European court asked if football broadcasting barriers are legal

The owner of the English Premiership, Football Association Premier League (FAPL), has sued a number of pub operators for buying decoding equipment to use to show matches for around £800 a year rather than the £6,000 a year they would have to pay UK licensees such as Sky Sports.

FAPL claims that the showing of the foreign feeds infringes its copyright, and that the selling of such cards is also a copyright infringement.

FAPL sued decoder system dealers QC Leisure and AV Station and six publicans all of whom have argued in the High Court that the European Union's single market mandates the free movement of goods like decoder cards. They claim that to stop them trading in and using them would be contrary to EU laws governing free trade.

The publicans and equipment sales companies have asked the court to refer the case to the European Court of Justice to decide on how the copyright and free trade laws should interact. FAPL has said that any decision against them could throw the entire business of big money sport into doubt.

"In my judgment this case raises very serious questions which, as both parties have urged upon me, are of the greatest importance to the European single market," said Mr Justice Kitchin in his High Court ruling.

"The claimants submit the defendants' case is effectively a challenge to the way in which sports (and indeed virtually all) broadcast rights are licensed in the EU. The defendants say there are millions of expatriate workers in Member States who want to watch satellite television from their own country and that the claimants are seeking to bolster a system of barriers against the free circulation of decoder cards between Member States to the commercial advantage of programme providers and broadcasters who want to maintain price differentials between the markets in different Member States, to the serious detriment of consumers as regards both price and choice," he said.

"Moreover, they continue, the whole trend of EC Directives in this field has been to try and create a single audiovisual area – a process which the claimants are trying to frustrate. These rival arguments raise serious policy issues and I believe it to be highly desirable they should be authoritatively decided by the Court of Justice as soon as possible," said Mr Justice Kitchin.

He recognised that the two sets of laws – copyright and trade laws – were in opposition, and that those laws had sufficient pan-European consequences that a reference to the ECJ was desirable.

"The issues in this case have at their heart the proper interpretation of a number of instruments of Community legislation concerning the cross-border broadcasting of television programmes by satellite," said Mr Justice Kitchin.

"[The banning of cross-border transmission by rights holders such as football leagues] creates a tension with the concept of a Community audiovisual area and the principles of an internal market without frontiers, and it is this tension which is reflected in the multitude of claims and defences deployed in this case. I have made such findings as I can. But I believe the issues which I have identified and upon which the assistance of the Court of Justice is sought are so fundamental that they should be considered as a whole by the Court at the earliest opportunity," he said.

Last December publican Karen Murphy was convicted in UK law for using Greek decoders to show games, but her case has now also been referred to the ECJ for deliberation on the EU law aspects of it.

Observers say that it could be a year before the ECJ rules on the case, and a referral is not a guarantee that it rules on the issue at all.

Editor's note, 02/07/2008: This story has been amended since it first appeared to correct a reference to the claimant's identity. We apologise for the error.