interpretation of the Charter (Case C-279/09 DEB  ECR I-13849, paragraph 32).
46) On the basis of that case-law and in the light of the wording of Article 16 of the Charter, which differs from the wording of the other fundamental freedoms laid down in Title II thereof, yet is similar to that of certain provisions of Title IV of the Charter, the freedom to conduct a business may be subject to a broad range of interventions on the part of public authorities which may limit the exercise of economic activity in the public interest.
47) That circumstance is reflected, inter alia, in the way in which Article 52(1) of the Charter requires the principle of proportionality to be implemented.
48) In accordance with Article 52(1) of the Charter, any limitation on the exercise of the rights and freedoms recognised by the Charter must be provided for by law and respect the essence of those rights and freedoms and, in compliance with the principle of proportionality, must be necessary and actually meet objectives of general interest recognised by the European Union or the need to protect the rights and freedoms of others.
51) In that regard, the Court notes, first of all, that the marketing on an exclusive basis of events of high interest to the public is increasing and liable to restrict considerably the access of the general public to information relating to those events. It is in that connection that Article 15 of Directive 2010/13 seeks, as is apparent from recitals 48 and 55 in the preamble thereto, to safeguard the fundamental freedom to receive information, guaranteed under Article 11(1) of the Charter, and to promote pluralism of the media in the production and programming of information in the European Union, protected under Article 11(2) of the Charter.
52) The safeguarding of the freedoms protected under Article 11 of the Charter undoubtedly constitutes a legitimate aim in the general interest (see, to that effect, Case C-250/06 United Pan-Europe Communications Belgium and Others  ECR I-11135, paragraph 42), the importance of which in a democratic and pluralistic society must be stressed in particular (see, to that effect, Case C-336/07 Kabel Deutschland Vertrieb und Service  ECR I-10889, paragraph 33, and Case C-163/10 Patriciello  ECR I-7565, paragraph 31). That importance is particularly evident in the case of events of high interest to the public. It must thus be found that Article 15 of Directive 2010/13 does pursue an objective in the general interest.
66) In the light, first, of the importance of safeguarding the fundamental freedom to receive information and the freedom and pluralism of the media guaranteed by Article 11 of the Charter and, second, of the protection of the freedom to conduct a business as guaranteed by Article 16 of the Charter, the European Union legislature was entitled to adopt rules such as those laid down in Article 15 of Directive 2010/13, which limit the freedom to conduct a business, and to give priority, in the necessary balancing of the rights and interests at issue, to public access to information over contractual freedom.