8.11.2003 EN L 291/25Official Journal of the European Union
COMMISSION DECISION
of 23 July 2003
relating to a proceeding pursuant to Article 81 of the EC Treaty and Article 53 of the EEA
Agreement
(COMP/C.2-37.398 — Joint selling of the commercial rights of the UEFA Champions League)
(notified under document number C(2003) 2627)
(Only the English text is authentic)
(Text with EEA relevance)
(2003/778/EC)
CONTENTS
Page
1. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
2. PARTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
3. THE NOTIFIED AGREEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
3.1. The UEFA Champions League . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
3.1.1. The origins of the UEFA Champions League . . . . . . . . . . . . . . . . . . . . . . . 28
3.1.2. The UEFA Champions League format . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
3.1.3. UEFA’s role in the UEFA Champions League . . . . . . . . . . . . . . . . . . . . . . . 29
3.1.4. The football clubs’ role in the UEFA Champions League . . . . . . . . . . . . 30
3.2. The notification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
3.3. UEFA’s amendment of the notification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
3.4. UEFA’s amended joint selling arrangement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
3.4.1. TV broadcasting rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
3.4.1.1. Football matches subject to joint selling . . . . . . . . . . . . . . . . 31
3.4.1.2. Tendering procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
3.4.1.3. Rights packaging . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
3.4.2. Internet rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
3.4.3. Wireless 3G/UMTS rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
3.4.4. Physical media rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
3.4.5. Audio rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
3.4.6. Other commercial rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
3.4.6.1. Sponsorship rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
3.4.6.2. Suppliership rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
3.4.6.3. Licensing rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
3.4.6.4. Other intellectual property rights . . . . . . . . . . . . . . . . . . . . . . 34
L 291/26 EN 8.11.2003Official Journal of the European Union
4. THE RELEVANT MARKET . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
4.1. Product markets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
4.1.1. UEFA’s submission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
4.1.2. The markets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
4.1.3. The upstream market for the acquisition of TV broadcasting rights of
football events played regularly throughout every year . . . . . . . . . . . . . 35
4.1.3.1. Channel brand image . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
4.1.3.2. A particular audience . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
4.1.3.3. Conclusion regarding the upstream market . . . . . . . . . . . . 39
4.1.4. The downstream markets on which broadcasters compete for adver-
tising revenue depending on audience rates and pay-TV subscribers . 39
4.1.5. The upstream and downstream markets for the acquisition of media
rights for new media (wireless 3G/UMTS and Internet) of football . . . 39
4.1.6. The upstream and downstream markets for the other commercial
rights — sponsorship, suppliership and product licensing . . . . . . . . . . 40
4.2. The geographic markets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
4.2.1. The geographic scope of the upstream market . . . . . . . . . . . . . . . . . . . . . 40
4.2.2. The geographic scope of the downstream market . . . . . . . . . . . . . . . . . . 40
5. THIRD-PARTY OBSERVATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
6. APPLICATION OF ARTICLE 81 OF THE TREATY AND ARTICLE 53 OF THE EEA
AGREEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
6.1. Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
6.2. Article 81(1) of the Treaty and Article 53(1) of the EEA Agreement . . . . . . . . . . . 42
6.3. Agreements or decisions between undertakings and associations of undertak-
ings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
6.4. Restriction of competition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
6.4.1. Scope of the present procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
6.5. Applicability of Article 81(1) of the Treaty or Article 53(1) of the EEA
Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
6.5.1. League rights and individual football clubs’ rights . . . . . . . . . . . . . . . . . . 44
6.5.2. The special characteristics of sport . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
6.5.3. Appreciability of the restriction on competition . . . . . . . . . . . . . . . . . . . 46
6.6. Effect on trade between Member States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
7. ARTICLE 81(3) OF THE TREATY AND ARTICLE 53(3) OF THE EEA AGREEMENT . . . 47
7.1. Improvement in production or distribution and/or promoting technical or
economic progress . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
7.1.1. Single point of sale of a league product . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
7.1.2. Branding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
7.1.3. Football clubs’ individual sale of live TV rights unsold by the joint
selling body . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
7.1.4. Football clubs’ individual sale of deferred media rights . . . . . . . . . . . . . . 50
8.11.2003 EN L 291/27Official Journal of the European Union
7.1.5. Enhancing the focus of the respective UEFA Champions League and
football clubs’ brands . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
7.1.6. Solidarity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
7.1.7. Conclusion regarding improvement in production or distribution
and/or promoting technical or economic progress . . . . . . . . . . . . . . . . . 51
7.2. Fair share of the benefit to consumers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
7.3. Restrictions that are indispensable . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
7.3.1. Indispensability of restrictions to create a league product sold via a
single point of sale . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
7.3.2. Individual football clubs’ sale of own media rights . . . . . . . . . . . . . . . . . 53
7.4. No elimination of competition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
7.5. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
8. CONDITIONS AND DURATION OF EXEMPTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
9. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Com-
munity,
Having regard to the Agreement on the European Economic
Area,
Having regard to Council Regulation No 17 of 6 February
1962, First Regulation implementing Articles 85 and 86 of
the Treaty (
1
), as last amended by Regulation (EC) No 1/
2003 (
2
), and in particular Articles 6 and 8 thereof,
Having regard to the application for negative clearance submit-
ted by UEFA on 1 February 1999 pursuant to Article 2 of
Regulation No 17 and the notification with a view to obtaining
an exemption submitted by UEFA on 1 February 1999 on
1 February 1999 and as amended on 13 May 2002 pursuant
to Article 4 of Regulation No 17,
Having regard to the Commission decision of 18 July 2001 to
initiate proceedings in this case,
Having given the undertakings concerned the opportunity (
3
)
to make known their views on the objections raised by the
Commission pursuant to Article 19(1) of Regulation No 17
and Commission Regulation (EC) No 2842/98 of 22 December
1998 on the hearing of parties in certain proceedings under
Articles 85 and 86 of the Treaty (
4
),
After consulting the Advisory Committee on Restrictive Prac-
tices and Dominant Positions,
(
1
) OJ 13, 21.2.1962, p. 204/62.
(
2
) OJ L 1, 4.1.2003, p. 1.
(
3
) OJ C 196, 17.8.2002, p. 3.
(
4
) OJ L 354, 30.12.1998, p. 18.
Having regard to the final report of the Hearing Officer in this
case (
5
),
Whereas:
1. INTRODUCTION
(1)
This Decision relates to the rules, regulations and all
implementing decisions taken by Union des Associations
Européennes de Football (UEFA) and its members con-
cerning the joint selling arrangement regarding the sale
of the commercial rights (
6
) of the UEFA Champions
League, a pan-European club football competition. The
Regulations of the UEFA Champions League provide
UEFA, as a joint selling body, with the exclusive right to
sell certain commercial rights of the UEFA Champions
League on behalf of the participating football clubs. The
joint selling arrangement restricts competition among
the football clubs in the sense that it has the effect of co-
ordinating the pricing policy and all other trading
conditions on behalf of all individual football clubs
producing the UEFA Champions League content. How-
ever, the Commission considers that such restrictive
rules can be exempted in the specific circumstances of
this case. UEFA’s joint selling arrangement provides the
consumer with the benefit of league focused media
products from this pan-European football club compe-
tition that is sold via a single point of sale and which
could not otherwise be produced and distributed equally
efficiently.
(
5
) OJ C 269, 8.11.2003.
(
6
) Media rights (radio, television, Internet and UMTS), sponsorship,
suppliership, licensing and IPRs.
L 291/28 EN 8.11.2003Official Journal of the European Union
2. PARTIES
(2)
UEFA is a company, registered in the register of com-
panies under the terms of the Swiss civil code, with its
headquarters located in Nyon, Switzerland (
7
). UEFA is
an association of national football associations. Its
membership comprises national football associations
situated in the European continent (
8
). Currently, UEFA
has 51 members; 21 of these member associations are
located in the EEA (
9
).
(3) UEFA is the regulatory authority of European football.
UEFA has the sole jurisdiction to organise or abolish
international competitions in Europe in which member
associations and/or their football clubs participate. Other
international competitions or tournaments require the
approval of UEFA (
10
) except for those organised by
Fédération internationale de football association (FIFA).
UEFA organises a number of European football tourna-
ments in addition to the UEFA Champions League.
(4) UEFA’s congress is the supreme controlling organ of
UEFA. Each national football association has one vote at
the congress (
11
). The congress adopts UEFA’s statutes. It
elects the president(
12
) andthe Executive Committee (
13
).
The Executive Committee consists of the president and
13 members who must hold office within a national
member association (
14
). The Executive Committee man-
ages UEFA, except to the extent it hasdelegated responsi-
bility to the Chief Executive Officer (
15
) whom it also
appoints (
16
). The Executive Committee draws up the
regulations governing the conditions for participation in
and the staging of UEFA competitions, including the
Regulations of the UEFA Champions League. It is a
condition for entry into the UEFA Champions League
competition that each member association and/or foot-
ball club affiliated to a Member Association agrees to
comply with the statutes and regulations and decisions
of the competent UEFA organs(
17
).
3. THE NOTIFIED AGREEMENT
3.1. The UEFA Champions League
3.1.1. The origins of the UEFA Champions League
(5) The UEFA Champions League is UEFA’s most prestigious
club competition. Originally created as the European
(
7
) Article 1 of UEFA’s Statutes (Edition 2000).
(
8
) Article 5 of UEFA’s Statutes.
(
9
) In the United Kingdom, there are four UEFA member associ-
ations: England, Wales, Scotland and Northern Ireland.
(
10
) Article 48 of UEFA’s Statutes.
(
11
) Article 18 of UEFA’s Statutes.
(
12
) Article 13(1)(f) of UEFA’s Statutes.
(
13
) Article 13(1)(g) of UEFA’s Statutes.
(
14
) Article 21 of UEFA’s Statutes.
(
15
) Article 23(2) of UEFA’s Statutes.
(
16
) Article 24(1)(e) of UEFA’s Statutes.
(
17
) Article 49 of UEFA’s Statutes.
Champion Clubs’ Cup prior to the 1955/1956 season,
the competition changed format and name in time for
the 1992/1993 season. The UEFA Champions League is
open to each national football association’s domestic
club champions, as well as the clubs, which finish just
behind them in the domestic championship table. The
number of clubs that can be entered by an association
depends on the football association’s position in UEFA’s
coefficient ranking list. Including the qualifying stages, a
total of 96 football clubs participate in the UEFA
Champions League.
3.1.2. The UEFA Champions League format
(6) The UEFA Champions League format applicable at the
time of the notification (
18
) consisted of two qualifying
phases prior to the UEFA Champions League. The UEFA
Champions League itself consisted of the group matches
and a final knockout phase of quarter-finals, semi-finals
and a final. The UEFA Executive Committee decided on
10 and 11 July 2002 to replace the second group stage
with a knockout phase as from the 2003/2004 season.
With the elimination of the second group stage, there
will be a total of 125 matches and a total of 13 match
days in the 2003/2004 UEFAChampions Leagueformat.
(7) In the 2003/2004 season the competition consists of
the following phases. 80 football clubs participate
in three initial qualifying rounds playing a total of
160 matches, which is required to find 16 qualifiers to
join the top 16 automatic qualifiers playing in the UEFA
Champions League. The UEFA Administration seeds
football clubs for the qualifying rounds and the group
stage in accordance with the club rankings established
at the beginning of the season. These rankings are drawn
up on the basis of a combination of the national
associations’ coefficient and the football clubs’ individual
performance in the UEFA club competitions during the
same period. For the qualifying rounds, a draw between
the same number of seeded and unseeded football clubs
determines the pairings. For the third qualifying round
the UEFA administration is empowered to form groups
in accordance with set principles. For the purpose of the
draw, the 32 football clubs involved in the UEFA
Champions League group stage are seeded into eight
groups of four in accordance with the aforementioned
rankings. All matches are played according to UEFA’s
match calendar. The venues, dates and kick-off times of
all qualifying matches must be confirmed and communi-
cated to the UEFA administration by the national
associations of the football clubs concerned.
(
18
) Regulations for the UEFA Champions League 1998/1999.
8.11.2003 EN L 291/29Official Journal of the European Union
(8) Member associations and their affiliated organisations
or football clubs sell the media rights of these three
qualifying rounds themselves. UEFA does not participate
in the selling of these rights and UEFA consequently
does not undertake organisational and administrative
responsibilities other than conducting the draw pro-
cedure and appointing referees and a ‘match delegate’ to
oversee sporting/disciplinary standards. UEFA is not
involved in the selection or appointment of third party
service providers to provide services that are required in
connection with a match. Nor is UEFA involved in
production of full audio visual match coverage for
each match or appointment of commercial partners:
sponsors, suppliers, or licensees.
(9) The football clubs have not extended the joint selling
arrangement to these three qualifying rounds and the
manner in which these rights are sold are therefore not
relevant for the purposes of this decision. It would
appear that the UEFA and football clubs have decided
not to extend the joint selling arrangement to these
matches as demand for such early stage qualifying
matches is rather low and of a local nature. The matches
that will take place between small and big clubs due to
UEFA’s seeding system are without pan-European cross-
border appeal. Demand is typically from broadcasters of
the two countries of the football clubs. It would
moreover greatly increase the costs for UEFA to maintain
the consistency of branding and presentation of the
UEFA Champions League if it were to include all the
qualifying matches in the joint selling concept (more
than 100 matches). UEFA would have to make site
surveys and visits to all the additional match venues. It
would have to ensure compliance with all standard
UEFA Champions League broadcaster facilities. It would
have to make sure ‘clean’ stadia would be provided for
the UEFA Champions League commercial partners and
so forth. UEFA would have to monitor all the other
obligations, which clubs must meet for participation in
the UEFA Champions League. This would explain the
fact that UEFA and the football clubs do not find it
efficient to sell those media rights jointly or indispens-
able to restrict football clubs in their individual mar-
keting.
(10) The qualifying-phase matches are played according to a
knockout system with each club playing each opponent
twice in home and away matches. The team which
scores the greater aggregate of goals in the two matches
qualifies for the next stage (second qualifying round,
third qualifying round or the UEFA Champions League
group stage, as applicable). The football clubs defeated
in the first and second qualifying rounds are eliminated
from the competition. The 16 clubs defeated in the third
qualifying round are entitled to play in the first round of
the current UEFA Cup.
(11) Beginning in September these 32 football clubs then
contest the group stage, comprising eight groups of four
clubs. The winners and runners-up from these eight
groups, in total 16 football clubs, then advance to a
second knockout phase on a home and away basis. The
surviving football clubs contest the quarter-finals. For
the quarter-final (8 clubs) and semi-final stage (4 clubs),
the clubs play two matches against each other on a
home and away basis, with the team scoring the greater
aggregate of goals qualifying for the next round. The
two winners of the two semi-finals play in the final,
which is staged as a single match.
(12) The games are played on Tuesday or Wednesday nights
from September with the final played in May. As a rule,
matches in the UEFA Champions League kick off at
20.45 hours central European time. The UEFA Cham-
pions League therefore avoids clashing with the fixtures
of domestic leagues, which are mostly played weekends,
and the UEFA Cup, which is mostly playedon Thursdays.
3.1.3. UEFA’s role in the UEFA Champions League
(13) UEFA has the organisational and administrative
responsibility for the UEFA Champions League. UEFA
conducts the draw procedure and approves the partici-
pants. UEFA appoints referees, match delegates and
referee observers and covers their expenses. It is the
disciplinary body supervising and enforcing all aspects
of the competition. UEFA selects and appoints a wide
range of third party service providers to provide services
that are required in connection with a match (
19
).
(14) Television Event and Media Marketing AG (TEAM), an
independent marketing company, assists UEFA in the
implementation and follow-up of the commercial
aspects of the UEFA Champions League. As an agent
under UEFA’s control and responsibility, TEAM conducts
negotiations with the commercial partners. The agree-
ments are signed and executed by UEFA, which assumes
all legal responsibilities.
(
19
) The range of services that UEFA arranges include: product
development, sales, after sales services and client relations with
broadcasters, sponsors, suppliers, licensees and participating
clubs, media services (booking of commercial spotsand broadcast
sponsorship throughout the world), legal services, television
production services, auditing and monitoring of UEFA Cham-
pions League television programs throughout the world, research
services, operational implementation of the commercial concept,
hospitality services, financial and administrative services, and
statistical and information services (competition analysis).
L 291/30 EN 8.11.2003Official Journal of the European Union
(15) UEFA arranges for the production of full audio visual
match coverage for each match. UEFA’s broadcast
partners act as host-broadcaster for the matches within
their territory. UEFA assumes the responsibility towards
the broadcasters if any match should be cancelled or
postponed.
(16) In addition to media operators, UEFA has three types
of commercial partners: sponsors, suppliers (
20
), and
licensees (
21
).
3.1.4. The football clubs’ role in the UEFA Champions
League
(17) The participating football clubs provide a team of
football players and the stadium. UEFA has no direct
contacts with the stadium owners. The football clubs are
obliged to follow the guidelines set out by UEFA and act
under UEFA’s supervision. They are responsible for
fulfilling safety and security requirements. The football
clubs also provide facilities for the press, hospitality
areas, offices, working areas and seats for UEFA’s
commercial partners. UEFA appoints a ‘Venue Team’
that carries out a ‘site survey’ to ensure that the stadium
is equipped to stage an UEFA Champions League match.
3.2. The notification
(18) UEFA notified the rules, regulations and implementing
decisions regarding its joint selling arrangement to the
Commission on 19 February 1999. The notification
included standard rights agreements for conclusion with
television broadcasters, sponsors and suppliers. The
Commission issued a statement of objections on 18 July
2001, which stated that the notified joint selling arrange-
ment relating to the sale of the television broadcasting
rights infringed Article 81(1) of the Treaty and
Article 53(1) of the EEA Agreement. It also stated
that the joint selling arrangement was not eligible
for exemption under Article 81(3) of the Treaty and
Article 53(3) of the EEA Agreement.
(
20
) For example there is a computer and telecommunications
supplier, which provides technical support to the broadcast
graphics service and, in return, receives on-screen credits in all
the European live match broadcasts and during the highlights
programme.
(
21
) The UEFA Champions League licensing concept allows for
selected companies to produce high-quality products related to
the UEFA Champions League, for example, UEFA Champions
League video games, UEFA Champions League videos or UEFA
Champions League CD-ROM football encyclopaedias.
(19)
The statement of objections concluded that the notified
joint selling arrangement prevented the individual foot-
ball clubs participating in the UEFA Champions League
from taking independent commercial action in respect
of the TV rights and excluded competition between
them in individually supplying TV rights to interested
buyers. The effect of such joint selling arrangement was
the restriction of competition. The implication for third
parties is that they only have a single source of supply.
The statement of objections moreover found that the
possible efficiencies and benefits that the joint selling
arrangement could provide for the TV broadcasting
market were negated by the commercial policy pursued
by UEFA. The reason was that UEFA sold the free-TV
and pay-TV rights on an exclusive basis in a single
bundle to a single TV broadcaster per territory for
several years in a row. Since the broadcasting rights
agreements covered all TV rights of the UEFA Cham-
pions League, it made it possible for a single large
broadcaster per territory to acquire all TV rights of the
UEFA Champions League to the exclusion of all other
broadcasters. It also left a number of rights effectively
unexploited. Such a broad exclusivity did not have any
beneficial effects on the TV broadcasting market and
was not in line with the Helsinki Report on Sport (
22
).
(20) In most countries football is not only the driving force
for the development of pay-TV services but is also an
essential programme item for free-TV broadcasters. Joint
selling of free-TV and pay-TV rights combined with wide
exclusive terms therefore has significant effects on the
structure of the TV broadcasting markets as it can
enhance media concentration and hamper competition
between broadcasters. If one broadcaster holds all or
most of the relevant football TV rights in a Member
State, it is extremely difficult for competing broadcasters
to establish themselves successfully in that market.
(
22
) See also point 4.2.1.3 of the Report from the Commission to the
European Council with a view to safeguarding current sports
structures and maintaining the social function of sport within
the Community framework — The Helsinki Report on Sport —of
10 December 1999:
‘Any exemptions granted in the case of the joint sale of
broadcasting rights must take account of the benefits for con-
sumers and of the proportional nature of the restriction on
competition in relation to the legitimate objective pursued. In
this context, there is also a need to examine the extent to which
a link can be established between the joint sale of rights and
financial solidarity between professional and amateur sport, the
objectives of the training of young sportsmen and women and
those of promoting sporting activities among the population.
However, with regard to the sale of exclusive rights to broadcast
sporting events, it is likely that any exclusivity which, by its
duration and/or scope, resulted in the closing of the market,
would be prohibited.’
8.11.2003 EN L 291/31Official Journal of the European Union
3.3. UEFA’s amendment of the notification
(21) UEFA replied to the statement of objections on 16 Nov-
ember 2001. On 8 January 2002 UEFA submitted an
outline of a new joint selling arrangement. Subsequently,
on 12 March 2002, UEFA presented a rights segmen-
tation table for the exploitation of not only the TV
broadcasting rights but, also, all the other media rights
of the UEFA Champions League. These include rights for
radio, television, Internet, universal mobile telecom-
munications system (UMTS) and physical media such as
DVD, VHS, CD-ROM, etc.
(22) UEFA’s proposal for a new joint selling arrangement
means a reduction of UEFA’s exclusive right to sell the
UEFA Champions League media rights. The new joint
selling arrangement would allow also the football clubs
to sell on a non-exclusive basis in parallel with UEFA
certain media rights relating to action in which they are
participating. UEFA’s proposal also implies an
unbundling of the media rights by splitting them up into
several different rights packages that would be offered
for sale in separate packages to different third parties.
(23) UEFA’s proposal for a new joint selling arrangement was
the subject of several meetings between UEFA and the
Commission and it was modified in a number of points
at the request of the Commission. Subsequent to the
introduction of these modifications, the Commission’s
preliminary view was that the competition concerns as
expressed in the statement of objections would be
remedied by UEFA’s proposal. The Commission there-
fore intended to take a favourable view in respect of
UEFA’s proposal, which UEFA notified to the Com-
mission on 13 May 2002. However, the Commission’s
preliminary approval was subject to giving third parties
the opportunity to comment on the proposal following
the publication of a notice pursuant to Article 19(3) of
Regulation No 17.
(24) That notice was published in the Official Journal of the
European Communities on 17 August 2002 and prompted
reactions from a number of interested third parties. The
third party comments, which are summarised below in
section 5, resulted in the Commission requesting UEFA
to make further amendments in its joint selling arrange-
ment. UEFA agreed to amend its joint selling arrange-
ment in most respects, but not all. At a meeting on
4 April 2003 UEFA was informed that the Commission
intended to attach conditions to the exemption decision.
It was subsequently notified thereof by letter dated
5 May 2003, in which UEFA wasinvited to communicate
its position on the Commission’s intention to impose a
condition. UEFA indicated in its reply of 15 May 2003
that it could accept the Commission’s intention.
3.4. UEFA’s amended joint selling arrangement
(25) UEFA proposes, as a general principle, that media rights
contracts be concluded for a period not exceeding three
UEFA Champions League seasons.
3.4.1. TV broadcasting rights
3.4.1.1. F o o t b a l l m a t c h e s s u b j e c t t o
joint selling
(26) As already explained in recital 9, UEFA’s joint selling
arrangement does not applyto the three initial qualifying
rounds prior to the UEFA Champions League. The
individual football clubs sell the TV broadcasting rights
of those matches individually. This involves 80 football
clubs playing 160 matches. UEFA’s joint selling arrange-
ment applies only to the UEFA Champions League group
stage and final knockout phases. The joint selling
arrangement therefore applies to a total of 32 football
clubs playing a total of 125 matches during a total of
13 match days from September to May. In UEFA’s
terminology, a match day consists of two calendar days
(currently Tuesday and Wednesday).
3.4.1.2. T e n d e r i n g p r o c e d u r e
(27) The award of the rights contracts follows an ‘invitation
to tender’ giving all qualified broadcasters an equal
opportunity to bid for the rights in the full knowledge
of the key terms and conditions.
(28) UEFA will, from time to time, publish criteria on the
standards which broadcasters must satisfy for televising
the UEFA Champions League. A ‘qualified broadcaster’
is a television broadcast organisation that holds a
television broadcast licence for the relevant territory and
that has the appropriate infrastructure, resources and
standing to broadcast UEFA Champions League pro-
gramming. Contracts for the award of the rights are
advertised on the UEFA website (www.uefa.com) at
appropriate times and all qualified broadcasters in the
contract territory are entitled to request the invitation to
bid documentation. All rights packages are, in principle,
put on the market at the same time.
(29) The invitation to bid documentation contains relevant
details of all rights packages together with key terms and
conditions and an explanation of the information which
interested parties must provide with their bid. All
qualified broadcasters are entitled to request a presen-
tation to explain the various rights packages on offer
and the sales process. All qualified broadcasters must be
given a reasonable time limit in which to submit their
bids.
L 291/32 EN 8.11.2003Official Journal of the European Union
(30) UEFA has indicated that it will evaluate the bids in
accordance with a number of objective criteria, including
in particular the following:
(a) price offered for the rights package or packages;
(b) acceptance by the bidder of all relevant broadcast
obligations;
(c) level of audience penetration of the bidder in the
contract territory;
(d) proposed method of delivery or transmission;
(e) proposed promotional support offered for the
UEFA Champions League;
(f) production capability and host broadcast expertise;
(g) combination of rights packages offered in the
contract territory;
(h) balance between free and pay television.
(31) Negotiations may take place with individual bidders on
the basis of offers received. The content of all offers
remains confidential.
3.4.1.3. R i g h t s p a c k a g i n g
(32) UEFA will offer its TV rights in several smaller packages
on a market-by-market basis. The precise format may
vary depending on the structure of the TV market in the
Member State in which the rights are being offered.
(33) UEFA will have the exclusive right to sell two main live
rights packages for free-TV or pay-TV each comprising
two matches per match night (
23
). UEFA Champions
League matches are currently played Tuesdays and
Wednesdays. The packages will usually include two
picks per match day. These two packages would cover
47 matches out of a total of 125. Consequently, when
the competition has reached the final stages the two
main live packages will absorb all TV rights of the UEFA
Champions League.
(34) UEFA will likewise initially have the exclusive right to
sell the remaining matches(
24
). UEFA has decided to
sell them for live pay-TV/pay-per-view exploitation.
However, if UEFA has not managed to sell the rights
within one week after the draw for the group stage of
the UEFA Champions League, UEFA will lose its exclu-
sive right to sell these TV rights. Thereafter, UEFA will
have a non-exclusive right to sell these TV rights in
(
23
) Referred to as package 1 and 2 and also as the Gold and Silver
packages in UEFA’s rights segmentation table.
(
24
) Referred to as package 4 in UEFA’s rights segmentation table.
parallel with the individual home clubs participating in
the match(
25
). UEFA’s rights segmentation means that
the football clubs selling the live TV rights comprised by
package 5 individually are restricted to sell these only to
pay-TV or pay-per-view exploitation.
(35) The right of UEFA and the individual football clubs to
sell these remaining matches will be subject to picks
made by the broadcasters having bought the main live
packages 1 and 2.
(36) UEFA will moreover have the exclusive right to sell a
highlight package covering all matches of the UEFA
Champions League available as of 22.45 on each match
night (
26
).
(37) Football clubs exploiting UEFA Champions League foot-
age individually must present the footage in a club-
focused manner and relating only to matches in which
they are participating. Broadcasters who exploit the TV
rights which are sold by the individual clubs are not
allowed to package such rights into a single product
which would appear as an UEFA Champions League
branded product. In particular regarding live TV rights,
UEFA defines an UEFA Champions League branded
programme as one consisting of more than two live
UEFA Champions League matches per day.
(38) As of Thursday midnight, that is to say, one day after
the last matches of the match week the football clubs
can exploit the deferred TV rights in parallel with UEFA.
UEFA exploitation must be related to action from
the whole UEFA Champions League competition. The
individual football clubs’ exploitation must be related
only to matches in which they participate. The individu-
ally sold matches must be ‘club branded’ and must not
be bundled with rights of other clubs to create an
alternative UEFA Champions League branded product.
In this context UEFA accepts programmes with delayed
TV rights on club channels containing 100 % UEFA
Champions League content. Regarding club magazine
programmes, UEFA defines a programme as UEFA
Champions League branded, when it contains more than
50 % UEFA Champions League content. In general
programming, a programme should not contain more
than 30 % UEFA Champions League content to avoid
being defined as UEFA Champions League branded.
Where an entire match is shown on a delayed basis (that
is to say, the full 90 minutes) on a club magazine
programme or in general programming then the respect-
ive 50 % and 30 % rule would not apply and the
programme could consist mostly or entirely of that
single match.
(
25
) Referred to as package 5 in UEFA’s rights segmentation table.
(
26
) Referred to as package 3 in UEFA’s rights segmentation table.
8.11.2003 EN L 291/33Official Journal of the European Union
(39) UEFA will have the exclusive right to sell live TV rights
outside the EEA. Deferred rights available to clubs are
subject to the same rules both inside and outside the
EEA.
3.4.2. Internet rights
(40) Both UEFA (in respect of all matches) and the football
clubs (in respect of matches in which they participate)
will have a right to provide video content on the Internet
one and a half hours after the match finishes, that is to
say, as from midnight on the night of the match. Live
streaming will not be made possible because of the
technical development of the Internet at this stage,
which does not permit the maintenance of a satisfactorily
high quality. This will of course change over time,
making it necessary to revisit the embargo in the
foreseeable future.
(41) UEFA will offer ‘competition specific’ or ‘UEFA branded’
products whereas the football clubs will offer ‘club
specific’ or ‘club branded’ products. For Internet rights
UEFA accepts club channel programmes containing
100 % UEFA Champions League content. Club magazine
programmes may contain no more than 50 % UEFA
Champions League content without being defined as a
UEFA Champions League branded product. In general
programming the maximum permissible UEFA Cham-
pions League content is 30 % of the programme. Where
an entire match is shown on a delayed basis (that is to
say, the full 90 minutes) on a club magazine programme
or in general programming then the respective 50 % and
30 % rule would not apply and the programme could
consist mostly or entirely of that single match.
(42) Both UEFA and the football clubs may choose to
provide their services themselves or via Internet service
providers. The content will be based on the raw feed
produced for television. UEFA intends to build a service
that will produce UEFA Champions League content for
streaming of moving pictures on the Internet. This
service can be exploited both via ‘www.uefa.com’ and
via the football clubs’ websites. UEFA will offer technical
expertise and know-how in the new media area to clubs.
(43) Clubs may acquire the raw feed from UEFA or they may
participate in the UEFA service. Clubs may customise
and edit the content for the purposes of creating a club
focused and club branded product. UEFA will apply its
principle of financial solidarity by redistributing the
revenues from new media. However, for theinitial three-
year period (seasons 2003/2004 to 2005/2006),football
clubs will not pay any solidarity fee for the raw feed but
only technical costs, a situation, which will be reviewed
at the end of the second season (2004/2005). Any fee
must be transparent and fair, reasonable and non-
discriminatory and submitted to an arbitration system
to solve possible disputes. UEFA will establish a revenue
sharing mechanism from the income generated from
‘www.uefa.com’.
3.4.3. Wireless 3G/UMTS rights
(44) Both UEFA (in respect of all matches) and the clubs(in
respect of matches in which they participate) will have a
right to provide audio/video content via UMTS services
available maximum 5 minutes after the action has taken
place (technical transformation delay). This content will
be based on the raw feed produced for television. UEFA
will apply a revenue sharing system in respect of the
income generated from the raw feed or the UMTS
content.
(45) UEFA intends to build a 3G/UMTS wireless product that
will be based on an extensive video database to be
developed by UEFA. UEFA will offer the rights on an
exclusive or non-exclusive basis to operator(s) with an
UMTS licence, initially and exceptionally for a period of
four years and subsequently for periods of three years.
(46) Clubs may acquire the raw feed from UEFA or they may
participate in the UEFA service. The clubs may customise
and edit the content for the purposes of creating a club
focused and club branded product. This product may
not consist solely or mostly of UEFA Champions League
content and must include other club-related multimedia
content as well. Clubs will pay a fee for the UEFA
wireless service and/or the raw feed. This fee must be
transparent and fair, reasonable, and non-discriminatory
and submitted to an arbitration system to solve possible
disputes.
3.4.4. Physical media rights
(47) Both UEFA and the football clubs are entitled to exploit
the physical media rights of DVD, VHS, CD-ROM, and
so forth to archive material from the previous UEFA
Champions League season with an embargo of 48 hours
after the final. While UEFA’s rights extend to all action
in the UEFA Champions League, the rights of the football
clubs include only action in which they participate.
3.4.5. Audio rights
(48) Both UEFA (in respect of all matches) and the football
clubs (in respect of matches in which they participate)
may sell licences to live radio broadcasting of UEFA
Champions League football matches on a non-exclusive
basis.
L 291/34 EN 8.11.2003Official Journal of the European Union
3.4.6. Other commercial rights
(49) UEFA also jointly sells other commercial rights relating
to the UEFA Champions League which associate third
parties with the UEFA Champions League brand such as
sponsorship rights, suppliership rights, licensing rights
and other intellectual property rights.
3.4.6.1. S p o n s or s h i p r i g h t s
(50) UEFA has a UEFA Champions League sponsorship
package, which comprises traditional elements of event
sponsorship with programme sponsorship and commer-
cial airtime in the event broadcasts. Sponsors purchase
a defined package of event rights including, among
others, elements such as perimeter boards, sponsor logo
identification on backdrops, tickets, advertisement in
each match day programme, sponsor identification
on tickets, use of official designations and the UEFA
Champions League logo.
(51) In addition, media rights are available to sponsors, which
consist, among others, of the broadcast sponsorship
rights for up to two sponsors per programme, billboards
in the opening and closing sequences of the UEFA
Champions League programmes as well as ‘break-
bumpers’ (
27
). They also get an option to purchase
commercial airtime in and around UEFA Champions
League programmes through UEFA.
3.4.6.2. S u p p l ie r s h i p r i g h t s
(52) In addition to the sponsorship rights, the UEFA Cham-
pions League concept allows for four supplier packages.
For example there is a computer and telecommuni-
cations supplier, which provides technical support to
the broadcast graphics service and, in return, receives
on-screen credits in all the European live match broad-
casts and during the highlights programme.
3.4.6.3. L i c e n s i n g r i g h t s
(53) The UEFA Champions League licensing concept allows
for selected companies to produce high quality products
related to the UEFA Champions League, for example,
UEFA Champions League video games, UEFA Cham-
pions League videos or UEFA Champions League CD-
ROM football encyclopaedias.
(
27
) A ‘break-bumper’ is an editorial graphic element at the beginning
and end of a commercial break, which is used to separate the
match programme from commercial spots. It normally includes
UEFA Champions League and sponsor identification.
3.4.6.4. O t he r i n t e l l e c t u a l p r o p e r t y
rights
(54) UEFA is the registered holder of various categories of
intellectual property right such as trademark and design
rights for example, the UEFA Champions League ‘Star-
ball’ logo, which is the recognised trademark of the
UEFA Champions League along with the UEFA Cham-
pions League music. The UEFA Champions League logo,
name, and the trophy have been protected astrademarks.
The official music, which was commissioned by UEFA,
forms part of the UEFA Champions League competition.
This anthem is always played with the television opening
and closing sequences as well as during the countdown
to kick-off in all UEFA Champions League stadiums
around Europe. UEFA holds the copyright in the music.
Clubs, which qualify for the UEFA Champions League,
may use the orthographic, musical and artistic forms
developed in connection with the UEFA Champions
League logo for non-commercial promotional purposes
for the duration of the competition.
4. THE RELEVANT MARKET
4.1. Product markets
4.1.1. UEFA’s submission
(55) UEFA submits that although the UEFA Champions
League is a very important sport event, it does not
constitute a separate relevant product market. UEFA
argues that it is part of a much wider market with a large
number of sports events in addition to the UEFA
Champions League, which allow broadcasters, sponsors
and suppliers to achieve the same commercial objective,
such as the national club football leagues. In addition,
there are other prestigious and quality sports events
on the market. Furthermore, non-sport content, in
particular, popular films, soapoperas and comedy shows
can also attract very sizeable audiences. UEFA moreover
argues that the Commission should differentiate between
UEFA Champions League matches involving domestic
clubs and UEFA Champions League matches not involv-
ing domestic clubs. UEFA also submits that the free-
TV market and the pay-TV market constitute distinct
relevant product markets.
4.1.2. The markets
(56) The Commission considers that the following markets
are relevant to an assessment of the effects of the joint
selling arrangements:
(a) the upstream markets for the sale and acquisition
of free-TV, pay-TV and pay-per-view rights;
8.11.2003 EN L 291/35Official Journal of the European Union
(b) the downstream markets on which TV broadcasters
compete for advertising revenue depending on
audience rates, and for pay-TV/pay-per-view sub-
scribers;
(c) the upstream markets for wireless/3G/UMTS rights,
Internet rights and video-on-demand rights, which
are emerging new media markets at both the
upstream and downstream levels that parallel the
development of the markets in the pay-TV sector;
(d) the markets for the other commercial rights namely
sponsorship, suppliership and licensing.
4.1.3. The upstream market for the acquisition of TV
broadcasting rights of football events played regularly
throughout every year
(57) Viewer preferences are decisive for all types of broad-
casters in their content acquisition policy as they deter-
mine the value of programmes to broadcasters (
28
).
All broadcasters are actual or potential buyers of TV
broadcasting rights of football events and football is
equally important to all broadcasters whichever the
market they operate in (
29
). Broadcasters acquire pro-
grammes in order to attract large audiences whether they
are financed fully or partially by advertising revenues (to
sell the opportunity to advertisers to get exposure to the
audience) or not (to comply with their public service
obligations). Pay-TV operators buy programmes to
entice people to subscribe to their services.
(58) The characteristics of programmes that can achieve a
desired purpose can delimit the ambit of the market for
the acquisition of TV broadcasting rights. Substitutability
can therefore be tested by analysing the extent to which
other programmes achieve this desired purpose. If a
specific type of content can regularly attract high
audience numbers, specific audiences or provide a
certain brand image, which cannot be achieved by means
(
28
) In a similar way as the customer substitutability determines the
upstream market for the supply of digital interactive TV services
by service providers to content providers, see Commission
Decision 1999/781/EC in Case IV/36.539 British Interactive
Broadcasting/Open (OJ L 312, 6.12.1999, p. 1).
(
29
) Commission Decision IV/M.553 — RTL/Veronica/Endemol (OJ
L 134, 5.6.1996, p. 32) and Commission Decision 1999/242/
EC — TPS (OJ L 90, 2.4.1999, p. 6).
of other content, it may be considered that such
content constitutes a separate relevant product market.
Consequently, there are no other programmes which
place a competitive restraint on the rights holders’ ability
to determine the price of these TV broadcasting rights.
(59) The Commission’s investigation of the situation
throughout the Community has gathered evidence sug-
gesting the existence of a separate market for the
acquisition of TV broadcasting rights of football events
that are played regularly throughout every year. That
conclusion represents an expansion of the conclusions
reached in previous cases.
(60) In the TPS case (
30
) the Commission found that it is
universally acknowledged that films and sporting events
are the two most popular pay-TV products and it
suggested that a separate market might exist for rights
to broadcast sports events. The Commission found that
sports programmes have particular characteristics; they
are able to achieve high viewing figures and reach an
identifiable audience, which is especially targeted by
certain advertisers. However, the Commission did not
adopt a precise definition of the market in that case.
(61) In the case regarding UEFA’s Broadcasting Regu-
lations (
31
), the Commission’s investigation suggested
the likelihood of the existence of a separate market for
the acquisition of TV broadcasting rights of football
events played regularly throughout every year. This
definition would, in practice, mainly involve national
first and second league and cup events as well as the
UEFA Champions League and the UEFA Cup. It was
suggested that a distinction could be made between
football events that do not take place on a regular basis
throughout the year. The reason is that the latter do not
constitute an equally regular source of programming for
broadcasters. Although the decision found that all
elements were present for the definition of a separate
market for the TV broadcasting rights of football events
played regularly throughout every year, the Commission
did not actually define the relevant product market in
that case.
(62) The Commission’s market investigation in the case
regarding the merger of the sports rights trading subsidi-
aries, Sport+ SNC and UFA Sports GmbH with the
Groupe Jean-Claude Darmon SA(
32
) demonstrated that
although sports broadcasting rights may constitute a
distinct field from other television programming, that
market ought to be further subdivided into other
separate product markets and that, at least within the
(
30
) Commission Decision 1999/242/EC — TPS (OJ L 90, 2.4.1999,
p. 6).
(
31
) Commission Decision 2001/478/EC — UEFA Broadcasting
Regulations (OJ L 171, 26.6.2001, p. 12).
(
32
) Commission Decision COMP/M.2483 — Canal+/RTL/GJCD/JV
(IP 01/1579).
L 291/36 EN 8.11.2003Official Journal of the European Union
EEA, football broadcasting rights may not be regarded
as substitutes to other sports broadcasting rights. The
Commission therefore concluded that there is a separate
market for the acquisition and resale of football broad-
casting rightsto events that are played regularly through-
out every year. In practice this involves matches in the
national leagues (primarily the first division) and cups,
the UEFA Champions League and the UEFA Cup. It was
concluded that events that take place more intermittently
are not part of that market definition (
33
).
(63) In the present case, the Commission also considers that
the relevant product market can appropriately be defined
as the market for the acquisition of TV broadcasting
rights of football events played regularly throughout
every year. This definition would in practice mainly
include national First andsecond division and cup events
as well as the UEFA Champions League and UEFA Cup.
The TV rights of football events create a particular brand
image for a TV channel and allow the broadcaster to
reach a particular audience at the retail level that cannot
be reached by other programmes. In pay-TV football is
a main driver of the sale of subscriptions. As regards free
TV, football attracts a particular consumer demographic
and hence advertising, which cannot be attracted with
other types of programming.
4.1.3.1. C h a n n e l b r a n d i m a g e
(64) Football is important to broadcasters due to its ability to
act as a developer of a brand image of a channel. Football
has a distinct high profile among desirable viewers.
Football generally provides high audience figures and
produces events which take place regularly throughout
most of the year (
34
). Viewers are attracted not only to
one match but also to the tournament as a whole.
Football tournaments, not least those that are branded
such as the UEFA Champions League, therefore guaran-
(
33
) In the same manner the Commission stated in the Newscorp/
Telepiù case, that there exists a separate market for the acquisition
of exclusive broadcasting rights for football events played every
year where national teams participate (the national league,
primarily first division and cups, the UEFA Champions League
and the UEFA Cup). Commission Decision COMP/M.2876 —
Newscorp/Telepiù, (IP/03/478).
(
34
) For example, in Germany the Bundesliga commences in August
and ends in May. There are 306 games played in the tournament,
which are all broadcast live throughout the season.
tee viewership for long periods and induce viewers
regularly to make an appointment to view a particular
channel, which they associate with football. This con-
tributes to developing the brand image of a channel.
(65) The development of a brand image is increasingly
important in a TV industry where the number of
channels among which the viewers can choose increases
rapidly and where products are generally homogen-
ised (
35
). With a wider choice available to viewers, it
becomes increasingly difficult for a TV channel to
attract and maintain audience loyalty. Branding therefore
encourages audiences to schedule their viewing habits
to make appointments to view a particular channel.
However, such loyalty may be achieved only by offering
a ‘differentiated’ product including eye-catching pro-
grammes and by strongly associating the channel with
those programmes. If a channel usually broadcasts
certain programmes, such as the UEFA Champions
League, which is in itself a strongly branded event,
viewers may develop a habit of screening that channel
as their first port of call in determining their viewing
choices. The creation of a brand loyalty to a channel
encourages viewers to use the channel as a ‘point of
reference’ for their viewing. This has beneficial effects on
other programmes broadcast by the channel.
(66) While the ability to build up brand loyalty to a particular
channel is important to all types of channels, it is
especially important for advertising-funded TV channels.
They must be able to present audiences to advertisers
for all their broadcasts otherwise they will not be able
to sell their advertising space. Football is particularly
attractive in that respect, because it has a wide following
with continuously high audience figures. Viewers want-
ing to watch a particular match may often switch to that
channel well in advance of the match and some of them
may ‘hang on’ after the match to see whether the
following broadcast is interesting. In some cases this is
reflected in the advertising rates that are high not only
in the advertising slots immediately before and after the
match but also in respect of the programmes that are
broadcast before and after the match.
(67) The Commission’s investigation has confirmed that the
development of a brand image is of particular import-
ance for broadcasters when determining whether or not
(
35
) Vlaamse Media Maatschappij state in an answer of 26 November
1999 to the Commission’s request for information that: ‘The
acquisition (and broadcasting) of sports rights (programmes) is,
in general not a profitable investment as such. However, the
broadcasting of sports programmes, especially popular sports
such as football and cycling, are important for the image and the
branding of the channel.’
8.11.2003 EN L 291/37Official Journal of the European Union
to acquire football rights (
36
). Broadcasters consider that
football enables them to create a brand image without
which their channels would not be able to develop. The
availability of alternative programming does not alter
their interest in or demand for broadcasting rights of
football events (
37
).
(68) One of the particular values of football for broadcasters
in brand building is its regularity. Unlike many other
sport events, football is characterised by national and
European tournaments which are played regularly
throughout most of the year. The UEFA Champions
League is one of the most recognised among those
tournaments with a strongly developed own brand.
Football, unlike other sports, therefore allows broad-
casters to achieve high viewing figures on a regular,
sustained and continuous basis if they can get access to
these rights. Although there are league events for
other sports and whilst such sports may produce large
audience figures, they do not achieve the same continued
viewing figures as football. This is of significant value
for the branding of a channel, since it can only be
achieved over a sustained period.
(69) The quest for a brand image is so strong that broadcasters
in certain circumstances do not mind losing money on
individual programmes if they are of such a quality
that they can pull viewers to the channel. For some
broadcasters football could be considered as a kind of
loss leader, because they may be willing to invest more
(
36
) RTL considers in its answer of 15 November 1999 to the
Commission’s request for information that ‘The actual prices for
football rights are so high that (...) they cannot be covered by the
revenues generated with football programming.’ If such rights
are still acquired anyway, it is reasonable to think that this is
because of branding purposes.
(
37
) NOS in its reply of 16 November 1999 to the Commission’s
request for information of 21 September 1999 considers that:
‘Only to a limited extent NOS’ interest in football is affected by
the availability of TV rights for other sports (...) because it is the
No 1 sports in the Netherlands (...) football plays a key role in
NOS’ sports programming (...) providing other sports broadcasts
by NOS with an audience they would not normally attract.’ NOS
also states that: ‘(...) football is a unique product in “a league of
its own”. No other sport has audience figures/market share that
come close to those of football (...) enhance the image of NOS.’
ONdigital in its reply of 23 November 1999 to the Commission’s
request for information of 20 September 1999: ‘Our interest in
football is not affected by the availability of other film, series,
game shows or other content again, because of the unique
market position football holds in the United Kingdom and partly
because football is likely to appeal to a different market segment.’
Richard Russell Associates have described sport as a ‘driver’ for
BSkyB’s 10-year old business in ‘Sports Television: The ever
changing face’, 16 February 1999, pp. 10 and 12.
in acquiring the TV rights than they can, strictly
speaking, hope to recuperate looking at the possible
revenues that they can make from the individual broad-
casts in isolation(
38
).
(70) These features of the TV rights of football have the
consequence that the prices which broadcasters are
willing to pay for those rights exceed all other prices,
including events such as Formula One (
39
). ONdigital
states that ‘Football rights are the most expensive of any
sport (...)’ (
40
) The total expenditure on sports as a
whole has recently seen substantial increases. Football
accounted for the single highest proportion of TV
channels’ total sports expenditure (
41
). The European
average was 44,6 % in 1998 (
42
). The high percentage
dedicated to the acquisition of TV rights of football
represents the importance which broadcasters attach to
football compared to the acquisition of the broadcasting
rights to other sporting events.
4.1.3.2. A p a r t i c u l a r a u d i e n c e
(71) In order to attract the widest possible audiences, broad-
casters will seek to have a balanced schedule with a
range of different programmes. Catering to a wide
audience is part of the public service remit for public
service broadcasters. Pay-TV broadcasters wish to cater
to the tastes of as many people as possible in order to
sell subscriptions. For commercial free-TV broadcasters
(
38
) In its reply of 26 November1999 to the Commission’s request for
information of 21 September 1999 Vlaamse Media Maatschappij
states that ‘Actually, acquisition of TV rights for sport (especially
football) is not a profitable operation as such (...). However...the
branding of VMM’s channels will be the decisive parameter for
deciding the acquisition of TV rights for football games.’ For
instance ONdigital, which has acquired the pay-TV rights to the
UEFA Champions League and provided these rights on a
promotional basis free to subscribers, states in its reply of
23 November 1999 to the Commission’s request for information
of 20 September 1999 that ‘In the early stages of platform
growth building the subscriber base is considered to be more
important than pure profit.’ Further in its reply ONdigital states
that ‘ONdigital believes that the brand image and value attached
to its consumer offer is directly affected by the sports content
available on the platform.’
(
39
) Kagan Euro TV Sports, 26 July 1996.
(
40
) ONdigital’s reply of 23 November 1999.
(
41
) According to Kagan’s ‘European media sports rights’, April 1999,
football took the major share of the total rights expenditure in
most Member States in 1998 (the share of the nearest rival is in
brackets): Austria 32,4 % (skiing 11,3 %); Belgium 53,6 %
(cycling 9,5 %); Denmark 45,4 % (handball 13,2 %); Finland
32,1 % (ice hockey 16,9 %); France 37,8 % (motor racing 9,3 %);
Germany 42 % (tennis 6,6 %); Greece 43,3 % (basketball 41,4 %);
Ireland 47 % (horse racing 13,1 %); Italy 65,2 % (motor racing
7,4 %); Netherlands 54,5 % (motor racing 9,3 %); Portugal 44,3 %
(motor racing 11,8 %); Spain 51,6 % (basketball 10,1 %); Sweden
39,5 % (ice hockey 19,1 %); United Kingdom 51,6 % (rugby
11,7 %).
(
42
) Kagan’s ‘European media sports rights’ April 1999.
L 291/38 EN 8.11.2003Official Journal of the European Union
the reason for having a balanced schedule is that they
generally sell ‘packages’ of advertising slots spread across
various programmes instead of individual slots during
particular programmes (
43
). Producers wishing to adver-
tise during for example, the UEFA Champions League
will also purchase slots during other types of pro-
grammes. This reflects the optimum strategy for an
advertiser whose aim is to reach as large a proportion of
its potential customers as possible. Showing adverts
across a range of carefully selected programmes, each
one of which will be watched by different potential
customer groups, is the best way to do this (
44
). The fact
that football is a regular and frequent event, which
attracts high viewing figures, enhances the value of
football programmes as part of an advertising package,
because it allows the advertiser to make frequent con-
tacts with a potential customer with a distinct profile.
(72) In deciding on a ‘package’, advertisers will not randomly
pick programmes during which to show their adverts.
The profile of the audience, which a programme attracts,
will be a crucial factor to be taken into account.
This reflects the ‘raison d’être’ of advertising: companies
essentially advertise in order to attract new customers or
to keep the existing ones. In order for an advert to fulfil
this purpose those who have at least a potential interest
in the product being shown must see it (
45
).
(73) Not all types of viewers are of equal value to broadcasters
(and advertisers). Some people watch more TV than
others do. People have different spending powers and
patterns. Amongst the most sought-after viewers are
men with an above-average spending power and who
are in the age groups of 16 to 20 and 35 to 40, because
those groups are generally considered to have a less
fixed spending pattern compared to older people. They
are therefore more likely to try new products and
services. The problem for broadcasters and advertisers is
that these groups contain a high proportion of ‘light
(
43
) ITV’s reply of 12 November 1999 to a request for information
of 10 September 1999.
(
44
) Thus a football boot producer will, for example, reach a larger
number of potential buyers by showing one advert during the
final of a football tournament, when ‘aficionados’ are likely to be
watching, and another during a feature film, when the weekend
player may be watching, than showing two adverts during the
football final. In this way a larger number of potential buyers
will be contacted.
(
45
) For example, whilst a producer of breakfast cereals may have a
broader target group, a meat producer is unlikely to wish to
place an advert during a programme dedicated to vegetarian
issues, even if this programme is very popular. Thus if broad-
casters wish to have the business of meat producers, they can
not only show programmes about vegetarianism, they must also
televise programmes which are watched by people who are at
least willing to eat meat (even if the programmes attract fewer
viewers).
viewers’ of television (
46
), who do not, as a rule, watch
much television. It is therefore much harder for adver-
tisers to get their message through to these target groups
via television advertising compared to other groups of
the population, for example, women aged 55 or over,
who on average watch a great deal more television. The
attractiveness, and elusiveness, of the target group make
programmes watched by them of significant value to
broadcasters that are keen to have programmes that
attract this audience.
(74) The Commission’s investigation of the situation in the
Member States has shown that football, which is a
mass attractive sport with high viewing figures, is the
programme, which seems to be the most effective tool
to address this particular group of the population. Two-
thirds of the viewers are male and in the appropriate age
groups (
47
).
(75) A result of football being a tool to reach a hard-to-get-
to audience is that broadcasters are able to charge
higher rates for advertising in connection with football
compared to other programmes. The price of advertising
slots during the transmission of football is higher than
during the transmission of other sports, for example, the
UEFA Champions League allows broadcasters to charge
premiums of between 10 to 50 % depending on the
teams involved and the stage of the tournament (
48
).
(76) The attraction of programmes and hence the level of
competition for the TV rights to them varies according
to the type of sport and the type of event. Mass
sports like football generally attract large audiences. By
contrast, minority sports achieve very low ratings. In
most Member States football constantly achieves the
(
46
) Channel 5’s reply of 19 November 1999.
(
47
) RTL considers in its reply of 15 November 1999 to the
Commission’s request for information of 20 September 1999
that it ‘would lose advertising revenue if it substituted the UEFA
Champions League by other football events or other sports
events. Even if the viewer profile would be the same, the viewing
times for these events would be much less because these sports
events are less attractive.’ Young & Rubicam Europe states in its
reply of 21 October 1999 to the Commission’s request for
information of 8 October 1999: product ‘categories targeting
female consumers are unlikely to advertise in sports pro-
grammes.’ Channel 5’s reply: ‘These (football) audiences are more
male in profile than the average, younger than the average, and
more upmarket than the average.’ ITV stated in its reply of
12 November 1999 to the Commission’s request for information
of 10 September 1999 that the audiences to the UEFA Cham-
pions League ‘are more male in profile than the average, younger
than the average and more upmarket than the average.’ McCann-
Erikson’s reply of 3 November 1999 to the Commission’s request
for information of 8 October 1999 supports this.
(
48
) McCann-Erickson’s reply of 3 November 1999 to a Commission
request for information of 8 October 1999.
8.11.2003 EN L 291/39Official Journal of the European Union
highest audience figures. In 1997, football accounted for
21 of the top 25 European sports broadcasts. The
popularity of football for viewers is also expressed in the
number of hours dedicated to the broadcast of sport.
Between 1996 and 1997, the number of hours dedicated
to football transmission was 13 939. The second most
transmitted sport was tennis which achieved less than
half this at 5 115 hours(
49
). These figures led the
authors of Kagan to comment that ‘the TV sports hours
breakdown illustrates soccer’s position as the most
valuable sport to cover’ (
50
). Kagan confirms its findings
in its 2002 report, where it states that: ‘Soccer is by far
the most popular programming on TV in Western
Europe, where it made up a massive 79 % of total sports
programming in 2000’ (
51
).
4.1.3.3. C o n c l u s i o n r e g a r d i n g t h e
upstream market
(77) The Commission’s investigation shows that there are no
programmes which place a competitive restraint on the
ability of the holder of the TV rights to football
events being played regularly throughout every year to
determine the price of these TV rights. TV rights to other
sports events or other types of programmes such as
feature films do not put a competitive restraint on the
holder of the TV rights to such football events. Including
such rights in the market definition would make the
definition too wide. In other words, there is no substitut-
ability between the TV rights to football and the TV
rights to other types of programmes.
(78) Some have suggested that narrower market definitions
may exist, such as for matches involving only national
clubs. Assuming that such market definitions were
correct, they would nevertheless not substantially alter
the market share of UEFA. As such it is not necessary to
consider such alternative market definitions for the
purposes of this case.
(79) The Commission therefore concludes that there is a
separate market for the acquisition of TV broadcasting
rights to football which is played regularly throughout
every year. This definition would, in practice, mainly
involve matches in national league and cup events as
well as the UEFA Champions League and UEFA Cup.
(
49
) Kagan Euro TV Sports, 26 July 1996, page 8.
(
50
) Kagan Euro TV Sports, 26 July 1996, page 163.
(
51
) Kagan World Media, 2002, page 3.
4.1.4. The downstream markets on which broadcasters
compete for advertising revenue depending on audi-
ence rates and pay-TV subscribers
(80) The acquisition of TV broadcasting rights of football
events is closely linked with the downstream television
markets in which the football events are broadcast as an
important element of the TV broadcasters’ competition
for advertisers on free-TV, which depends on viewer
interest/ratings and/or pay-TV subscribers, who may in
particular be enticed into subscribing to a TV channel
by means of football.
4.1.5. The upstream and downstream markets for the
acquisition of media rights for new media (wireless
3G/UMTS and Internet) of football
(81) UEFA’s joint selling arrangement is not limited to TV
rights, but also covers all other forms of media rights to
the UEFA Champions League. Although not addressed
in the Commission’s statement of objections, they were
included in UEFA’s amendments to the notified new
joint selling arrangement.
(82) Regarding the new media rights such as wireless and
Internet content rights, these markets are very much in
their infancy. This is largely due to the fact that
these technologies are currently at an early stage of
development and also to the lack of infrastructure,
which is presently available to deliver those services to
the consumers. Therefore, there is no clear empirical
evidence on which to base market definitions. It is
nevertheless possible to draw some conclusions, how-
ever broad, which would permit a realistic appraisal of
the restrictive effect of UEFA’s joint selling arrangement
on those new media markets.
(83) First, content rights will be necessary for the develop-
ment of the new services, in the same way as content
rights are necessary for TV broadcasting services, where
football content is being used to entice consumers to
take up pay-TV subscriptions and to attract advertisers
to TV channels. As these new services allow increasingly
narrowly targeted forms of content delivery, it will be
possible to identify and supply narrower customer
demands than is the case with current media delivery
systems. As such, it is likely that relatively narrow
upstream content markets will emerge, given the ability
to supply narrow downstream markets. It is therefore
likely that football content rights, in relation to TV
broadcasting, will also constitute a separate relevant
product market in relation to new media and that
football content will have a similar function. It is likely
that new media operators will wish to acquire football
content to attract advertisers and subscribers.
L 291/40 EN 8.11.2003Official Journal of the European Union
(84) Secondly, it is likely that each different form of exploi-
tation will provide a specific service to specific con-
sumers. On-demand services delivered via wireless
mobile devices or via the Internet will not compete with
live TV broadcasting. Likewise mobile clip services will
not compete with television highlights packages (
52
).
(85) It is therefore likely that new media markets will emerge
at both the upstream and downstream levels, which
parallel the development of markets in the pay-TV
sector.
4.1.6. The upstream and downstream markets for the other
commercial rights — sponsorship, suppliership and
product licensing
(86) UEFA jointly sells a number of other commercial
rights related to the UEFA Champions League such as
sponsorship, suppliership and product licensing. These
commercial rights are likely to form part of wider
product markets for commercial advertising. However,
since it is not likely that UEFA’s sale of these commercial
rights would appreciably restrict competition, it is not
necessary for the purposes of this case to exactly define
the scope of the relevant product markets.
4.2. The geographic markets
(87) UEFA submits that the geographic scope of the affected
markets is essentially national in character because of
cultural factors and national audience preferences.
4.2.1. The geographic scope of the upstream market
(88) Media rights to football events like the UEFA Champions
League are normally sold on a national basis. This is due
to the character of distribution, which is national due
to national regulatory regimes, language barriers, and
cultural factors. The Commission therefore considers the
geographic scope of the upstream markets for the media
rights to be national.
(89) The geographic scope of the relevant product markets
for the other commercial rights could be wider than
national as the sponsors, etc., associate themselves with
the UEFA Champions League as such and not with
individual football clubs. However, since it is not likely
that UEFA’s joint selling arrangement regarding these
(
52
) See Commission Decision Comp/JV.48 — Vodafone/Vivendi/
Canal+ (Vizzavi).
commercial rights would appreciably restrict compe-
tition, it is not necessary for the purposes of this case to
define exactly the geographic scope of the relevant
product markets.
4.2.2. The geographic scope of the downstream market
(90) The reasons for defining the geographic scope of the
upstream markets as national, such as varying regulatory
regimes, language barriers, and cultural factors, are
also decisive in the downstream market. A pay-TV
broadcaster normally only sells subscriptions to viewers
in a certain territory. TV advertising is normally adapted
to fit the tastes and languages of a certain territory. The
same would seem to apply to new media services. The
Commission therefore considers the geographic scope
of the downstream markets to be national or at least
confined to linguistic regions.
5. THIRD-PARTY OBSERVATIONS
(91)
The Commission publisheda notice inthe Official Journal
of the European Communities pursuant to Article 19(3) of
Regulation No 17, which prompted reactions from a
number of interested third parties.
(92) The football associations welcome the compromise.
G14, a European economic interest grouping whose 18
founding members are leading European football clubs,
in particular considers that theachievement of asegmen-
tation of media rights in separate windows addresses in
a satisfactory manner the objections raised by the
Commission. G14 moreover considers that the mix of
joint and individual sales strikes the right balance
between solidarity and protection of the consumer and
the freedom of individual clubs. G14 therefore supports
the compromise solution and the new marketing model
while emphasising that the implementation should
involve active participation of the parties concerned
within the decision-making bodies of UEFA.
(93) Some pay-TV broadcasters are concerned that the
reorganisation of the UEFA Champions League media
rights sales system will increase competition in the TV
broadcasting markets and that it therefore does not take
account of the current economic reality for pay-TV in
Europe. The reduction of exclusivity through the split-
ting up into several packages and short embargoes
reduce the value for broadcasters. They consider that a
sport event only has value when it is held in exclusivity
by one broadcaster. The segmentation of rights, which
the Commission strives for, risks reducing the value of
the event and could lead to more (too much) football on
TV and viewers having to buy several subscriptions.
They also fear competition from Internet/UMTS and
8.11.2003 EN L 291/41Official Journal of the European Union
wish for more restrictions imposed on new media rights,
inter alia, with longer embargoes, which would hold
back the development of these new media.
(94) Other free-TV broadcasters are positive to the oppor-
tunities created by the new solution and note, inter alia,
that whether the package solution will further the
opportunity for more than one free-TV broadcaster to
broadcast UEFA competitions will have to be proved in
practice. They note that the UEFA Cup already allows
more than one free-TV broadcaster to broadcast UEFA
competitions. A free-TV broadcaster states that it is
unable to determine on the basis of the facts provided
whether the new system would, in practice, alleviate the
concerns risen in the statement of objections. It is
however, concerned about the reduced level of exclusiv-
ity created by the packaging. The third package of live
rights is of no real value to broadcasters as the national
games by definition will be included in the Gold and
Silver packages.
(95) One sport rights agency congratulates UEFA and the
Commission for having agreed on a compromise that
generally accepts the principle of joint selling. It con-
siders that this principle guarantees the attraction of the
product and the ‘UEFA Champions League’ brand as
being in the consumers’ interest and is best fitted to
reconcile all the different interests at stake. However, it
regrets the deviation from the joint selling principle
created by package 5, as this may negatively influence
the UEFA Champions League brand.
(96) Other sport rights agencies are not convinced that
the compromise solves the issues objected to by the
Commission regarding the TV broadcasting rights to
football events, which represent 15 to 40 % of the value
of broadcasting rights to regular football events. They
argue that a joint selling arrangement is not necessary to
establish the UEFA Champions League as a brand. Nor
do they consider that solidarity or that a single point of
sale are relevant arguments under Article 81(3). They
further argue that the compromise is likely to serve as a
model for other football competitions, including for the
UEFA Cup. They consider that packages 1 and 2 will
contain all commercially valuable matches whereas
matches contained inpackage 5 havevery little commer-
cial value. OnlyUEFA can market a wireless and Internet
service covering the whole UEFA Champions League. In
addition, football clubs are restricted in marketing
club branded and related services. They are therefore
concerned that clubs may not create a product compet-
ing with the UEFA Champions League. Finally, they
point out that clubs must pay a fee for the raw feed and
that Internet rights are available only at midnight.
(97) A telecommunications operator that has interests infree-
TV, Internet and wireless welcomes the Commission’s
initiative of opening the market for the sale of the
UEFA Champions League media rights. It considers
that packages 1 and 2 should be unbundled allowing
broadcasters to bid for single matches and that, at least,
a broadcaster should be prevented from bundling the
two packages. It also argues that the same package
should be sold to both a free-TV and a pay-TV broad-
caster. It furthermore considers that TV broadcasters
should be allowed to resell the rights to ISPs and wireless
providers.
(98) Internet services providers would like to have live rights.
They consider that the embargo is too long for deferred
exploitation and that Internet and TV are two distinct
markets. They regret that deferred rights are reserved for
UEFA and the football clubs and that Internet service
providers are excluded from competing for the rights.
(99) Only one national competition authority has submitted
comments to the Commission. It considers that the
compromise does not resolve the problems identified in
the statement of objections and as such does not qualify
for exemption. It considers that on the horizontal level
the UEFA arrangement remains restrictive of compe-
tition as UEFA continues to maintain the exclusive right
to sell all matches. In respect of the vertical level the
new commercial model does not alleviate competition
concerns, as the two main packages are still effectively
only within the reach of large broadcasters. It moreover
considers that the football clubs’ sale of package 5 to
pay-TV/pay-per-view is an illusion as in Germany there
is only one pay-per-view broadcaster.
(100) Finally, radio broadcasters query how UEFA is able to
sell radio rights in view of the right of information of
the public. They argue that the right of the public to
have access to information cannot be considered as a
market like TV.
L 291/42 EN 8.11.2003Official Journal of the European Union
(101) UEFA was informed that, on the basis of the third party
comments, the Commission had identified certain issues
where a modification of the compromise would be
required. The issues raised by the third party comments
were discussed with UEFA in a number of meetings and
gave rise to an exchange of correspondence following
which UEFA agreed to amend its joint selling arrange-
ment to accommodate those comments. The modifi-
cations relate, in particular, to restrictions imposed on
football clubs’ individual sale of media rights (for
example, bundling, field of use restrictions) and achiev-
ing a more equitable balance between and mix of joint
and individual selling. Also Internet service providers are
granted better access to content.
6. APPLICATION OF ARTICLE 81 OF THE TREATY
AND ARTICLE 53 OF THE EEA AGREEMENT
6.1. Jurisdiction
(102) In this case, the Commission is the competent authority
to apply both Article 81(1) of the Treaty and
Article 53(1) of the EEA Agreement on the basis of
Article 56 of the EEA Agreement, since UEFA’s joint
selling arrangement has an appreciable effect on compe-
tition in the common market as well as on trade between
Member States.
6.2. Article 81(1) of the Treaty and Article 53(1)
of the EEA Agreement
(103) Article 81(1) of the Treaty prohibits as incompatible
with the common market all agreements between under-
takings, decisions by associations of undertakings and
concerted practices, which may affect trade between
Member States and which have as their object or effect
the prevention, restriction or distortion of competition
within the common market.
(104) Article 53(1) of the EEA Agreement (which is modelled
on Article 81(1) of the Treaty) contains a similar
prohibition. However, the reference in Article 81(1) of
the Treaty to ‘trade between Member States’ is replaced
by a reference to ‘trade between contracting Parties’
and the reference to competition ‘within the common
market’ is replaced by a reference to competition ‘within
the territory covered by the ... (EEA) Agreement’.
6.3. Agreements or decisions between undertak-
ings and associations of undertakings
(105) The Court of Justice has ruled that, having regard to
the objectives of the Community, sport is subject to
Community law to the extent it constitutes an economic
activity within the meaning of Article 2 of theTreaty (
53
).
(106) Football clubs engage in economic activities (
54
) and they
are undertakings within the meaning of Article 81(1) of
the Treaty and Article 53(1) of the EEA Agreement.
The membership of the national football associations
consists of those football clubs. The national football
associations are therefore associations of undertakings
within the meaning of Article 81(1) of the Treaty and
Article 53(1) of the EEA Agreement. The national
football associations are also undertakings themselves in
so far as they engage in economic activities (
55
). The
members of UEFA are the national football associations.
UEFA is therefore both an association of associations of
undertakings as well as an association of undertakings.
UEFA is moreover an undertaking in its own right as it
also engages directly in economic activities.
(
53
) See judgments of the Court of Justice in Case 36/74, Walrave v
Union Cycliste Internationale, [1974] ECR 1405, paragraph 4; Case
13/76, Donà v Mantero, [1976] ECR 1333, paragraph 12; Case
C-415/93, URBSF v Bosman, [1995] ECR I-4921, paragraph 73;
Joined Cases C-51/96 and C-191/97, Christelle Deliège v Ligue
francophone de judo et disciplines associées ASBL, Ligue belge de judo
ASBL, Union Européenne de judo (C-51/96) and François Pacquée
(C-191/97) [2000] ECR 2549, paragraphs 41 and 42; Case
C-176/96, Jyri Lehtonen and Castors Canada Dry Namur-Braine
ASBL v Fédération royale belge des sociétés de basket-ball ASBL
(FRBSB), [2000] ECR 2681 paragraphs 32 and 33.
(
54
) For example, selling tickets, transferring players, distributing
merchandising articles, concluding advertising and sponsorship
contracts, selling broadcasting rights, etc. The size of the
undertaking does not matter and the concept does not presup-
pose a profit-making intention. See opinion of Advocate General
Lenz in Case C-415/93, URBSF v Bosman, [1995] ECR I-4921,
paragraph 255 referring to the judgment in Joined Cases 209 to
215 and 218/78, Van Landewyck v Commission [1980] ECR 3125,
paragraph 88.
(
55
) Opinion of Advocate General Lenz in Case C-415/93, URBSF v
Bosman, [1995] ECR I-4921, paragraph 256. Commission
Decision 92/521/EEC — Distribution of package tours during
the 1990 World Cup, OJ L 326, 12.11.1992, p.31, paragraph 49:
‘(...) FIFA is an entity carrying on activities of an economic nature
and constitutes an undertaking within the meaning of Article 85
of the EEC Treaty’ and paragraph 53: ‘The (Federazione Italiana
Gioco Calcio = the national Italian football association) also
carries on activities of an economic nature and is consequently
an undertaking within the meaning of Article 85 of the EEC
Treaty’. Judgment in Case T-46/92, Scottish Football Association v
Commission, [1994] ECR II-1039, from where it can be concluded
that the Scottish Football Association is an undertaking or an
association of undertakings within the meaning of Article 81
and 82. See also joined Cases C-51/96 and C-191/97, Christelle
Deliège v Ligue Francophone de Judo et Disciplines ASBL and Others,
[2000] ECR 2681 paragraphs 52-57, Case T-513/93 Consiglio
Nazionale degli Spedizionieri Doganali v Commission of the European
Communities ECR [2000] II-1807.
8.11.2003 EN L 291/43Official Journal of the European Union
(107) Notwithstanding the fact that some of these entities are
non-profit making bodies, UEFA, the national football
associations and the football clubs are all undertakings
within the meaning of Article 81(1) of the Treaty and
Article 53(1) of the EEA Agreement.
(108) Article 81(1) of the Treaty and Article 53(1) of the EEA
Agreement are applicable to associations of undertakings
in so far as:
— the activities of the association or of the undertak-
ings belonging to the association are calculated to
produce the results which Article 81(1) of the
Treaty and Article 53(1) of the EEA Agreement aim
to suppress (
56
), and/or
— the association intended to and did coordinate the
conduct of its members on the market (
57
).
(109) The Regulations of the UEFA Champions League consti-
tute a decision taken by an association of associations of
undertakings within the meaning of Article 81(1) of the
Treaty and Article 53(1) of the EEA Agreement (
58
).
(110) The Regulations of the UEFA Champions League provide
the regulatory basis for the manner in which the
commercial rights of the UEFA Champions League are
sold. UEFA’s Executive Committee adopts the Regu-
lations of the UEFA Champions League. UEFA’s Con-
gress, the membership of which consists of the national
football associations of which the football clubs are
members, appoints the Executive Committee. The Regu-
lations of the UEFA Champions League are binding on
the national football associations and on the football
clubs. The football clubs playing inthe UEFA Champions
League, which are co-owners of the commercial rights
of the UEFA Champions League, confirm the binding
nature of the UEFA Statutes, the Regulations of the
UEFA Champions League and other decisions relevant
to the competition taken by the competent bodies of
UEFA, referred to in the entry form, which they sign
when they sign up for participation in the UEFA
Champions League.
(111) In agreement with the aforementioned competent bodies
of UEFA, associations and football clubs, UEFA adopted
a new joint selling arrangement regarding the UEFA
Champions League media rights, the content of which is
summarised above under sections 1.4 to 1.6.
(112) UEFA will, in the future, conclude rights contracts with
third parties on the basis of the principles enshrined in
the notified joint selling arrangement. The vertical
rights agreements with television broadcasters that were
(
56
) Joined Cases 209 to 215 and 218/78 Fedetab, 1980 [ECR] 3125
at paragraph 88.
(
57
) Case 45/85 Sachversicherer at paragraph 32.
(
58
) If the Statutes were categorised as an agreement between
undertakings, this would not change the situation since
Article 81(1) of the Treaty and Article 53(1) of the EEA
Agreement apply in the same way to both categories. See Case
C-415/93, URBSF vBosman, [1995] ECR I-4921 at paragraph 46.
originally notified are no longer applicable following the
introduction of the new joint selling arrangement and
will therefore not be addressed in this Decision.
6.4. Restriction of competition
(113) The notified joint selling arrangement grants UEFA the
exclusive right to sell jointly certain commercial rights
on behalf of the football clubs participating in the UEFA
Champions League. This includes media rightsthat relate
to the UEFA Champions League as a whole and involving
action from all matches of the UEFA Champions League.
Those media rights, which are listed in section 1.6
above, relate to all types of media rights and are not
restricted to the rights for specific markets. As such, the
restrictive effects of UEFA’s joint selling arrangement are
capable of manifesting themselves on any of the markets
where the rights could be used.
(114) UEFA’s joint selling arrangement has the effect that
through the agreement to jointly exploit the commercial
rights of the UEFA Champions League on an exclusive
basis through a joint selling body, UEFA, prevents the
individual football clubs from individually marketing
such rights. This prevents competition between the
football clubs and also between UEFA and the football
clubs in supplying in parallel media rights to the UEFA
Champions League to interested buyers in the upstream
markets. This means that third parties only have one
single source of supply. Third-party commercial oper-
ators are therefore forced to purchase the relevant rights
under the conditions jointly determined in the context
of the invitation to bid, which is issued by the joint
selling body. This means that the joint selling body
restricts competition in the sense that it determines
prices and all other trading conditions on behalf of all
individual football clubs producing the UEFA Cham-
pions League content. In the absence of the joint selling
agreement the football clubs would set such prices
and conditions independently of one another and in
competition with one another. The reduction in compe-
tition caused by the joint selling arrangement therefore
leads to uniform prices compared to a situation with
individual selling.
(115) UEFA’s joint selling arrangement also has the effect that
certain restrictions are imposed on football clubs in
respect of the exploitation of those commercial rights
that they have not granted to UEFA for joint selling, but
which are exploited by themselves individually. The
restrictions imposedon individual football clubs concern
in particular:
(a) a restriction on football clubs’ individual selling of
live TV rights, which restricts them to selling such
live rights only to pay TV/pay-per-view broad-
casters and prevents the sale of such rights to
free-TV broadcasters (package 5 of the rights
segmentation table);
L 291/44 EN 8.11.2003Official Journal of the European Union
(b) embargoes on the exploitation of deferred media
rights, in particular TV and Internet rights, (pack-
ages 6, 7 and 12 of the rights segmentation table);
(c) a limitation on the bundling of individually sold
live and deferred media rights restricting the foot-
ball clubs from selling their individually sold media
rights to end-users (broadcasters) which would
exploit those rights as a UEFA Champions League
focused product (packages 5, 6, 11 and 12 of the
rights segmentation table).
(116) UEFA’s joint selling arrangement therefore restricts
competition in the upstream markets not only between
football clubs but also between UEFA and the football
clubs in supplying commercial rights to interested
buyers. In addition, the notifiedjoint selling arrangement
has an impact on the downstream broadcasting markets
as football events are an important element of TV
broadcasters’ competition for advertisers or for sub-
scribers for pay-TV and pay-per-view services. Such
an arrangement has as its effect the restriction of
competition. It is therefore also caught by the prohib-
ition in Article 81(1) of the Treaty and Article 53(1) of
the EEA Agreement (
59
).
6.4.1. Scope of the present procedure
(117) Under the new sales policy the media rights are no
longer all offered to a single operator but are split up
into a large number of smaller rights packages. It is not
the object of the present procedure to ascertain whether
individual rights contracts between UEFA and a broad-
caster would restrict competition within the meaning of
Article 81(1) of the Treaty and Article 53(1) of the EEA
Agreement. Nor is it possible to ascertain in the context
of the present procedure whether competition would be
restricted if a single operator acquired several packages
of rights. This decision will therefore not deal with the
individual rights contracts concluded by UEFA with
third parties and does not in any way prejudice their
evaluation under Community competition law.
6.5. Applicability of Article 81(1) of the Treaty or
Article 53(1) of the EEA Agreement
6.5.1. League rights and individual football clubs’ rights
(118) For each individual football match played in the UEFA
Champions League, the two participating football clubs
may claim ownership to the commercial rights. This is
(
59
) See chapter 5 (in particular chapter 5.3.1.2) of the Commission’s
guidelines on the applicability of Article 81 to horizontal
cooperation agreements (OJ C 3, 6.1.2001, p. 2).
because it would be difficult to deny that an individual
home club, as user of the football ground, has the right
to deny admission to media operators wishing to record
those matches. Likewise, it would be difficult to deny
that the visiting club, as a necessary participant in the
football match, should have some influence as to
whether the match should be recorded and, if so, how
and by whom.
(119) Looking at a whole football tournament, it would seem
that each football club would have a stake in the rights
in the different constellations in which they play but
their ownership could not be considered to extend
beyond that. Therefore, there are in a football tourna-
ment a large number of individual ownership constel-
lations that are independent of one another. The fact
that football clubs play in a football tournament does
not mean that ownership extends to involve all matches
in the tournament. Nor does it mean that ownership is
inter-linked to an extent where it must be held that all
clubs have an ownership share in the whole league as
such and in each individual match.
(120) UEFA argues that it is UEFA’s intellectual efforts and
organisational responsibility that have created a football
league with its own brand image distinct from that of
the participating football clubs. Therefore, without any
joint selling arrangement, no commercial rights would
be available at all. UEFA argues that it is the owner of
the UEFA Champions League property rights due to the
tasks it undertakes. To the extent UEFA is selling its own
property, Article 81(1) of the Treaty and Article 53(1) of
the EEA Agreement are inapplicable. According to
UEFA, the case therefore does not concern the joint
selling arrangement but the terms on which the rights
are sold to third parties. UEFA consequently argues that
as long as these terms do not restrict competition, there
is no infringement of Article 81(1) of the Treaty or
Article 53(1) of the EEA Agreement.
(121) UEFA moreover argues that if UEFA cannot be con-
sidered as the sole owner of the property rights, it should
be considered a ‘co-owner’ of the rights. Therefore,
according to UEFA, the notified jointselling arrangement
is fundamentally different from any conventional joint
selling arrangement inwhich the individual undertakings
pool individually owned rights which they sell jointly,
as UEFA, in this case, also exploits its own property
8.11.2003 EN L 291/45Official Journal of the European Union
rights. UEFA is stresses its view on the property rights
situation with reference to the situation in the individual
Member States (
60
).
(122) The Commission takes note of the fact that there is no
common uniform concept in the EEA Member States
regarding the ownership of the property media rights to
football events nor is there any Community or EEA law
concept (
61
). It is true that if UEFA were the sole owner
of the rights in a Member State no horizontal restriction
of competition would occur from UEFA selling the
commercial rights. However, on the basis of the infor-
mation submitted by UEFA, UEFA can at best be
considered as a co-owner of the rights, but never the
sole owner. The question of ownership is for national
law and the Commission’s appreciation of the issue in
this case is without prejudice to any determination by
national courts.
(
60
) In a reply of 16 February 2001 to the Commission’s request for
information of 15 November 2000, UEFA explains the situation
regarding ownership to the TV rights in the EEA States is as
follows: In Austria, the home club is recognised as the owner of
the TV rights. Belgian legislation does not determine ownership
to the TV rights to football. Danish legislation does not determine
ownership, but in a concrete case the Danish competition
authorities have allegedly stated that they consider that the TV
rights of a match played in the Danish National Championship
belong to the Danish Football Association, as the owner of the
tournament, and the home club of the specific match jointly.
English legislation is silent about the matter. The Finnish clubs
are the owners to the TV rights to the matches of the Finnish
club competitions. In France it is the club participating in the
European tournament, which is the owner. In Germany, the
clubs are the owners of the rights and the organiser, UEFA, could
be considered to be a co-owner. According to Greek and Italian
legislation the clubs are the owners of the TV rights. Luxembourg
legislation is silent about the matter. Dutch case-law (under
appeal) gives the ownership of the TV rights to the home club.
In Northern Ireland, according to the Irish Football Association,
the association owns the rights to the national league (no legal
source quoted), however, the clubs themselves sell the TV rights
to matches in European competitions. Portuguese legislation
does not regulate the matter. In the Republic of Ireland it seems
that the national association is the owner of the TV rights, but
the TV rights to the European competitions are disposed of
without interference from the football association. No infor-
mation regarding the legislative situation in Scotland has been
given. Reference is only made to the bylaws of the Scottish
Football Association which claim ownership to the rights.
Spanish legislation has not taken a position on the ownership
issue. The clubs in the First and Second Division sell the rights
individually. Swedish legislation is silent about the matter. No
information has been submitted regarding the legal situation in
Wales.
The Commission has asked the national football association in
Iceland, Liechtenstein and Norway directly: In Iceland and
Liechtenstein it is the clubs participating in the European
competitions, which are considered as the owner. In Norway the
individual clubs seem to be recognised as the owner of the TV
rights.
(
61
) Article 295 of the Treaty provides that: ‘The Treaty shall in no
way prejudice the rules in Member States governing the system
of property ownership.’
(123)
The Commission therefore proceeds on the basis that
there is co-ownership between the football clubs and
UEFA for the individual matches, but that the co-
ownership does not concern horizontally all the rights
arising from a football tournament. It is not considered
necessary for the purpose of this case to quantify the
respective ownership shares.
(124) It suffices to note that there are multiple owners of the
media rights to the UEFA Champions League. An
agreement between the three owners (the two football
clubs and UEFA) which are indispensable to produce
one unit of output (the licence to broadcast one match)
would not be caught by Article 81(1) of the Treaty and
Article 53(1) of the EEA Agreement. However, since the
agreement regarding UEFA’s joint selling arrangement
extends beyond that, Article 81(1) of the Treaty and
Article 53(1) of the EEA Agreement apply to the
arrangement.
6.5.2. The special characteristics of sport
(125) UEFA is of the opinion that it is not appropriate to
evaluate the relationship between football clubs with a
‘free play of competition’ test, as football clubs are not
truly independent competitors. UEFA considers that this
test may be valid to evaluate the merits of an agreement
between independent business entities that would com-
pete with one another under normal circumstances.
(126) Furthermore according to UEFA, Article 81(1) of the
Treaty and Article 53(1) of the EEA Agreement are not
applicable because the structure and operation of the
UEFA Champions League serves to promote and not
to restrict competition in European football. UEFA
considers that the model of financial solidarity helps to
maintain a balance between clubs and to encourage
recruitment of young players, which serves to promote
competition in European football. As a result of the
financial policies implemented by UEFA, competition
between clubs in Europe is enhanced and the number of
competitors on the market is increased.
(127) The Court of Justice has ruled that, having regard to
the objectives of the Community, sport is subject to
Community law to the extent it constitutes an economic
activity within the meaning of Article 2 of theTreaty (
62
).
(
62
) See judgements in Case 36/74, Walrave v Union Cycliste Internatio-
nale, [1974] ECR 1405, paragraph 4; Case 13/76, Donà v
Mantero, [1976] ECR 1333, paragraph 12; Case C-415/93,
URBSF v Bosman, [1995] ECR I-4921, paragraph 73; Joined
Cases C-51/96 and C-191/97, Christelle Deliègev Ligue francophone
de judo et disciplines associées ASBL, Ligue belge de judo ASBL, Union
Européenne de judo (C-51/96) and François Pacquée (C-191/97),
[2000] ECR 2549, paragraphs 41-42; Case C-176/96, Jyri
Lehtonen and Castors Canada Dry Namur-Braine ASBL v Fédération
royale belge des sociétés de basket-ball ASBL (FRBSB), [2000] ECR
2681 paragraphs 32-33.
L 291/46 EN 8.11.2003Official Journal of the European Union
(128) UEFA and the football clubs are economic competitors
in selling commercial rights (property rights and media
rights) to football matches. If there were no joint selling
arrangement these parties would be selling the rights
individually and in competition with one another.
(129) In fact, the object of the notified agreement is not the
organisation of the UEFA Champions League but the
sale of the commercial rights of the UEFA Champions
League. The Commission is aware that some form of
cooperation among the participants is necessary to
organise a football league and that there is, in this
context, certain interdependence among clubs. This
interdependence between all clubs does not, however,
extend to all activities of the UEFA Champions League
participants. Clubs already compete in the areas of
sponsorship, stadium advertising and merchandising.
Clubs also compete for players. Consequently, the
decision of an association of associations of undertakings
to sell the commercial rights jointly on behalf of its
members, which is an area in which the clubs are
economic competitors, is not necessary in terms of
Article 81(1) of the Treaty and Article 53(1) of the EEA
Agreement to stage a football league. These provisions
are therefore applicable to such an arrangement. Any
need to take the specific characteristics of sport into
account, such as the possible need to protect weaker
clubs through a cross-subsidisation of funds from the
richer to the poorer clubs, or by any other means, must
be considered under Article 81(3) of the Treaty and
Article 53(3) of the EEA Agreement.
(130) According to UEFA, its joint selling arrangement is a
prerequisite for the existence of the UEFA Champions
League. UEFA would not organise the UEFA Champions
League without its joint selling arrangement and without
being able to redistribute the revenues. UEFA considers
that the joint selling arrangement does not impede trade
between Member States and that the redistribution of
revenue by UEFA serves to enlarge the competitive base
in European football. In UEFA’s view, its financial policy
pursues objectives that have been recognised by the
Court of Justice in the Bosman case (
63
), that is to say, the
objective of maintaining a balance between clubs by
preserving a certain degree of equality, and encouraging
the recruitment of players.
(131) The Commission fully endorses the specificity of sport,
as expressed for example in the declaration of the
European Council in Nice in December 2000. On that
occasion the Council encouraged the mutualisation of
part of the revenue from the sales of TV rights, at the
appropriate levels, as beneficial to the principle of
solidarity between all levels and areas of sport. However,
while UEFA’s interest in the commercial aspects is
understandable, it has not demonstrated that a joint
selling arrangement is an indispensable prerequisite for
(
63
) Case C-415/93, URBSF v Bosman, [1995] ECR I-4921.
the redistribution of revenue. The UEFA Cup demon-
strates that a pan-European football competition can
exist without a joint selling arrangement for the sale of
the TV rights, as in this case the individual football clubs
are selling the TV rights individually. There are also
national examples of this in Spain, Italy and Greece. A
redistribution of revenue can be undertaken in other
ways without being linked to any joint selling arrange-
ment. It can be implemented through a taxation system
or through voluntary contributions. Article 81(1) of the
Treaty and Article 53(1) of the EEA Agreement are
therefore applicable to such a joint selling arrangement.
In any event it is more appropriate to consider any
such argument under Article 81(3) of the Treaty and
Article 53(3) of the EEA Agreement.
6.5.3. Appreciability of the restriction on competition
(132) In assessing the appreciability of the restrictions of
competition, the Commission notes that premium
sports, in particular football, are regarded as one of
the main drivers of television. UEFA sold the UEFA
Champions League TV rights for more than
CHF 800 million in 1999 (EUR 526 million). In the
1999/2000 season in a Community-wide average, the
UEFA Champions League accounted for around 20 % of
the money paid for TV rights of football events by
broadcasters (
64
). Bearing in mind that football accounts
for the single highest proportion of TV channels’ sports
expenditure (
65
), the Commission considers that the
effect of UEFA’s joint selling arrangement is to bring
about an appreciable restriction of competition in the
broadcasting market.
6.6. Effect on trade between Member States
(133) Article 81(1) of the Treaty is aimed at agreements which
might harm the attainment of a single market between
the Member States, whether by partitioning national
(
64
) This figure is calculated on the basis of the acquisition of
domestic and UEFA tournaments. Source: A study commissioned
by UEFA from Oliver & Ohlbaum Associates, London.
(
65
) See footnote 41.
8.11.2003 EN L 291/47Official Journal of the European Union
markets, or by affecting the structure of competition
within the common market. Similarly, Article 53(1) of
the EEA Agreement is directed at agreements that
undermine the achievement of a homogeneous Euro-
pean Economic Area.
(134) The commercial rights of the UEFA Champions League
are sold throughout the EEA. UEFA’s joint selling
arrangement therefore affects trade between Member
States. If the media rights were sold by the individual
football clubs or on a non-exclusive basis, it would
change the flow of trade in the TV rights.
(135) The UEFA Champions League is the most prestigious
pan-European club football tournament, involving 32 of
the best European clubs. The agreement establishing the
joint selling arrangement between the football clubs
participating in the UEFA Champions League has an
appreciable effect on trade between Member States.
7. ARTICLE 81(3) OF THE TREATY AND
ARTICLE 53(3) OF THE EEA AGREEMENT
(136)
In evaluating the restrictions of competition created by
UEFA’s joint selling arrangement pursuant to the criteria
for exemption set out in Article 81(3) of the Treaty and
Article 53(3) of the EEA Agreement, the Commission
has considered the benefits generated by the restrictive
arrangement. Where the benefits are such as to offset
the restrictive effects, then an exemption under
Article 81(3) of the Treaty and Article 53(3) of the EEA
Agreement is justified.
(137) The assessment required under Article 81(3) of the
Treaty and Article 53(3) of the EEA Agreement is
therefore whether the benefits generated by the notified
joint selling arrangement outweigh the negative effects
that it deploys, namely:
(a) the grant by the football clubs to UEFA of the
exclusive right to sell certain of the commercial
rights relating to the UEFA Champions League;
(b) the restrictions agreed to by the football clubs in
selling their commercial rights individually.
(138) Article 81(3) of the Treaty and Article 53(3) of the EEA
Agreement provide that the provisions of Article 81(1)
of the Treaty and Article 53(1) of the EEA Agreement
respectively may be declared inapplicable to any agree-
ments between undertakings which contribute to
improving the production or distribution of goods or
to promoting technical or economic progress, while
allowing consumers a fair share of the resulting benefit,
and which do not impose onthe undertakings concerned
restrictions which are not indispensable to the attain-
ment of these objectives, nor afford such undertakings
the possibility of eliminating competition in respect of a
substantial part of the products in question. The follow-
ing sections contain an assessment in relation to each of
those four conditions.
7.1. Improvement in production or distribution
and/or promoting technical or economic progress
(139) UEFA considers that its joint selling arrangement facili-
tates the business operations of UEFA’s commercial
partners by creating a single point of sale. The creation
of a single point of sale is of particular interest for an
international tournament such as the UEFA Champions
League, because this tournament involves a great number
of football clubs from many different countries. In
addition to the practical difficulties that may create,
there is moreover the issue that the ownership structures
vary from Member State to Member State with the
possibility of the presence of multiple different co-
owners of the media rights to each match. Furthermore,
there is dispersed demand from broadcasters who are
likewise of different nationalities and operating in many
different national markets.
(140) Moreover, UEFA argues that the creation of a single
point of sale is a prerequisite for the existence of the
UEFA Champions League product. Since no individual
club knows before the start of the season how far it will
get in the tournament it could not sign a commercial
agreement with a broadcaster giving the broadcaster any
certainty that the football clubs will make it to the very
end of the UEFA Champions League season. This
provides an element of uncertainty for broadcasters.
Similarly, joint selling of the rights by UEFA allows
sponsors and other suppliers to receive a uniform
package for the duration of the competition guarantee-
ing them media exposure for the entire period of the
event, which allows them to structure their advertising
budgets accordingly.
(141) UEFA also considers that its joint selling arrangement
enables UEFA to maintain the uniform excellence and
consistency of the ‘product’ at a level and quality which
it would not be possible to achieve if the media rights
were handled on an ad hoc basis by individual football
clubs selling the media rights to a succession of different
operators. This is essential for the maintenance of the
distinctive UEFA Champions League brand, which is of
particular interest to UEFA’s commercial partners.
L 291/48 EN 8.11.2003Official Journal of the European Union
(142) UEFA finally argues that UEFA’s financial solidarity
model supports the development of football from the
grass roots upwards. It improves production and stimu-
lates the development of the sport in the smaller
countries. This results in a more competitive base for
the future of European football allowing even the
smallest and financially weakest football clubs to com-
pete with the biggest and strongest football clubs.
7.1.1. Single point of sale of a league product
(143) Joint selling of the media rights of a football tournament
provides an advantage for media operators, football
clubs and viewers since it leads to the creation of a single
point of sale for the acquisition of a packaged league
product.
(144) The advantages of a single point of sale are attractive in
the context not only of a national football tournament,
but also of an international competition where the
difficulties in selling the rights are greater and where the
efficiencies of joint selling may be particularly high. The
creation of a single point of sale is of particular interest
for an international tournament such as the UEFA
Champions League, because this tournament involves a
great number of football clubs from many different
countries. In addition to thepractical difficulties that may
create, there is moreover the issue that the ownership
structures vary from Member State to Member State.
Furthermore, there is dispersed demand from broad-
casters who are likewise of different nationalities and
operating in many different national markets.
(145) Joint selling moreover allows the creation of packages
of UEFA Champions League rights. This allows media
operators to provide coverage to consumers of the
league as a whole and over the course of an entire
season. The creation of a single point of sale facilitates
the existence of the UEFA Champions League product in
view of the hybrid character of the UEFA Champions
League which is a combination of a league and a knock-
out competition where only a limited number of football
clubs reach the final stages of the competition. Therefore,
an individual club could not enter into a commercial
agreement, which would give a broadcaster any guaran-
tee of being able to plan its programme schedule for the
whole UEFA Champions League season right to the final
round. The joint selling of the TV rights solves this
problem, as the broadcaster does not buy the rights of
particular football clubs, but the right to broadcast the
matches which are played on certain days.
(146) The benefits of this packaged approach are evident in
every match week when rights to the entire UEFA
Champions League allow a comprehensive highlights
programme to be produced which offers the possibility
of showing the most interesting bits of the action of the
match days/week in question.
(147) The benefits are also evident in respect of live coverage.
Joint selling provides media operators and consumers
with an overview of the whole UEFA Champions League,
benefiting, for example, those viewers who have a
general interest in the UEFA Champions League as a
whole. By ensuring that clubs grant rights to UEFA,
which are then licensed to media operators, UEFA can
offer a complete package of rights to such operators.
This package currently includes, for example, the first
pick of matches played on each match day. It is
obviously impossible to know at the start of the season
which matches will be most interesting throughout the
course of the season. The package therefore provides
media operators with an opportunity to purchase, and
then sell to consumers, a distinct and valuable media
service, with guaranteed coverage of the most interesting
matches throughout the whole season.
(148) It is conceivable that media operators could put such a
package together even without joint selling. However,
this would require the acquisition of significantly more
rights than is currently the case. For a media operator to
create the same end product in the context of individual
sale of all media rights would risk being significantly less
efficient, involving more acquisition and transaction
costs (
66
). The only guarantee of an equally interesting
selection of matches would be if one media operator
were to buy all of the rights available individually either
before the start of the football season or consecutively
as the football season develops depending on the
performance of the football clubs.
(149) In addition, instead of having to conduct negotiations
with football clubs throughout the 51 different UEFA
member territories with the communication difficulties
and transaction costs that is likely to entail, broadcasters
can acquire the league media rights packages from the
original rights holders though a single outlet. Also inthis
respect, joint selling therefore reduces the transaction
complexity and costs for broadcasters. Broadcasters
can establish predictable commercial, technical and
programming plans for a whole football season, which
enhances the selling of advertising slots and subscrip-
tions. It enables advertisers to build a campaign around
the TV coverage of a league and is instrumental in
securing broadcast sponsorship.
(
66
) ITV, in its reply of 12 May 1999 to the Commission’s notice (OJ
C 99, 10.4.1999, p. 23) states that joint selling bya central selling
body ‘... also significantly reduces the transaction complexity for
broadcasters.’
8.11.2003 EN L 291/49Official Journal of the European Union
(150) Joint selling reduces broadcasters’ financial risk. In a
situation with individual selling of the media rights by
the football clubs they risk a reduction in the value of
the rights acquired from an individual club if that club
performs badly in the league. Joint selling therefore
allows a higher level of investment in the league product
leading to more innovative match coverage such as
better general presentation in both the stadium and the
studio.
(151) Even in respect of competitions where the media rights
are sold by the individual clubs, the rights are generally
aggregated and packaged in later levels of the transaction
chain by intermediaries such as sports agents or by the
broadcasters creating clearing houses or joint exploi-
tation bodies. A certain level of packaging or aggregation
of the individual rights therefore seems optimal or even
necessary for an efficient exploitation of the media rights
of a football tournament.
(152) Viewers benefit from being offered multiple forms of
coverage of the UEFA Champions League. The viewer is
interested in having a choice between various forms of
broadcasts of the matches of a league. A viewer is likely
to wish to have a choice of being able to watch a match
live in its total length and also to be informed about
several matches in brief on a delayed basis at several
different times. The viewer wants to gain information
not only about a single match but also about all matches
on a given match day. A jointly sold packaged league
product is more likely to provide viewers with the
product desired as a broadcaster cannot simply acquire
the rights to a single match but also needs rights to
provide a certain coverage of the other matches of the
league on every match day (
67
).
(153) Football clubs benefit from the sale of the commercial
rights via a single point of sale/joint selling agency. The
football clubs avoid having to build up own commercial
departments of the magnitude that is necessary to deal
with the complexity of developing a commercial policy
and executing the rights deals in a large number of
countries. It is likely that it would be extremely difficult
for many football clubs to be able to build up such
commercial departments and it is therefore likely that
an outsourcing of such function would be necessary in
any circumstances. It would seem that the individual
football clubs could more easily carry out such a task in
respect of national competitions, as the national market
would be much more easily accessible in terms of
language, culture, communication and commercial
transparency.
7.1.2. Branding
(154) UEFA’s second argument that it is able to create and
maintain the uniformity and consistency in quality of a
UEFA Champions League product via its joint selling
(
67
) Taurus Holding in a letter dated 22 January 2002.
arrangement is not without merit. These are factors that
contribute to establishing the reputation of a brand,
which is associated with a uniform and high quality TV
coverage underpinned by a homogeneous presentation
which increases the attractiveness for the viewer (
68
).
These are also factors that attract the best football clubs
who want to participate in this particular international
tournament. The UEFA Champions League has, in fact,
become themost prestigious pan-European club football
tournament with the participation of the very best
European football clubs.
(155) Among the factors underlying the success of the UEFA
Champions League and distinguishing it from other
tournaments are the specific tasks undertaken by UEFA
including the ‘dressing-up’ of the stadium facilities, the
recording of the match and the on-screen presentation,
on-screen signage, music, etc.
(156) Furthermore, the organisational steps undertaken by
UEFA and the joint selling of the league media products
provide benefits for broadcasters in terms of a common
and consistent look to the on-screen presentation of the
matches by all partner broadcasters throughout the
UEFA Champions League season. This is of benefit to
viewers as they are able immediately to recognise
a UEFA Champions League branded media product
associated with quality football, which in turn stimulates
viewers’ interest and demand.
(157) UEFA’s joint selling of packages of media rights to
broadcasters leads to more objectivity in the media
coverage of the UEFA Champions League. It provides
coverage of the league in a manner that protects the
league media product and the brand better than in a
situation where one football club would be presented
with a favourable bias to the detriment of other clubs
and the league brand (
69
). This improves the coverage of
and the interest in the UEFA Champions League brand,
thereby improving the production and the distribution
of the UEFA Champions League media product.
7.1.3. Football clubs’ individual sale of live TV rights unsold
by the joint selling body
(158) UEFA’s exclusive right to sell the live TV rights comprised
by package 4 of the rights segmentation table becomes
a non-exclusive right one week after the draw for the
first round for the UEFA Champions League, which
normally takes place in August. Following that cut-off
date, where UEFA fails to sell such rights, the football
clubs will have an opportunity to offer such rights to
the pay-TV/pay-per-view market on a non-exclusive
basis in parallel with UEFA. These are the rights referred
to in package 5 of the rights segmentation table.
(
68
) KrichMedia in a letter dated 17 September 2002 in reply to the
Article 19(3) notice.
(
69
) Taurus Holding in a letter dated 22 January 2002.
L 291/50 EN 8.11.2003Official Journal of the European Union
(159) The philosophy behind the Commission’s insistence in
giving the football clubs an opportunity for individual
sale of such live TV rights is twofold. First, the efficiencies
and benefits of joint selling can be argued where the
joint selling body fails to find demand in the market for
such rights. Secondly, maintaining competition between
UEFA and the football clubs in bringing such rights to
the market helps to avoid rights to the UEFA Champions
League remaining unused, where there is demand for
them. Football clubs should therefore also be able to
meet demand from free-TV broadcasters. For example, a
risk of unused rights is likely to occur in territories
where there are no pay-TV/pay-per-view broadcasters or
where the existing pay-TV/pay-per-view broadcasters
have already satisfied their demand with the Gold or
Silver rights packages. In such cases, only free-TV
broadcasters seem likely as potential buyers of such
rights and there are no efficiencies in preventing them
from potentially acquiring such rights. This decision
should therefore be made subject to the condition that
the provision in package 5 of the rights segmentation
table restricting football clubs from selling live TV rights
to free-TV broadcasters does not apply where there is no
reasonable offer from any pay-TV broadcaster.
7.1.4. Football clubs’ individual sale of deferred media rights
(160) The amended joint selling arrangement provides that a
number of additional types of deferred TV rights, as well
as new media rights, will be exploited not only by UEFA
but also by the individual clubs in parallel. However,
these additional media rights are made available for
exploitation by UEFA and the football clubs only after
some embargoes introduced to secure products for
which there is much viewer interest and to establish the
reputation of the UEFA Champions League brand, which
is strictly associated with a uniform and high quality TV
coverage, underpinned by a homogeneous presentation.
Consequently, deferred TV rights are available as of
midnight one day after the last of the games of
the relevant match week. Archive rights are available
48 hours after the final. Given the current development
of the Internet and to ensure that the UEFA Champions
League Internet product remains a quality product, these
rights are available 1
1
/
2
hour after the game. This will of
course change over time, making it necessary to revisit
the embargo in the foreseeable future.
(161) Under these circumstances, the Commission considers
that the negative effects arising from the joint selling
arrangement are outweighed by the increased amount
of content made available for a wider distribution,
thereby promoting technical or economic progress of
the media content itself and the new media carriers
distributing them.
7.1.5. Enhancing the focus of the respective UEFA Cham-
pions League and football clubs’ brands
(162) Football clubs exploiting UEFA Champions League foot-
age individually will present the footage in a club-
focused manner and relating only to action in which
they are participating. Football clubs or the broadcasters
exploiting the media rights in question (
70
) cannot
package the rights from several football clubs into a
single product which would appear as an UEFA Cham-
pions League branded product. In particular regarding
live TV rights, UEFA defines as an UEFA Champions
League branded product as one consisting of more than
two live UEFA Champions League matches per day.
Regarding delayed TV rights and Internet rights, UEFA
would accept programmes containing 100 % UEFA
Champions League content on a club channel. However,
UEFA defines a UEFA Champions League branded
programme as one presented as a club magazine pro-
gramme, which contains more than 50 % UEFA Cham-
pions League content. In general programming, the
maximum permissible UEFA Champions League
amounts to 30 % of the programme. Where an entire
match is shown on a delayed basis (that is to say, the full
90 minutes) on a club magazine programme then the
50 % rule would not apply and the programme could
consist mostly or entirely of that single match. Similarly,
if a whole match were broadcast in general programming
on a channel, then the 30 % rule would not apply in
that situation.
(163) The definitions of UEFA Champions League branded
products will optimise the global interaction between
UEFA Champions League branded and club branded
products. The provisions regarding branding are aimed
at furthering the development of the UEFA Champions
League brand as being a unique independent quality
labelled football media product distinguished from club
branded products existing in parallel with the UEFA
Champions League branded products. The definitions
are designed to ensure that club rights do not metamor-
phose into a product which could be confused with the
UEFA Champions League. This contributes to safeguard-
ing the identity and reputation of the UEFA Champions
League product, as the UEFA Champions League brand
in many circumstances serves as a vehicle and a platform
for exposure and promotion of the individual football
clubs within and outside the EEA. This will be of benefit,
in particular, to smaller clubs with less well-known
brands in a wider geographic area who are likely to get
broader television exposure through this means.
(
70
) The bundling limitation logically does not apply to the whole
sale level, as there is no risk that viewers would experience any
brand confusion caused by a bundling at that level.
8.11.2003 EN L 291/51Official Journal of the European Union
7.1.6. Solidarity
(164) In its notification, UEFA advanced as a justification for
exemption the issue of financial solidarity. UEFA argues
that its financial solidarity model supports the develop-
ment of European football by ensuring a fairer distri-
bution of revenue. The solidarity model could therefore
be said to improve production and to stimulate the
development of the sport(
71
).
(165) The Commission understands that it is desirable to
maintain a certain balance among the football clubs
playing in a league because it creates better and more
exciting football matches, which could be reflected in/
translate into better media rights. The same applies to
the education and supply of new players, as the players
are a fundamental element of the whole venture. The
Commission recognises that a cross-subsidisation of
funds from richer to poorer may help achieve this. The
Commission is therefore in favour of the financial
solidarity principle, which was also endorsed by the
European Council declaration on sport in Nice in
December 2000 (
72
).
(166) However, the Commission found that the efficiencies
and the consumer benefits created by the originally
notified joint selling arrangement in 1999 did not
outweigh the negative impact of the restrictions of
competition inherent in that system.
(167) The Commission nevertheless considers that it is not
necessary for the purpose of this procedure to consider
the solidarity argument any further. An exemption,
under Article 81(3) of the Treaty and Article 53(3) of
the EEA Agreement, of the new and amended joint
selling arrangement is justified because of the creation
of a branded league product which is sold in packages
via a single point of sale.
7.1.7. Conclusion regarding improvement in production or
distribution and/or promoting technical or economic
progress
(168) The Commission accepts that the decision of the football
clubs and UEFA regarding the joint selling arrangement
improves production and distribution of the UEFA
Champions League within the meaning of Article 81(3)
of the Treaty and Article 53(3) of the EEA Agreement
(
71
) Case 26/76 Metro v Commission [1977] ECR 1975, Case 42/84
Remia v Commission [1985] ECR 2545 and Cases 56 and 58/64
Consten & Grundig v Commission [1966] ECR 299.
(
72
) ‘The European Council thinks that moves to encourage the
mutualisation of part of the revenue from such sales, at the
appropriate levels, are beneficial to the principle of solidarity
between all levels and areas of sport.’
by enabling the creation of a quality branded content
product and by providing an advantage for media
operators, football clubs and viewers, since it leads to
the creation of a single point of sale for the acquisition
of a packaged league product. However, since no such
benefits arise from the restriction of football clubs’
freedom to sell live TV rights under package 5 to other
broadcasters than pay-TV/pay-per-view broadcasters,
this decision should be subject to a condition, which
will enable football clubs to sell their live TV rights to
free-TV broadcasters, where there is no reasonable offer
from any pay-TV broadcaster.
7.2. Fair share of the benefit to consumers
(169) The Commission considers that UEFA’s joint selling
arrangement provides consumers with a fair share of the
benefits, which are in particular created by the single
point of sale as explained above under section 7.1.1.
(170) The Commission considers that the creation of a UEFA
Champions League packaged content, which is available
from a single point of sale, is a genuine benefit, which
flows from UEFA’s joint selling arrangement. Media
operators, as consumers of football content, get more
efficient and easier access to this unique content which
is in addition carrying the UEFA Champions League
quality brand label.
(171) UEFA’s joint selling arrangement therefore creates
efficiencies, which allow media operators to invest
more in new improved production and transmission
technologies, quality television coverage, quality pro-
duction and presentation, etc. It is also likely to lead to a
more intensive and innovative exploitation of the rights
to the benefit of the consumer. The sale of the UEFA
Champions League media rights in separate packages by
means of a public bidding procedure should enhance
the possibility for more broadcasters, including small
and medium-sized companies, to obtain UEFA Cham-
pions League content. The UEFA Champions League
joint selling arrangement also ensures that companies
interested in new media and deferred media rights and
archives will have the opportunity to bid for such
content rights.
(172) The Commission also considers that viewers get access
to better quality media coverage of the UEFA Champions
League product allowing them to watch all premium
matches of every match day over the course of the entire
season which are of particular interest to them. Viewers
also benefit from a facilitation of access to deferred
media content and archive material, which may be of
special interest to them.
L 291/52 EN 8.11.2003Official Journal of the European Union
(173) However, as indicated in section 3.4.1.3, the Com-
mission considers that the restriction in package 5 of the
rights segmentation table limiting football clubs to
selling such TV rights to pay-TV/pay-per-view broad-
casters does not lead to an improvement in production
or distribution and/or the promotion of technical or
economic progress. In addition, no benefits to con-
sumers are likely to arise from such restrictions. In fact,
the main justification put forward by UEFA to justify the
restriction was linked to UEFA’s fear that in the absence
of the restriction, there would be a risk of severe
economic devaluation of the main rights packages. It is
difficult to see how such restriction designed to maintain
or raise prices and to remove content from free-TV
broadcasters could be regarded as enhancing consumer
benefits.
7.3. Restrictions that are indispensable
7.3.1. Indispensability of restrictions to create a league
product sold via a single point of sale
(174) The Commission notes that media rights of sport
competitions most often are aggregated in some form at
some level of the exploitation chain before they are
offered to the viewer. The Commission is neutral as to
who undertakes this task. The Commission notes that
UEFA could have a legitimate interest in creating a UEFA
Champions League focused product, separate from any
interest that any other operators may have in creating
aggregated products based on UEFA Champions League
footage. The interests may overlap, but would not always
coincide. UEFA could therefore not necessarily rely on
broadcasters, sport rights agents or others to create a
UEFA Champions League focused product on its behalf.
If UEFA wishes to ensure the benefits for itself, its
members and its supporters of a UEFA Champions
League media product, it would appear indispensable
for UEFA to take a role in ensuring the production of
such product. Under the notified joint selling arrange-
ment UEFA is therefore able to ensure the production of
a quality product, which represents the UEFA Cham-
pions League in an objective and independent manner.
(175) Secondly, it would appear that the complexity of
producing such a product through individual sales by
the clubs could compromise the quality and availability
of a UEFA Champions League product, and could be less
efficient for media operators, in particular since the
UEFA Champions League is a pan-European football
tournament involving participants from many different
countries. As a practical matter, an interesting UEFA
Champions League media product would have to
encompass matches of interest to consumers throughout
the season. As it is impossible to predict accurately at
the start of the season which matches will still be of
interest at the end of the season, it would not be possible
for media operators to buy those matches in advance.
The alternative — buying a significant number of
matches from a number of different clubs — would be
inefficient and still not guarantee success. Media prod-
ucts of football leagues are generally aggregated into a
media product covering the league as a whole. The
Commission accepts that such aggregation seems indis-
pensable to present a worthwhile product that interests
viewers. The Commission will therefore simply have to
examine the terms on which the aggregation takes place,
not the identity of the body performing the task.
(176) Thirdly, it also seems indispensable that clubs are not
able to sell on their own behalf precisely the same rights
as those that are included in the jointly sold UEFA
Champions League package. Where the same intellectual
property is in the hands of two different sellers, it is
likely that the combined revenue from the two possible
sales would be significantly less than that which would
be received were there only to be one seller. This is
because a media operator would be less interested in
rights which are available to all of its competitors, as
there would be a reduced possibility to distinguish its
product from those products of its competitors.
(177) In other words, it does not seem possible to alter the
arrangements in such a way that the clubs grant UEFA a
non-exclusive licence to all of their media rights while at
the same time maintaining the improvements and
efficiencies referred to in the first requirement of
Article 81(3) of the Treaty and Article 53(3) of the EEA
Agreement. However, where the joint selling body has
failed to sell the aggregated media rights — the media
rights sold by UEFA being a composite product — the
rights of the joint selling body should not remain
exclusive, but the individual co-owners should have an
opportunity to test market demand for their individual
rights. It would moreover not be indispensable for the
proper functioning of the joint selling body if any further
restrictions were to be imposed on the football clubs
when selling those rights individually (
73
).
(178) The Commission also accepts that it is indispensable for
UEFA to have the exclusive right to sell the UEFA
Champions League live and delayed TV rights outside
Europe as it provides the likelihood of a wider and more
efficient distribution of the UEFA Champions League.
UEFA is, in principle, able to present a product of much
wider appeal than any individual football clubs would
be able to do.
(
73
) On this point see also section 3.4.3.2.
8.11.2003 EN L 291/53Official Journal of the European Union
(179) It is therefore likely that a centrally packaged product,
identifiable as a UEFA Champions League product and
focused not on one individual football club but on the
UEFA Champions League as a whole, is most efficiently
produced through joint selling. UEFA’s role in coordinat-
ing this work through the mechanism of joint selling is
indispensable to the provision to consumers of a UEFA
Champions League media product.
(180) The Commission therefore accepts that the restrictions
of competition in UEFA’s joint selling arrangement are
indispensable within the meaning of Article 81(3) of the
Treaty and Article 53(3) of the EEA Agreement to
provide the efficiencies and improvements leading to
consumer benefits, as long as the joint selling body is
able to find demand for the jointly sold media rights.
7.3.2. Individual football clubs’ sale of own media rights
(181) It is a feature of European football that clubs typically
participate in a number of different leagues, cups and
tournaments over the course of a season. A successful
UEFA Champions League team, for example, will also
participate in national leagues and cups.
(182) Each individual football club has a group of supporters
which is particularly interested in the fate and actions of
that particular club. Consequently, there is demand for
club-related items including club-related mediaproducts.
Clubs already carry out a large number of commercial
activities aimed at providing their fans with targeted
services.
(183) For the football fan with an interest in one particular
club, regardless of the tournament in which the club is
participating, UEFA’s new joint selling arrangement
provides good opportunities to follow the club. While
UEFA’s joint selling arrangement is focused on the
development of the UEFA Champions League brand, it
nevertheless also allows clubs to pursue their relation-
ship with their own fans.
(184) The football clubs are subject to limited restrictions in
selling their media rights individually. However, these
restrictions are considered to be indispensable for the
functioning of UEFA’s joint selling arrangement.
(185) UEFA’s joint selling arrangement provides that the clubs
may address their fans with live television if UEFA has
not managed to sell those live rights. Football clubs may
furthermore address their fans via deferred television,
mechanical reproduction media, Internet, UMTS, etc.
(186) The live TV rights, which could be sold by the football
clubs(
74
), concern the football matches which are not
picked by the broadcasters that have bought the Gold
and Silver live television packages or sold by UEFA as
part of package 4 of the rights segmentation table. The
rights that are referred to in packages 4 and 5 cover the
same matches. In order to improve the chances of
these residual rights finding a buyer, it is considered
indispensable for UEFA, as the joint selling body, to be
given a first exclusive right to sell those live TV rights.
(187) If the joint selling body, UEFA, fails to sell the rights in
package 4 within one week after the draw for the group
stage of the UEFA Champions League, UEFA loses its
exclusive right to sell them. After this cut-off date both
the football clubs holding the live TV rights to the
matches in question also have an opportunity to sell
those rights (referred to as package 5 in the rights
segmentation table) on a non-exclusive basis in compe-
tition with UEFA.
(188) However, UEFA’s rights segmentation means that the
football clubs are restricted to selling the residual live TV
rights to pay-TV or pay-per-view broadcasters. The
Commission considers that this is a restriction imposed
on the football clubs, which is not indispensable for the
attainment of the objectives set out in Article 81(3) of
the Treaty and Article 53(3) of the EEA Agreement.
Once the joint selling body has proven inefficient in
selling the residual rights in question at the cut-off date
it cannot be considered indispensable to the proper
operation of the joint selling arrangement and to the
attainment of the resulting benefits that the football
clubs are prevented from selling those rights to free-TV
broadcasters where there is no reasonable offer from
any pay-TV broadcaster. This would be likely to occur
in territories where there are no pay-TV/pay-per-view
broadcasters or where the existing pay-TV/pay-per-view
broadcasters have already satisfied their demand with
the Gold or Silver rights packages.
(189) This decision should therefore be made subject to the
condition that, to the extent there is no reasonable
offer from any pay-TV/pay-per-view broadcaster, the
restriction imposed by the joint selling arrangement
under package 5 in the rights segmentation table, aimed
at preventing football clubs from selling their live TV
rights to free-TV broadcasters, shall not apply.
(190) The embargoes that are imposed on the exploitation of
deferred media rights and which apply equally to
rights sold jointly by UEFA as well as the rights sold
individually by the football clubs, are indispensable to
enhance focus on the league product and in particular
the highlights product (
75
) covering the UEFA Cham-
pions League in its entirety. The embargoes contribute
to creating a product for which there is much viewer
(
74
) Package 5 of the rights segmentation table.
(
75
) Package 3 of the rights segmentation table.
L 291/54 EN 8.11.2003Official Journal of the European Union
interest and to establishing the reputation of the UEFA
Champions League brand, which is closely associated
with uniform and high quality TV coverage underpinned
by a homogeneous presentation, which affects the
acceptance by the viewer. As regards the embargoes
imposed on the exploitation of the Internet rights, the
need to maintain such embargoes for quality reasons
will, of course, change over time with the development
of Internet technologies.
(191) Moreover, football clubs exploiting UEFA Champions
League footage individually must present the footage in
a club-focused manner and relating only to action in
which they are participating. Football clubs or bodies to
whom they cede their media rights are not allowed to
package the rights from several football clubs into a
single product which would appear as an alternative
UEFA Champions League branded product. In particular
regarding live TV rights, such a product is defined as one
consisting of more than two live UEFA Champions
League matches per match day. Regarding delayed
TV rights and Internet rights, UEFA would accept
programmes containing 100 % UEFA Champions
League content on a club channel. However, UEFA
defines a UEFA Champions League branded programme
as one presented as a club magazine programme which
contains more than 50 % UEFA Champions League
content. In general programming, the maximum per-
missible UEFA Champions League could amount to
30 % of the programme. Where an entire match is
shown on a delayed basis (that is to say, the full
90 minutes) on a club magazine programme then the
50 % rule would not apply and the programme could
consist mostly or entirely of that single match. Similarly,
if a whole match were to be broadcast in general
programming on a channel then the 30 % rule would
not apply in that situation.
(192) The Commission accepts that provisions regulating the
possibilities for third parties to bundle media rights sold
by the individual football clubs are indispensable to
preserve the integrity and branding of the jointly sold
UEFA Champions League media rights. However, follow-
ing receipt of the comments in reply to the notice
published pursuant to Article 19(3) of Regulation No 17,
the Commission requested clarifications of the rules,
which lead to a reduction of their scope and intensity. It
therefore has become possible for a single broadcaster
to exploit two individually sold live matches contempor-
aneously. The Commission considers that opening up
this possibility is likely to render the impact of the
restriction so marginal that it will not be felt by the end-
users of the rights, the broadcasters, as the rights
available for any single broadcaster would be sufficient
to satisfy existing demand from broadcasters for this
type of residual matches. Likewise, regarding deferred
rights, it has become possible to broadcast a whole
match irrespective of the definition of a UEFA Cham-
pions League branded programme.
7.4. No elimination of competition
(193) Commercial rights are available from a number of
football tournaments which fall within the scope of the
relevant markets. For example, according to UEFA, the
TV rights of UEFA Champions League represent on
average only 20 % of the rights in the relevant market.
Since new media rights affect emerging markets, it is not
yet possible to ascertain the position of the UEFA
Champions League content in those markets. However,
it is not likely to be more significant than its position in
the traditional TV rights markets. The media rights of
the UEFA Champions League are therefore just one
possibility for media operators wishing to acquire con-
tent concerning football events taking place regularly
throughout every year.
(194) Moreover, jointly sold media rights of the UEFA Cham-
pions League are split up into several different rights
packages, which are offered for sale in a competitive
bidding procedure open to all interested media oper-
ators. This allows several media operators to acquire
media rights of the UEFA Champions League from
UEFA.
(195) Finally both UEFA and the football clubs sell certain
categories of UEFA Champions League media rights on
a non-exclusive basis. Interested buyers therefore have
several possible sources of supply from the owners of
such rights.
(196) The joint selling of the media rights of the UEFA
Champions League by UEFA is therefore unlikely to
eliminate competition in respect of a substantial part of
the media rights in question.
7.5. Conclusion
(197) In the light of the foregoing, it can be concluded that the
cumulative conditions of Article 81(3) of the Treaty and
Article 53(3) of the EEA Agreement are fulfilled and an
exemption can therefore be granted in respect of the
joint selling arrangement.
8. CONDITIONS AND DURATION OF EXEMPTION
(198)
Under Article 8(1) of Regulation No 17, conditions may
be attached to a declaration of exemption. In this case,
the clause of the joint selling arrangement preventing
football clubs from individually selling live TV rights to
free-TV broadcasters is a restriction on competition
which does not satisfy all the conditions of Article 81(3)
of the Treaty and Article 53(3) of the EEA Agreement.
Such a restriction cannot be considered as improving
the production or distribution of goods or promoting
8.11.2003 EN L 291/55Official Journal of the European Union
technical or economic progress, while allowing con-
sumers a fair share of the resulting benefit, and not
imposing on the undertakings concerned restrictions
which are not indispensable to the attainment of those
objectives.
(199) The exemption should therefore be subject to the
condition that football clubs must not be prevented
from selling their live TV rights to free-TV broadcasters
where there is no reasonable offer from any pay-
TV broadcaster. The Commission considers that no
reasonable offer would exist, in particular, when there
is no offer from any pay-TV broadcaster, which is
comparable to the offer from the free-TV broadcaster.
(200) Pursuant to Article 8(1) of Regulation No 17, a decision
in application of Article 81(3) of the Treaty and
Article 53(3) of the EEA Agreement is to be issued for a
specified period. The notified joint selling arrangement
works with cycles of contract periods of three years. It is
therefore appropriate to define the duration of this
exemption accordingly and to let the joint selling
arrangement operate for two contract periods. Exemp-
tion should therefore be granted pursuant to Article 8(1)
of Regulation No 17 from 13 May 2002, the date of
notification of the last version of the joint selling
arrangement, until 31 July 2009.
9. CONCLUSION
(201)
It is concluded that UEFA’s joint selling arrangement
leads to the improvement of production and distribution
by creating a quality branded league focused product
sold via a single point of sale. Moreover consumers
receive a real fair share of the benefits deriving from it.
Furthermore, the restrictions inherent in UEFA’s joint
selling arrangement are indispensable for achieving these
benefits, save for the provision prohibiting individual
football clubs from selling live TV rights to free-TV
broadcasters. Finally, it is concluded that the joint selling
of the media rights to the UEFA Champions League by
UEFA is unlikely to eliminate competition in respect of
a substantial part of the media rights in question. It is
therefore appropriate to grant an exemption pursuant
to Article 81(3) of the Treaty and Article 53(3) of the
EEA Agreement, subject to a condition,
HAS ADOPTED THIS DECISION:
Article 1
1. Pursuant to Article 81(3) of the Treaty and Article 53(3)
of the EEA Agreement, the provisions of Article 81(1) of the
Treaty and Article 53(1) of the EEA Agreement are declared
inapplicable from 13 May 2002 until 31 July 2009 to the
amended version of UEFA’s joint selling arrangement in respect
of the media rights to the UEFA Champions League, as
described in this Decision.
2. The exemption in paragraph 1 shall be subject to
compliance with the condition that the restriction prohibiting
football clubs from selling live TV rights to free-TV broad-
casters shall not apply where there is no reasonable offer from
any pay-TV broadcaster.
Article 2
On the basis of the facts in its possession there are no grounds
under Article 81(1) of the Treaty and Article 53(1) of the EEA
Agreement for action by the Commission in respect of UEFA’s
joint selling arrangement for sponsorship, suppliership and
IPR licensing relating to the UEFA Champions League.
Article 3
This Decision is addressed to:
Union des Associations Européennes de Football
Route de Genève, 46
1260 Nyon 2
Switzerland
Done at Brussels, 23 July 2003.
For the Commission
Mario MONTI
Member of the Commission
