Opinion of March 12, 2003 on the draft decree on televising events of major importance

On March 12, 2003, the Council adopted an opinion on the draft decree concerning the televising of major sporting events. This opinion was forwarded to the Minister of Culture and Communication.

"Dear Minister,

On January 21, 2003, you kindly forwarded to the French Superior Audiovisual Council a draft decree implementing article 20-2 of the amended law of September 30, 1986, aimed at regulating the televising of events deemed "of major importance" for society, for comment.
As the legislator has not made provision for the French Superior Audiovisual Council to be asked for its opinion on this text, the Council is grateful for your concern in browsing it.

Before making its decision, the Conseil wanted to hear from the television service editors likely to acquire the broadcasting rights to these events, namely TF1, France Télévision, M6, Canal+, Eurosport, Sport+ and Paris Première.

The comments made by these operators at a meeting held on February 27 focused mainly on the content of the list of 21 events set out in article 3 of the draft decree. They highlighted a predictable split between open-access service editors, in favor of an extensive list, and restricted-access service editors, in favor of a condensed list.

On May 2, 2000, the French Superior Audiovisual Council pointed out to the Minister of Youth and Sports and the Director of the Media Development Directorate that a list containing too many events would undoubtedly trivialize the truly "major" competitions, described as "extraordinary" by the Community legislator in recital 21 of the Television without Frontiers Directive, and be a source of legal fragility.

Indeed, it seems unsatisfactory to draw up a list that departs from the guidelines laid down by the European Commission, under the provisions of which at least two of the four criteria must be met to qualify as an "event of major importance":

- the event brings together a wider public than the one traditionally involved ;
- the event is part of the national cultural identity;
- the event involves the national team as part of a large-scale event;
- the event traditionally attracts a large television audience.

In accordance with the second paragraph of Article 3a of the Directive, the Commission is responsible for ensuring that the measures taken by Member States are compatible with Community law. It could therefore consider that the inclusion in the French list of events which do not meet at least two of these four criteria is prejudicial to restricted-access channels from other Member States received in France, which would be unduly obliged to cede or share with French free-to-air channels the broadcasting rights they hold to these events.

It should be noted in this respect that the lists that have so far been endorsed by the Community authorities include a very modest number of events.

Having examined, in the light of Community criteria, which events selected by the draft decree were unquestionably of major importance to French society, with a strong national impact, the Council considered that they should, in any event, be qualified as being of major importance:

- the Summer and Winter Olympics;
- official matches of the French soccer team;
- the opening match, semi-finals and final of the Football World Cup;
- the final of the European Football Championship;
- the final of the French Football Cup;
- the Champions League final involving a French club;
- Six Nations rugby tournament matches involving the French national team;
- Rugby World Cup matches involving the French team;
- French Open men's and women's singles finals involving a French player;
- the Davis Cup tennis final involving the French team;
- the men's Tour de France cycling race;
- World Athletics Championship finals involving a French competitor.

In the Council's opinion, some of the following events could also be included on the list:

- the final of the Football Champions League, despite the absence of a French club;
- the final of the UEFA Cup in which a French club participates;
- the Rugby World Cup final, despite the absence of the French team;
- the basketball and handball events mentioned in points 17 to 20 of the project.

The Board would also like to make the following suggestions:

The "event of major importance", the very subject of the decree, is not defined. It would undoubtedly be advisable to introduce the aforementioned Community criteria into the decree, to make it easier to read.

Article 4 of the draft decree lays down the principle of full live broadcasting of the event of major importance by a free-to-air television service, but makes provision for derogations, notably if the event takes place between 0 and 6 a.m. French time, justifying deferred broadcasting that must begin before 8 a.m. In order not to restrict broadcasters' room for maneuver excessively, and not to penalize viewers if the event takes place at the weekend or on a public holiday, it would be preferable to extend the cut-off time beyond 8 a.m..

Article 5 of the draft decree empowers the French Superior Audiovisual Council to assess the fair, reasonable and non-discriminatory nature of proposals for the sale or purchase of rights made by television service editors when the editor of a restricted-access service is required to relinquish the exclusive broadcasting rights it holds. To remove any ambiguity, it would undoubtedly be advisable to specify the procedures for submitting a case before the court.

While the draft does address the issue of retrocession of rights between service editors, it is silent on the question of unsuccessful calls for supply, launched by the organizer of a major event and to which no free-to-air television service would respond. In order to avoid a legal vacuum, it would undoubtedly be appropriate for the decree to apply to this situation a system that meets the same objective as that set out in article 5: to avoid depriving the entire French public of the broadcasting of an event of major importance, a restricted-access television service editor should be able to acquire the broadcasting rights to this event on an exclusive basis, if no free-access service editor comes forward. The decree could entrust the French Superior Audiovisual Council with the task of working with interested parties to find means of avoiding such a situation, in particular by inviting free-to-air and restricted-access service editors to reach agreement with a view to joint diffusion of the event."