Murphy case: boost for foreign satellite

The advocate general of the European Court of Justice has voiced support for the use of foreign satellite football systems, saying that the use of decoder cards can not be restricted to one country.

The news is a major coup for foreign satellite suppliers and Hampshire licensee Karen Murphy and could potentially have huge ramifications for the Premier League and Sky.

Not binding​

However, the opinion is "not binding on the Court of Justice" and the ECJ judges will now consider their own verdict in "complete independence". They will hand that decision down later in the year.

A further hearing will then be held in the UK High Court to discuss how to incorporate the ruling.

The opinion has no immediate impact on the legality of foreign satellite systems.

Internal market​

Advocate General Julianne Kokott said she took the view that the use of decoder cards could not be restricted to one territory as that would "partition the internal market" and be contrary to the principles of the freedom of the European market.

"The marketing of broadcasting rights on the basis of territorial exclusivity is tantamount to profiting from the elimination of the internal market," she said.

"Consequently, the specific subject-matter of the rights in the transmission of football matches does not justify a partitioning of the internal market, and thus also does not justify the resulting restriction of the freedom to provide services."

Copyright​

She also dismissed the copyright argument put forward by the Premier League — a key plank in its argument. She said "the freedom to provide services is also in line with the Satellite and Cable Directive and with European competition law. Equally, neither does the Conditional Access Directive constitute a barrier to the use of foreign decoder cards."

MA legal expert Peter Coulson said: "It is too early to say what the eventual outcome will be, but this opinion is a major blow to the FAPL and Sky in seeking exclusive rights in the UK."

Paul Dixon of Molesworths Bright Clegg, who represented Murphy, said he was "cautiously delighted" with the Advocate General's opinion, adding: "It makes very good reading from our perspective."

But Dixon stressed that it's "not unheard of for the [ECJ] to have a different opinion from the advocate general."

In a statement, the Premier League said: "Our initial view is that it is not compatible with the existing body of EU case law and would damage the interests of broadcasters and viewers of Premier League football across the EU.

"The opinion expressed by Advocate General Kokott may reflect a particular policy view in relation to the provision of audio-visual services throughout the EU.

"However, if her opinion were to be reflected in the ECJ's judgment, it would prevent rights holders across Europe from marketing their rights in a way which meets demand from broadcasters whose clear preference is to acquire, and pay for, exclusive rights within their own territory only and to use those rights to create services which satisfy the cultural preferences of their viewers within that territory.

"We would hope that when the ECJ comes to its judgment in our case that the current European law, framed to help promote, celebrate and develop the cultural differences within the EU, is upheld.

"If the European Commission wants to create a pan-European licensing model for sports, film and music then it must go through the proper consultative and legislative processes to change the law rather than attempting to force through legislative changes via the courts.

"The ECJ is there to enforce the law, not change it."

• Coulson: major blow to FAPL and Sky​​

More to follow...​