List of major events Translation of draft report Swedish Broadcasting Authority PO Box 33, 121 25 Stockholm-Globen, Sweden Telephone: +46 8 580 070 00 www.mrtv.se Reference no. 13/00343 1 Table of contents 1 Table of content 2 Summary .......................................................................................... 1 3 Background...................................................................................... 4 3.1. 3.2. 4 The Audiovisual Media Services Directive..................................... 7 4.1. 4.2. 4.3. 4.4. 4.5. 4.6. 5 The Radio and Television Act .......................................................................... 16 Preparatory work .............................................................................................. 17 Current conditions and opinions in Sweden ............................... 24 6.1. 6.2. 6.3. 7 General information about the Audiovisual Media Services Directive........... 7 Events of major importance for society............................................................ 8 The European Commission's examination ..................................................... 10 Lists of major events in other countries ......................................................... 13 Case law ............................................................................................................ 13 The terms free television and substantial proportion of the public ............. 15 Swedish law ................................................................................... 16 5.1. 5.2. 6 The Broadcasting Authority's mandate ............................................................ 5 How the mandate has been fulfilled .................................................................. 6 The television market in Sweden .................................................................... 24 Rights................................................................................................................. 26 What do the stakeholders think? .................................................................... 27 Proposed wording ......................................................................... 31 7.1. Substantial proportion of the public ............................................................... 31 7.2. Free television................................................................................................... 33 7.3. Events ................................................................................................................ 35 7.4. Available by whole or partial live coverage or whole or partial deferred coverage ....................................................................................................................... 38 7.5. The need for transitory provisions .................................................................. 40 8. 9. Consequences ............................................................................... 42 International outlook ..................................................................... 46 9.1. 9.3. Lists in other countries .................................................................................... 46 Market impact.................................................................................................... 53 Appendix 1 Interviewed stakeholders ........................................................................ 54 Appendix 2 Viewer ratings for different events ......................................................... 55 Appendix 3 The European Commission's decision about the Italian list of major events……………………………………………………………………………………………57 2 Summary The Radio and Television Act contains provisions that give the government the ability to draft regulations on what events are of major importance for Swedish society (list of major events), and therefore are to be broadcast on free television which a substantial proportion of the public has access to. In February of 2013, the Swedish Broadcasting Authority was mandated by the government to analyse and submit proposals for how a list of major events could be worded. The mandate also included obtaining opinions from stakeholders. If a list of major events is introduced, it must be approved by the European Commission, which, inter alia, must examine whether the list is in compliance with Union law, such as the proportionality requirements and compliance with competition regulations. Several other EU Member States have lists of events of major importance for society, and they are Austria, Belgium, Finland, France, Germany, Ireland, Italy and the United Kingdom. Among the EEA states, Norway has recently introduced a list of major events. Most of the stakeholders interviewed are opposed to the introduction of a list of major events in Sweden, because they believe that the market as it is now works well. The stakeholders stated, inter alia, that it is in the interest of rights holders that as many people as possible can watch the events and that heavy population coverage requirements are already being stipulated when rights are sold at this time. Those who have a positive opinion of it believe, inter alia, that a list would function as a type of insurance against major events being placed on pay television channels in the future. The mandate also included examining what can be deemed to constitute a substantial proportion of the public and what free television means. According to our proposal, a television programme service can be received by a substantial proportion of the public on free television if at least 85 percent of the population has access to the television programme service without any additional costs above and beyond the license fee and/or fees for basic packages. The four major television networks with broadcasting operations targeting Sweden, Sveriges Television AB (Sveriges Television), TV4 AB, Modern Times Group MTG AB (MTG) and SBS Broadcasting Networks Limited (SBS), have television programme services that meet these criteria. We therefore believe that competition between broadcasters would not be affected very much by a potential list of major events. The events that we believe could be relevant for a list are the following. a. The Summer and Winter Olympic Games b. The FIFA World Cup for men and women: qualifying games and final tournament matches with Swedish participation, and semifinals and finals c. The UEFA European Football Championship for men and women: qualifying games and final tournament matches with Swedish participation, and semi-finals and finals d. The FIS Nordic World Ski Championship e. The IAAF World Athletics Championships f. The IIHF Ice Hockey World Championship for men: matches with Swedish participation, and semi-finals and finals g. Vasaloppet h. The Nobel Banquet 2 List of major events These events meet the criteria that the European Commission has laid out for assessing what events can be on a list. According to our proposal, these events should generally be broadcast live. Whether the events are to be broadcast wholly or partially depends on what type of event it is. For example, it not possible to wholly broadcast the Olympic Games live, because several competitions can be going on at the same time. Football and skiing should be broadcast wholly, while it is sufficient to broadcast parts of the Olympic Games and athletics. If a list is introduced in Sweden, the obligations of television networks should begin to apply for rights that have been acquired no earlier than on the date the European Commission publishes a decision to approve the Swedish list of major events. 3 Background In Chapter 5 Section 9 of the Radio and Television Act (2010:696), there are provisions on how exclusive rights to television broadcasts may be exercised. The provisions stipulate, inter alia, that the government may draw up a list of events of major importance for Swedish society and that television networks that broadcast these events by virtue of exclusive rights may not deprive a substantial proportion of the public in Sweden of the possibility of following these events on free television. The provisions of the Radio and Television Act implement Article 14 of Directive 2010/13/EU of the European Parliament and of the Council of 10 March 2010 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services (Audiovisual Media Services Directive). The provisions of the Radio and Television Act provide the ability, but not an obligation, for the government to draft regulations for what events are of major importance for Swedish society (list of major events). Thus far, it has not been deemed necessary to have a list of protected events (see Government Bill 1997/98:184, pg. 38) and there is therefore no list in existence as of now. The Riksdag decided on 23 May 2012 (Committee Report 2011/12:KU16, Riksdag Communication 2011/12:224) to notify the government that the government 4 List of major events should appoint a commission of inquiry on the wording of a list of major events as soon as possible. 3.1. The Broadcasting Authority's mandate The government decided on 7 February 2013 to give the Broadcasting Authority a mandate to analyse and submit proposals for how a list of major events could be worded. A potential list is to be compatible with Union law, inter alia, with regard to proportionality requirements and compliance with the EU's competition regulations. Furthermore, the authority is to, taking the development of the market and conditions in other EU countries into account, examine what can be deemed to constitute a substantial proportion of the public and what free television means according to current provisions as well as whether the events are to be available by whole or partial live coverage or whole or partial slightly deferred coverage (see Government Bill 1997/98:184, p. 40 ff.). The authority is also to consider whether there is a need for transitory provisions in conjunction with a potential list. Moreover, the authority is to, via a close dialogue with the Swedish Competition Authority, analyse the consequences of a potential list for broadcasters and rights holders on the market. The authority is to obtain opinions from representatives of the rights holders affected, the Swedish Sports Confederation, broadcasters and any other stakeholders affected. The authority is also to report on an international perspective with a summary of how lists of major events are worded, and, if possible, what effects they have had on the market in other EU countries. A reference group with representatives of all parliamentary parties in Sweden is to be kept up to date on the inquiry work of the authority. A report on the mandate is to be given to the Government Offices (The Ministry of Culture) no later than on 15 November 2013. 3.2. How the mandate has been fulfilled The Broadcasting Authority has hired consulting firm AB Stelacon to help fulfil the mandate. In June 2013, AB Stelacon delivered a background report to the authority, which was then edited by the authority before it was referred for public consultation. Legislation and case law have been studied to fulfil the mandate. Furthermore, contact with the European Commission was established, and, inter alia, representatives of the authority have been in Brussels and met commission officials. The European Commission's decisions on the lists of major events of other countries and guidelines drafted have also been studied. Contact has also been established with other EU countries that have lists of major events as well as Denmark and Norway. Interviews have been conducted with stakeholders. Interviews have been conducted with Television networks and sports organisations to find out how different stakeholders view the consequences of a list of major events and how it could be worded. The sports organisations that have been prioritised are the Swedish Sports Confederation and the federations that represent the major sports which could be relevant for a list. Furthermore, interviews have been conducted with a small number of minor sports federations that have signed the letter received by the Committee on Cultural Affairs in 2012 where introduction of a list of major events is advocated. In addition, an international stakeholder that serves as an intermediary for sports rights for major events was interviewed for the purpose of getting an idea of whether the market has been affected in any way since lists of major events were introduced in other countries. Moreover, meetings have been held with the Swedish Competition Authority. The Broadcasting Authority has also had meetings and correspondence with the parliamentary reference group. 6 List of major events 4 The Audiovisual Media Services Directive There has been a directive concerning the free movement of television broadcasts in the European Union and its predecessor since 1989 (Directive 89/552/EEC). After it was amended in 1997 by Directive 97/36/EC, rules concerning, inter alia, events of major importance for society were implemented. Later amendments have been codified in a new directive in 2010 (Directive 2010/13/EU). 4.1. General information about the Audiovisual Media Services Directive Directive 2010/13/EU of the European Parliament and of the Council of 10 March 2010 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services (Audiovisual Media Services Directive) aims to ensure free movement across borders for audiovisual media services, in other words, traditional linear TV and audiovisual media services on demand. The directive contains minimum rules for such services. The provisions on events of major importance for society apply only to television broadcasts and not to ondemand television. The member state with jurisdiction over the media service provider is responsible for the rules being upheld, the country of origin principle. The other Member States shall ensure freedom of reception and shall not, except for under certain extraordinary circumstances, restrict retransmissions of audiovisual media services for reasons which fall within the fields coordinated by the Audiovisual Media Services Directive. Different criteria are applied to determine which member state is to be responsible for the rules of the Directive being upheld. Primarily, the state where the media service provider is established is deemed to have jurisdiction, in other words, where the company has its head office and where the editorial decisions are made. The Directive also specifies how the country of establishment is to be determined in cases where several member states could be considered. Secondarily, if the country of establishment cannot be determined, the Member State where the satellite uplink is located or the one with responsibility for the satellite capacity used is the one responsible in terms of jurisdiction. The majority of the television networks on the Swedish market that are not established in Sweden are established in the United Kingdom. Therefore, the British authorities are responsible for ensuring that these networks are in compliance with the regulations of the Audiovisual Media Services Directive. Therefore, the British regulations concerning events of major importance for society are especially of interest. 4.2. Events of major importance for society The Audiovisual Media Services Directive's regulations concerning events of major importance for society can be found in Article 14. The provisions are substantiated in Recitals 48–54. The aim of the provisions is, according to Recital 49, that the Member States should be able to take measures to protect the right to information and to ensure wide access by the public to television coverage of events of major importance for society. According to Article 14.1, each Member State may take measures in accordance with Union law to ensure that broadcasters under its jurisdiction do not broadcast 8 List of major events on an exclusive basis events which are regarded by that Member State as being of major importance for society in such a way as to deprive a substantial proportion of the public in that Member State of the possibility of following such events by live coverage or deferred coverage on free television. The Member State shall draw up a list of designated events, national or nonnational, which it considers to be of major importance for society. It shall do so in a clear and transparent manner in due time. The Member State shall also determine whether these events should be available by whole or partial live coverage or, where necessary or appropriate for objective reasons in the public interest, whole or partial deferred coverage. Article 14.2 stipulates that Member States shall immediately notify to the Commission any measures taken or to be taken. Within a period of 3 months from the notification, the Commission shall verify that such measures are compatible with Union law and communicate them to the other Member States. It shall also seek the opinion of the contact committee, which includes representatives of the competent authorities of the Member States. It shall forthwith publish the measures taken in the Official Journal of the European Union. Article 14.3 governs the obligations of the Member States in relation to measures that another Member State has taken to ensure access to events of major importance. Member States shall ensure that broadcasters under their jurisdiction do not exercise the exclusive rights purchased by those broadcasters after 30 July 1997 (since that is the year the directive amending the original directive was issued) in such a way that that a substantial proportion of the public in another Member State is deprived of the possibility of following events by whole or partial live coverage or whole or partial deferred coverage on free television as determined by the Member State and verified by the Commission in accordance with Article 14 paragraphs 1 and 2. Certain terms are used in Article 14 that are explained in other articles or in the recitals. The term broadcaster means, according to point (f) of Article 1, a media service provider of television broadcasts. This, as well as the use of the terms live coverage, deferred coverage and free television, clarifies that the provisions of Article 14 only refer to television broadcasts. Provision via on-demand media services is thus not affected. What can be an event of major importance is exemplified in Recital 49 by the Olympic Games, the FIFA World Cup and the UEFA European Championship. Recital 52 states that the events should meet certain criteria, that is to say be outstanding events which are of interest to the general public in the Union or in a given Member State or in an important component part of a given Member State and are organised in advance by an event organiser who is legally entitled to sell the rights pertaining to those events. According to Recital 53, free television means broadcasting on a channel, either public or commercial, of programmes which are accessible to the public without payment in addition to the modes of funding of broadcasting that are widely prevailing in each Member State (such as the licence fee and/or the basic tier subscription fee to a cable network). 4.3. The European Commission's examination As is stipulated by the Audiovisual Media Services Directive, a Member State that has taken or is planning to take measures to introduce a list of major events shall immediately notify to the Commission planned measures. Within a period of 3 months from the notification, the Commission shall verify that such measures are compatible with Union law and communicate them to the other Member States. After the European Commission has determined that the list of events and other provisions is compatible with Union law and that the decision of the Commission and the Swedish provisions have been published in the Official Journal of the European Union, a list will be applicable vis-a-vis the other EU countries. A decision by the Swedish government must therefore be compatible with Union law in order for the list to be eligible for acceptance by the European Commission. The decision of the Commission may be appealed to the European Court of Justice. The Commission's examination verifies in particular whether the following conditions have been met: 1. The event concerned has been included on the list prescribed in Article 14 of the Audiovisual Media Services Directive in a clear and transparent manner in due time. 2. The event can rightfully be deemed to be of major importance. 10 List of major events 3. The assessment that the event concerned is of major importance is compatible with Union law's general principles, such as the principles of proportionality and non-discrimination, with the fundamental rights, with the principles of freedom to provide services and freedom of establishment as well as the regulations concerning free competition. The Member States have such a large scope for discretionary assessment that the Commission's right of examination only should consist of examining whether the Member States are guilty of obviously false assessments when they chose events of major importance. During the assessment, the Commission shall in particular verify whether the Member State has examined all circumstances that are relevant in the case concerned carefully and impartially. The Commission shall also investigate whether a list of major events will have such consequences for the freedom to provide services, the freedom of establishment, free competition and the right to property as go above and beyond what is inevitably caused by the event in question being included on the list (see, for example, European Court of Justice Judgement C-201/11 P, p. 17–21). The European Commission has drafted guidelines for how it assesses the proposals of Member States for lists of major events and other measures (document CC TVSF (97) 9/3). According to the guidelines, to be eligible for assessment, a proposal must, inter alia, contain a list of each event that is deemed to be of major importance for society and, for each of these events, information about whether the event is to be available by whole or partial coverage and whether it is to be available by live or deferred coverage. The guidelines also state that the measures of Member States must be based on the public interest and that they must be proportional with regard to how they affect trade with broadcasting rights and the freedom to provide services. Which events are to be listed, whether the events are to be available by whole or partial coverage and whether they are to be available by live or deferred coverage is taken into account. Furthermore, the guidelines specify that the measures may not have a discriminatory effect on the television networks or rights holders of other Member States. The events which are to be able to be placed on a list shall meet at least two of four criteria. 1. They are of particular interest to the general public in the Member State, and are not only important to people who ordinarily follow the sport or activity concerned. 2. They have generally recognized cultural significance for the population of the Member State, in particular as a catalyst for cultural identity. 3. The national team participates in the relevant event in conjunction with a competition or tournament of international importance. 4. The event has traditionally been broadcast on free television and had a large television audience. Both domestic and international events can be included on the list, but since international events entail rights holders in other Member States or non-EU countries being affected, the Commission will give special attention to whether such events are included on the national lists. The events on the lists shall be clearly specified, either by their names or by objective criteria, such as matches that the country's own national team participates in. The measures of the Member States must have come about via an open process where the parties concerned have had the opportunity to express their opinions. The effective date of the measures needs to be chosen with respect to the practical consequences for event organizers and television networks. In the event that national measures can be perceived as giving special or exclusive rights to a certain company or a certain category of companies, it needs to be verified that they are compatible with the EU's competition regulations. During a meeting with representatives of the European Commission, it was revealed that, during assessments of lists of major events, the Commission has considered viewer ratings of five percent to be the lower limit for inclusion on a list. Furthermore, a list must be technology-neutral. 12 List of major events 4.4. Lists of major events in other countries As of now, the European Commission has approved lists of events of major importance for society in eight Member States, and they are Austria, Belgium, Finland, France, Germany, Ireland, Italy and the United Kingdom. Furthermore, the EFTA Surveillance Authority approved Norway's list of major events in July 2013. An overview of the currently applicable lists of major events is available in Section 9. The European Commission's decision to approve Italy's list is available in Appendix 3. All decisions by the European Commission are published on the Commission's website. 4.5. Case law The European Court of Justice has examined the substantive regulations in conjunction with the exercise of exclusive rights to broadcast events of major importance for society on television. The relevant cases, C-201/11 P, C-204/11 P and C-205/11 P, were ruled on by the European Court of Justice on 18 July 2013 and concerned whether all FIFA World Cup matches and UEFA European Football Championship matches could be deemed to be of major importance for the inhabitants of a certain Member State. The lists of events of major importance of Belgium and the United Kingdom contained all the matches in the final stage of the FIFA World Cup. The United Kingdom had also included all the matches in the final stage of the UEFA European Football Championship on its list of major events. The European Commission found that the lists were compatible with Union law. The Commission's decision was appealed by football organisations FIFA and UEFA, which organise and sell rights to the FIFA World Cup and the UEFA European Football Championship respectively. FIFA and UEFA argued that all of these matches could not be deemed to be of major importance for the public in these Member Countries. The General Court, as the first instance, dismissed their actions in judgements issued on 17 February 2011 (T-385/07, T-55/08 and T-68/08). The judgements were appealed to the Court of Justice. The Court of Justice dismissed the appeals and stated, inter alia, the following. Including an event on a list of major events because it is deemed to be of major importance for society constitutes obstacles to the freedom to provide services, the freedom of establishment, the freedom of competition and the right to property. These limitations are justified by the objective of protecting the right to information and ensuring wide public access to television coverage of those events. It is for the Member States alone to determine what events are of major importance and the Commission's role is limited to determining whether the measures of the Member States are compatible with Union law. The Commission is to determine what effects a country's list could have on the freedoms and rights recognised under EU law. Furthermore, the Court of Justice finds that not all matches in the final stages of the FIFA World Cup and the UEFA European Football Championship are of equal importance to the public. Therefore, these competitions must be considered events that in principle can be divided up into different matches or levels, where not all of them necessarily must be deemed to be of major importance. Moreover, the Court of Justice was of the opinion, as opposed to the General Court, that a Member State must substantiate why the final stage of the FIFA World Cup and the UEFA European Football Championship in its entirety would constitute a single event of major importance for society. In these cases, this however did not have any impact, because all the matches of the final stages of the tournaments had always been very popular among the public and the competitions were traditionally shown on free television channels in Belgium and the United Kingdom. Finally, the Court of Justice found that the Commission were only required to cite summarised grounds for decisions with regard to lists of major events. Where the list's effect on, inter alia, the freedom to provide services does not go above and beyond what is a direct cause of an event being included on a list, it is not necessary to present special reasons for the conclusion that the list is compatible with EU law. In these cases, it had not been demonstrated that including the final stages of the FIFA World Cup and the UEFA European Football Championship in its entirety on the lists had excessively heavy consequences for the freedoms and rights of Union law. There is another judgement from the court of first instance dated 15 December 2005 in case T-33/01 where the company Infront, formerly known as Kirch, had requested that the European Commission's approval of the British decision to include the FIFA World Cup on its list should be reversed. The court of first instance concluded that an error of form had been committed, because the Commission had not issued a formal decision, and therefore reversed the decision. 14 List of major events The Commission appealed (case C-125/06 P), but lost. The Commission later reaffirmed its previous opinion in a formal decision. 4.6. The terms free television and substantial proportion of the public According to Article 14.1 of the Directive, a Member State may take measures to ensure that events of major importance for society are not broadcast on an exclusive basis in such a way as to deprive a substantial proportion of the public of the possibility of following such events on free television. According to Recital 53, free television means broadcasting on a channel, either public or commercial, of programmes which are accessible to the public without payment in addition to the modes of funding of broadcasting that are widely prevailing in each Member State (such as the licence fee and/or the basic tier subscription fee to a cable network). The Directive does not contain any guidance for what is meant by a substantial proportion of the public. All EU countries that have lists of major events define free television channels as television programme services that can be watched without other fees above and beyond any statutory television fee and basic subscription to a cable television network. The reach requirement for a substantial proportion of the public not to be deemed to be deprived of the possibility of following the event varies from 95 percent (United Kingdom and Ireland) to 67 percent (Germany). 5 Swedish law 5.1. The Radio and Television Act The regulations concerning exclusive rights to television broadcasts can be found in Chapter 5 Section 9 of the Radio and Television Act. According to the first paragraph, a broadcaster that has the exclusive rights to a television broadcast of a Swedish or foreign event that is of major importance for Swedish society may not, if the broadcaster broadcasts the event, exercise the rights in such a manner that a substantial proportion of the public in Sweden is deprived of the possibility of following the event by live coverage or, where there are objective grounds for such, deferred coverage on free television. The events referred to are those that occur no more than once a year and are of interest to a broad public in Sweden. The relationship to the lists of major events of other countries is governed in the second paragraph. If the European Commission has stated in a notice in the Official Journal of the European Union that an event is of major importance for society in another EEA state, a television broadcaster holding exclusive rights to broadcast the event to the state concerned may not, if the event is broadcast, exercise the rights in such a manner that a substantial proportion of the public in the state is deprived of the possibility of following the event on free television in a manner specified in the notice. 16 List of major events If one party invites another party to broadcast the event on television in order to fulfil obligations under the first or second paragraphs, this shall be done on reasonable terms and conditions, according to the third paragraph. The fourth paragraph states that the government will issue regulations regarding which events are of major importance for Swedish society. Chapter 16 Section 13 of the Radio and Television Act stipulates that any natural or legal person that has acquired exclusive broadcasting rights to such an event referred to in a potential list must immediately notify the Broadcasting Authority with respect thereto. According to Chapter 17 Section 5 of the Radio and Television Act, a natural or legal person that disregards the provisions and conditions set forth in Chapter 5 Section 9 on exclusive rights may be ordered to pay a special fee. The special fee will be no less than SEK 5,000 and no more than SEK 5 million. However, the fee should not exceed 10% of the broadcaster’s annual turnover during the preceding financial year. In determining the amount of the fee, special consideration shall be given to the circumstances which constituted the basis for determining whether a fee shall be imposed and the estimated revenues of the broadcaster as a result of the offence. This is stipulated in Chapter 17 Section 6 of the Radio and Television Act. 5.2. Preparatory work The regulations concerning exclusive rights to television broadcasts were reincorporated without any substantive amendment from Chapter 6 Section 10 of the previous Radio and Television Act (1996:844), which expired on 1 August 2010. The government bill where the regulations were originally proposed specifies, inter alia, what follows below (Government Bill 1997/98:184 s. 33 ff). The need for a list With regard to the need for a list, the government stated, inter alia, the following. The government now proposes, similarly to the memo, that a provision enabling the drawing up of a list should be introduced. However, the government is of the opinion that, at present, there is no need for a Swedish list. The steep rise in the price of television rights that occurred in recent years, in particular in sports, can be expected to continue as new forms pay television are developed. In the near future we can expect a more general introduction of pay-perview television where the viewer pays to watch a certain event. There is a risk that the price rises will lead to it no longer being possible for television networks that finance their operations with television fees or advertising to broadcast the most important events and that therefore only people who subscribe to pay television will have the possibility of following the events on television. If a Swedish list of protected events is introduced, a guarantee will be created that the most important national and international events cannot be broadcast exclusively on pay television. Instead, they will also be available on public television. In this way, we provide for the interest of a broad public that does not believe that it is worthwhile to subscribe to specific sports channels, but still wants to be able to follow the really big events on television. Since a Swedish list must be respected by other Member States as well, it will be effective even if a broadcaster in another EEA country is the one that has acquired the broadcasting rights. Several referral bodies, inter alia, in sports, had questioned the need for a Swedish list, because they asserted that the public in Sweden can still watch sports events on television in the manner that the provision of the Television Directive was intended to ensure. Inter alia, Sweden's Olympic committee referred to the fact that the International Olympic Committee, which owns the broadcasting rights to the Olympic Games, voluntarily sets a requirement for the greatest possible population coverage in its policy. The government said that it had no reason to question the information submitted and concluded that there were not many examples of sports events that the public in Sweden had been deprived of. Given this background, the government was of the opinion that there was no reason to draw up a Swedish list of protected events. However, the government believed that conditions could change and that there therefore was a need for legislation to be prepared for if a need for a list arises. 18 List of major events The wording of the list of major events With regard to events on other countries' lists, the government was of the opinion that the obligation of television networks under Swedish jurisdiction to refrain from exercising exclusive rights to broadcast such events in conflict with the provisions of other EEA states should be linked to the fact that the European Commission has explained that the measures are compatible with community law and published the events in the Official Journal of the European Union. Sweden thus did not need to examine the measures of the affected Member State beyond that. Not just sports events, but also other events, such as events that can be of cultural importance, could also be put on a Swedish list. With regard to what events should be deemed to be of major importance for Swedish society, reference was made to the TV Directive's article text and the recitals, as well as the proposed guidelines for the examination of the European Commission which were in the process of being drafted at the time of the government bill. These guidelines are in accordance with the criteria named in Section 4.3 on the European Commission's examination. The government was of the opinion that the commission's proposed guidelines implied that the list should have a limited scope and be possible to change. Furthermore, it was concluded that the TV Directive stipulated that the list should indicate what events are referred to in a clear and transparent manner. How the events are to be broadcast With regard to whether an event is to be available by whole or partial live coverage or whole or partial deferred coverage, the government stated the following. The interest in seeing major sports events and some other events is related to the public not knowing the result. The purpose of the provisions is therefore fulfilled best if the events are broadcast live, i.e. while they are occurring. Live coverage is also best for many other events. In certain contexts, it may however be more natural to make events available by slightly deferred coverage. For example, this applies if the events take place in another time zone, e.g. when it is nighttime in Sweden or if several events are going on at the same time, which is the case with the Olympic Games. Taking into account other television programmes, such as news or children's programmes broadcast at fixed times can also justify slightly deferred coverage. As a general rule, the event should however be broadcast within one day of the event taking place. The starting point should be that it should be possible to broadcast events included on the list in their entirety. This is most compatible with the purpose of the provision to ensure access for a large public to the most important events on television. The definition of a substantial proportion of the public With respect to what is a substantial proportion of the public, the government bill made reference to the fact that the guidelines in the process of being drafted by the European Commission stated that a substantial proportion of the public meant 95100 percent of the population (however, the Commission later approved significantly lower coverage, see Section 9). Furthermore, the government concluded that the license terms for Sveriges Television and TV4 AB require it to be possible for broadcasts to be received via the terrestrial network by at least 99.8 and 98 percent respectively of the permanent population and that the terrestrial channels are also covered by the must carry obligation of the cable television networks. No other television networks reached anywhere near as large a proportion of the population at the relevant point in time. The government came to the conclusion that SVT1, SVT2 and TV4 were the only channels that could meet the population coverage requirement. The fact that the satellite programmes in general can technically be received from anywhere in all of Sweden did not lead to any other conclusion according to the government bill. The following was also stated in the government bill. It naturally cannot be precluded that technical changes, e.g. the expansion of digital terrestrial television could lead to more channels being able to reach high household coverage. For the requirements of the law to be met, it should however be required, in the opinion of the government, that at least 95 percent of the permanent population actually can receive the programmes, i.e. that the public has acquired an antenna and/or whatever else is required to be able to receive the broadcast. 20 List of major events Free television In the government bill, the government reported on the Swedish TV fee and the rules for the must carry obligation applicable at the time and which covered SVT1, SVT2 and TV4. The government found that, in all cases, free television is defined as the channels financed by the TV fee and the channels covered by the must carry obligation. As a result of observations from referral bodies, the government concluded that the requirements of the Television Directive with regard to what constitutes free television (see Section 4.6) can also be met with regard to other channels. The obligations of television networks If an event is included on a list, then, according to the government bill, it does not mean that a terrestrial television network will get exclusive rights to broadcast the event. Nothing prevents another company holding the exclusive broadcasting rights from also broadcasting the event, but it necessary for the rights to broadcast the event to have been offered to companies that meet the population coverage requirements. The provision also does not result in any obligation for television networks to broadcast the events included on the list. A broadcaster that has acquired exclusive broadcasting rights to a listed event, but that refrains from broadcasting it shall be free from liability. However, the Television Directive provides for an obligation for certain broadcasters to enable other broadcasters to broadcast certain events. That can occur by way of the broadcaster waiving exclusivity or itself granting the broadcasting rights to another broadcaster. To determine what compensation is reasonable for granting the rights, the government states that one is to do a comparison with the terms normally applied for events of a corresponding nature with regard to television broadcasts that the broadcasters provide without terms and conditions for special payment. When assessing whether compensation is to be deemed reasonable, it may be taken into consideration whether representatives for the rights holders and television networks have entered into an agreement on guidelines for granting rights to television broadcasts. The Riksdag's handling of the proposed bill As is mentioned in the previous section, the government stated in the government bill that, although a law enabling the introduction of a Swedish list of protected events is needed, there is no need for a list at this time. After the government bill had been submitted to the Riksdag, the Minister of Culture however announced at a question and answer session at the Riksdag on 15 October 1998 that the government was planning to draw up a list of sports events which are to be able to be broadcast on free television as soon as the Riksdag had made a decision on the legislation. The background to the government's change in opinion was that Sweden had played a UEFA European Football Championship qualifier away match against Bulgaria on 14 October and that the Swedes' winning goal had not been shown on Sveriges Television's television programme services or on TV4. The Committee on the Constitution (Committee Report 1998/99:KU6) supported the government's proposed bill, but a dissenting opinion from members of the Moderate Party (Moderaterna), the Liberal People's Party (Folkpartiet) and the Left Party (Vänsterpartiet) suggested that it be rejected, referring, inter alia, to their opinion that, if the option of drawing up a list is exercised, it would lead to a lower financial yield with respect to the opportunities of confederations and associations to generate revenue from the proceeds of sales of television rights. This would in turn lead to a deterioration in the conditions for maintaining the quality of sports. When the question was taken up in the chamber on 3 December 1998, it seemed as if there was a majority in support of the dissenting opinion. The Riksdag then decided to refer the matter back to the Committee on the Constitution for further preparation. The Committee responded with a new committee report (Committee Report 1998/99:KU13), which entailed the matter of the option of drawing up a Swedish list being postponed until a later date. The Riksdag could then decide on the other amendments to the law in accordance with the government's proposal (Riksdag Communication 1998/99:100). The Committee on the Constitution took up the question again in the spring of 1999 (Committee Report 1998/99:KU23). The Committee supported the government’s proposal, but stated that there had not been any problems thus far with regard to sports events where the rights were granted to domestic event 22 List of major events organizers. According to the Committee, the event organizers had attempted to make the events available to a substantial proportion of the population, which was both in their own interest and in the interest of their sponsors. With regard to the finances of Swedish sports and competition, the Committee therefore was of the opinion that sports events in Sweden where the rights are granted to domestic event organisers shall be left off a potential list. The Committee also set out a requirement that the government get the approval of the Riksdag if a different assessment becomes relevant. The Riksdag decision was in line with the Committee's proposal (Riksdag Communication 1998/99:177). At the time of the Riksdag decision, the television rights to home qualifiers for the FIFA World Cup and the UEFA European Football Championship were sold by the Swedish Football Association. The Riksdag's announcement indicated that such matches would not be put on a Swedish list. An account of the television rights at present can be found in Section 6.2. 6 Current conditions and opinions in Sweden 6.1. The television market in Sweden The Swedish television landscape has been going through a sweeping change since the end of the 1990s. Back then, there were three terrestrial television programme services that had at least 98 percent population coverage and that were covered by the must carry obligation (SVT1, SVT2 and TV4). The other television programme services reached about 50 percent of the population. Now about ten television programme services reach around 85 percent of the population, and the must carry rules only cover Sveriges Television and Sveriges Utbildningsradio. The largest television networks with broadcasting operations targeting Sweden are Sveriges Television AB, TV4 AB, Modern Times Group MTG AB and SBS Broadcasting Networks Limited. Sveriges Television AB holds a broadcasting licence for, inter alia, the following television programme services: SVT1, SVT2, SVT24, Barnkanalen and Kunskapskanalen. TV4 AB holds a broadcasting licence for, inter alia, the following television programme services: TV4 and 7 En del av TV4-Gruppen. Within the MTG Group, where Modern Times Group MTG AB is the parent company, Viasat Broadcasting UK Limited holds a broadcasting licence for, inter alia, TV6 and TV3. SBS Broadcasting Networks Limited has a broadcasting license for, inter alia, Kanal 5 and Kanal 9. 24 List of major events According to MMS, Mediamätningar i Skandinavien AB, around 85 percent of the population not only has access to unencrypted television programme services such as SVT1, SVT2, TV4 and TV6, but also television programme services that are included in the basic package of most pay television operators, such as TV3 and Kanal 5. MMS surveys the reach of television programme services four times per year (twice in the spring and twice in the autumn). The survey is conducted over the phone to an independent random selection from the population registry who are asked: "Do you have access to channel x at your home?" The survey thus reveals conscious/perceived access and not actual or technical access (penetration). MMS defines technical penetration as the number of people that have the ability to receive a certain television programme service, but are not necessarily aware of it. Surveying the conscious/perceived penetration is currently the most common survey method. Surveying channel penetration is used, inter alia, by broadcasters and media agencies. MMS has conducted channel penetration surveys since 2005. Table 1 below shows access to the respective television programme service in the TV population 9-99 years of age and was conducted in the first quarter of 2013. The table only contains television programme services with at least 80 percent conscious/perceived access. Television programme service Conscious/perceived access SVT1 99% SVT2 99% TV4 99% Kunskapskanalen 87% Tv 6 86% Tv 3 85% Kanal 5 85% Barnkanalen 83% SVT24 83% Table 1 Channel penetration, source: MMS TV6, Kanal 5 and TV3 have had a conscious/perceived access of over 80 percent since 2008. Since 2008, these television programme services have fallen below the 85 percent penetration limit from two to four of a total 22 surveys. 6.2. Rights The broadcasting rights to major international events, such as the FIFA World Cup, the UEFA European Football Championship and the IIHF Ice Hockey World Championship, are owned by international federations. The International Olympic Committee (IOC) owns the rights to the Summer and Winter Olympic Games. The rights to the FIFA World Cup are owned by FIFA (Fédération Internationale de Football Association), while the rights to the UEFA European Football Championship are owned by UEFA (Union of European Football Associations) and the rights to the IIHF Ice Hockey World Championship are owned by IIHF (International Ice Hockey Federation). The Swedish Football Association has previously acted as an intermediary for broadcasting rights to home qualifiers of the FIFA World Cup and the UEFA European Football Championship. However, the television rights to qualifiers are now sold centrally by FIFA and UEFA. Sales of broadcasting rights have in many cases been assigned to "rights agents" who act as intermediaries for the broadcasting companies to then acquire the rights. Some rights are sold as a package on the Nordic market where several broadcasters can make a joint offer, or one broadcaster that has operations in several countries can make an offer for all markets. Sveriges Television and TV4 AB have traditionally split the broadcasts of the FIFA World Cup and the UEFA European Football Championship and the matches have been divided between the two broadcasters according to an agreement between them. Sveriges Television and TV4 AB have jointly acquired the rights to the FIFA World Cup for men in Brazil in 2014, in Russia in 2018 and in Qatar in 2022. 26 List of major events MTG has acquired the rights to the Winter Olympics in Sochi in 2014 and the Summer Olympics in Rio de Janeiro in 2016. It is the first time that Sveriges Television is not the one broadcasting the Olympics. The proceeds from selling the broadcasting rights is allocated differently depending on the federation. For example, the IOC allocates the proceeds to the organisation committees that are responsible for implementing the Olympic Games. The budget for implementing the Olympics is at an order of magnitude of around SEK 10 billion and about half of that is covered by the IOC's rights proceeds and TOP sponsors (the Olympic Partners). The Swedish Olympic Committee (SOC) does not receive a portion of the proceeds of the sales. IIHF allocates the proceeds from sales to the national federations via an allocation key where the national federations get different amounts depending, inter alia, on whether the country plays in the A or B world championship. Overall, it can be concluded that, for the major international events that are relevant for the list, the national federations in certain cases do not directly receive a portion of the proceeds from the broadcasting rights. However, the national federations can benefit from the international federations having strong finances. 6.3. What do the stakeholders think? Sports federations During interviews with the relevant sports federations, it was revealed that opinions on the need for a list of major events vary. The federations do however emphasize that it is important that as many people as possible have the ability to watch the events and that this is also in the interest of those who sell the rights. Most of the federations that have been a part of the study are against a list and believe that a list would undermine the market in a negative way. They are of the opinion that things work well the way they are now and that it should continue to be a free, unregulated market. Of the federations interviewed, only a few had a positive opinion of a list of major events. They see the list above all as a guarantee that their sport will continue to reach as many people as possible in the future. The Swedish Sports Confederation is of the opinion that the general principle is that all sports should be independent. The Confederation thinks that the market for broadcasting rights should also be free. The Swedish Olympic Committee, SOC, stated, inter alia, the following. A list of major events with the Olympics on it would in all likelihood have no effect. When selling rights, the International Olympic Committee (IOC) already sets requirements concerning high availability in technical terms at present. If availability were to be defined as "free availability", in other words, free of charge and/or free of advertising, the consequence would be that the competition for the broadcasting rights would be eliminated. The SOC believes that it would be unreasonable and could have serious consequences on the funding of large events such as the Olympics. The Swedish Football Association is against a list of major events, because it believes that a list would undermine the market. Furthermore, the Association stated that the rights to the event are owned by and should be free to dispose of by the rights holders. The Association is of the opinion that it is already in the interest of the rights holders for as many people as possible to be able to watch the event. The Swedish Ski Association is of the opinion that the FIS Alpine World Ski Championships and the FIS Nordic World Ski Championships should not be on a list of major events because the market for rights sales should be free and unregulated. The Association thinks that things work well as they are now, since it is still in the interest of those selling the rights that as many people as possible can watch the events. The Swedish Athletics Association is of the opinion that it is important that as many people as possible have the ability to watch the events, but it is also important that the sport receives a portion of the proceeds from the rights. The Association feels that it needs to evaluate what effect a potential list of major events would have from a larger perspective before it can take a position on the matter. The Swedish Ice Hockey Association has a positive opinion of the introduction of a list of major events. The Association is of the opinion that interest in the sport will increase as more people are able to watch the IIHF Ice Hockey World 28 List of major events Championship. The Association said that the public lost interest in the IIHF Ice Hockey World Championship when it was broadcast on TV3 in the end of the 80s. A few associations that represent minor sports are questioning the major sports being on a list of major events, since there is already a commercial interest in them being shown to a large portion of the public. They believe that the list should on the contrary aim to get minor sports shown on TV. The Olympics are the biggest window of opportunity for minor athletes, and the list of major events should therefore strive to ensure that the minor sports in the Olympics are shown to the public. Exposure can lead to more people playing these sports. Even though the occurrence of a list of major events does not mean that the broadcaster that has acquired broadcasting rights to an event must broadcast all of it, these federations think that what is broadcast should be broadcast on television programme services that a large portion of the population have access to. Broadcasters TV4 AB, MTG and SBS oppose the introduction of a list of major events, because they think that the market for broadcasting rights works well and that the introduction of a list would probably lead to lower revenue for sports federations. They are of the opinion that those who already sell the rights at present set population coverage requirements and that it is also in the interest of the broadcasters that as many people as possible watch the broadcast, which then generates higher advertising revenue. The consequence of a list of major events with very high population coverage requirements would be that certain television networks would be unable to purchase the rights to events on the list. Sveriges Television has a positive opinion of introducing a list of major events and thinks that it would ensure that a large portion of the public gets access to the major events. The broadcaster also stated that, due to the fact that sports are supported by public funds, it is important that the events be shown in such a way that a large portion of the public can access them. Furthermore, it was stated that a list of major events could serve as insurance for the future that major events being broadcast on pay television will be avoided. In addition, a list of major events could counteract unfair price trends on the market for television rights. Other stakeholders IEC in Sports, a rights intermediary, has a negative opinion of introducing a list of major events and is of the opinion that today's market is self-regulating and works well. IEC in Sports thinks that the rights to major events are currently sold to broadcasters that have television programme services with good population coverage. The Nobel Foundation stated that the Nobel Banquet being broadcast on a pay television programme service is unlikely. Competition perspective The Swedish Competition Authority's position is that competition could generally be distorted by a list. If there is going to be a list, the criteria should put as many broadcasters as possible in the running for purchasing the rights. The list should also contain as few events as possible. 30 List of major events 7. Proposed wording 7.1. Substantial proportion of the public According to our proposal, a television programme service can be received by a substantial proportion of the public if at least 85 percent of the population perceive that they have access to the service. The purpose of a list of major events is to ensure that a substantial proportion of the public gets access to events that are of interest to the general public. The definition of substantial proportion of the public is of decisive importance for what broadcasters are to be able to broadcast an event on a potential list with exclusive rights. The Member States of the EU that have introduced lists of major events apply different population coverage requirements, from 67 percent (Germany) to 95 percent (United Kingdom), for a television programme service to be deemed to reach a substantial proportion of the population. According to the Swedish preparatory work, the requirement is to be that at least 95 percent of the permanent population can receive broadcasts of events on a Swedish list. The market in the Member State concerned and Union law shall be taken into consideration when assessing what population coverage requirements are to be stipulated. The measures taken must be proportional in relationship to the purpose of having a list of major events. For example, the freedom of broadcasters to provide services may not be restricted in a manner that is not in reasonable proportion to the purpose of ensuring wide availability of the public to television broadcasts of the events. Furthermore, competition regulations must be taken into account. A very high population coverage requirement could be perceived as obstructing competition, because it could exclude broadcasters from the opportunity to exclusively broadcast events. A situation where there are many television networks with a reach just under the selected level could also be called into question. It should be mentioned that, at the end of the 1990s, when the Swedish legislation emerged, there were not any broadcasters besides Sveriges Television and TV4 AB that came close to the 95-percent coverage requirement set at the time. A requirement of over 90 percent population coverage at present would mean that only two broadcasters, Sveriges Television and TV4 AB, could exclusively broadcast events on a list. That can be deemed to constitute a disproportional measure, because the number of broadcasters is limited to a great degree. If the population coverage requirement instead is set at 85 percent of the population, that would enable the four largest television networks, Sveriges Television, TV4 AB, MTG and SBS, to continue to be able to compete for television rights. Section 6.1 above indicates that over 80 percent of the TV population perceived that they have had access to MTG and SBS' television programme services, TV6, Kanal 5 and TV3, since 2008, but that the television programme services have had less than 85 percent penetration a few times. It is thus more of a certainty that these television programme services will reach a limit of 80 percent population coverage. However, we have come to the conclusion that the population coverage requirement should be set at 85 percent, in light of the background that the purpose of a list of major events is to ensure that events of major importance are available to a substantial proportion of the public. 32 List of major events It would be problematic to determine how large a proportion of the population have the technical or actual ability to receive a certain television programme service. Such information depends on the availability of the television programme service in the different distribution platforms and the market shares between the distribution platforms. Information on actual coverage must also be ascertained by compiling data from the operators on how many people subscribe to certain subscriptions. Such information would probably be difficult to get access to. It would also be problematic to allow the population coverage requirements listed in the broadcasting licences to determine how to assess the coverage of a television programme service. On the one hand, because the coverage requirements apply where access to network infrastructure allows, and on the other, because the licences only apply to the terrestrial network and a list must be technology-neutral. With regard to the question of how large a proportion of the population has access to a certain television programme service, it should therefore, in our opinion, be the perception of viewers about whether they have access to the event that is decisive rather than the technical or actual ability to receive a television programme service. In summary, this means that a television programme service can be received by a substantial proportion of the public on free television if at least 85 percent of the population perceives that they have access to the service. In our opinion, this means that the competition between television networks is not restricted in a disproportional manner, with the purpose of having a list still being fulfilled. 7.2. Free television According to our proposal, the cost of basic pay TV subscriptions is equivalent to that of free television, because it is a widely prevailing mode of funding of television in Sweden. According to the Audiovisual Media Services Directive, free television means television programme services that can be watched without payment in addition to the modes of funding of broadcasting that are widely prevailing in each Member State such as the licence fee and/or the basic tier subscription fee to a cable network. According to the government's assessment in Government Bill 1997/98:184, free television means, in all cases, the television programme services funded by the TV fee and the television programme services covered by the retransmission obligation, which at the time were SVT1, SVT2 and TV4, and which at this time would mean only public service channels. As a result of observations from referral bodies, the government concluded that the requirements of the Television Directive with regard to what constitutes free television can also be met by other television programme services. As has been revealed above, a large proportion of the Swedish population currently has access to more television programme services than the ones that are broadcast without encryption and therefore are provided without payment, such as SVT1, SVT2, TV4 and TV6. Surveys from MMS reveal that at least 85 percent of the population perceive that they have access to television programme services such as Kanal 3 and TV5, which are broadcast with encryption and therefore are only available when paid for. The aforementioned television programme services are generally included in the operators' basic subscriptions, in other words, the cheapest channel package that the operators offer. Since such a large proportion (85 percent) of the Swedish population has access to at least some television programme services that are provided when paid for, we propose that the cost of basic pay TV subscriptions can be considered a widely prevailing mode of funding of television in Sweden and therefore is equivalent to 34 List of major events free television. Our informal contact with the European Commission indicates that the Commission would also approve such a definition of free television. The terms for accessing pay television programme services included in a basic subscription, what are referred to as mini pay channels, differ from household to household. The television programme services can be included in a basic offering of cable TV that the property owner provides and where the fee is a part of the regular housing cost. Other households have an individual subscription, which can be more or less extensive depending on how many television programmes services are included. The different distributors package and price the television programme services in different ways. Some subscription types allow the subscriber to choose which television programme services are to be included and special offers and introductory offers are common. In summary, it can be concluded that the market is currently more complex than when the government bill was written in 1997. For these reasons, it would be difficult to specify exactly what the definition of basic subscription is in the text of the statute. One solution could however be, as in Norway, to define the cost of basic pay TV subscriptions as the least expensive channel package that television distributors offer or require a subscription to in order to be able to receive television broadcasts (see Section 9.1). 7.3. Events According to our proposal, the following events could be included on a Swedish list. a) The Summer and Winter Olympic Games b) The FIFA World Cup for men and women: qualifying games and final tournament matches with Swedish participation, and semi-finals and finals c) The UEFA European Football Championship for men and women: qualifying games and final tournament matches with Swedish participation, and semi-finals and finals d) The FIS Nordic World Championship e) The IAAF World Athletics Championships f) The IIHF Ice Hockey World Championship for men: matches with Swedish participation, and semi-finals and finals g) Vasaloppet h) The Nobel Banquet According to the relevant provision of the Radio and Television Act, both foreign and domestic events and both sports and cultural events may be on a list. There is also an option for the government to include sports events in Sweden where the rights are granted to domestic event organisers on a list of major events. However, in such cases, in light of the background of the Committee on the Constitution's report (see Section 5.2), the approval of the Riksdag must be obtained. It is however debatable whether such a circumstance advocated by the Committee, where a distinction is made between whether the event organisers that grant rights to events are domestic or foreign, is compatible with Union law. Overall, there is, in our opinion, nothing that prevents the proposed events submitted in this report from also including sports events in Sweden where rights are granted by domestic event organisers. As has been stated above, at least two of the following criteria that the European Commission has formulated shall be met in order for an event to qualify for the list of major events. 1. They are of particular interest to the general public in the Member State, and are not only important to people who normally follow the relevant sport or activity. 2. They have generally recognized cultural significance for the population of the Member State, in particular as a catalyst for cultural identity. 3. The national team participates in the relevant event in conjunction with a competition or tournament of international importance. 4. The event has traditionally been broadcast on free television and had a large television audience. One cultural event with very high viewer ratings is the Eurovision Song Contest, which is organised by the European Broadcasting Union (EBU), in which Sveriges Television and TV4 AB are members. The Schlager competition is however considered a television production and not an independent event, which makes the competition unable to be relevant for a list of major events even though it meets at least two of the four criteria. According to our proposal, the following events could be included on a Swedish list. 36 List of major events The Summer and Winter Olympic Games The Olympic Games attract a great deal of interest throughout society, not just among people with a special interest in sports. These events have traditionally been broadcast on free television and had a large audience. The FIFA World Cup and the UEFA European Football Championship for men and women The FIFA World Cup and the UEFA European Football Championship attract a great deal of interest throughout society, not just among people with a special interest in football. These events have traditionally been broadcast on free television and had a large audience. The matches that are to be covered according to our proposal are qualifiers and final tournament matches with Swedish participation, and semi-finals and finals. The FIS Nordic World Ski Championship The FIS Nordic World Ski Championship attracts a great deal of interest throughout society, not just among people with a special interest in sports. These events have traditionally been broadcast on free television and had a large audience. The IAAF World Athletics Championships The IAAF World Athletics Championships attract a great deal of interest throughout society, not just among people with a special interest in athletics. These events have traditionally been broadcast on free television and had a large audience. IIHF Ice Hockey World Championship for men Sveriges Television had the broadcasting rights to the IIHF Ice Hockey World Championship until TV3 acquired them in 1988. At the time, TV3 was a television programme service with marginal coverage in Sweden. TV4 AB has had the rights since 2012. The IIHF Ice Hockey World Championship attracts a great deal of interest throughout society, not just among people with a special interest in ice hockey. Furthermore, the event has historically included participation of the Swedish national team. The matches that are to be covered according to our proposal are matches with Swedish participation, and semi-finals and finals. Vasaloppet Vasaloppet attracts a great deal of interest throughout society, not just among people with a special interest in sports. Vasaloppet is also an event with cultural significance. The events has traditionally been broadcast on free television and had a large audience. The Nobel Banquet Except for one year when it was broadcast by TV4, the Nobel Banquet has been broadcast by Sveriges Television and has thus traditionally been broadcast on free television. The event has had high viewer ratings and can be deemed to be of particular interest to the general public. The Noble Banquet is also an event with cultural significance. It is noteworthy that the process for selling the rights differs from the sports events, both with respect to pricing and the number of stakeholders. 7.4. Available by whole or partial live coverage or whole or partial deferred coverage According to our proposal, the events should as a general rule be broadcast live. The Olympics and the World Athletics Championships need only be shown partially, while the other events are to be broadcast in their entirety. With regard to whether events are to be available by whole or partial live coverage or whole or partial deferred coverage, the government stated in the preparatory 38 List of major events work that the interest in seeing major sports events and certain other events is linked to the public not knowing the result, and that many other events are also best suited for live coverage (Government Bill 1997/98:184 pg. 40). This reasoning is still valid now. The purpose of the provisions is therefore fulfilled best if the events are broadcast live, in other words, while they are occurring. In certain contexts, it may however be more natural to use deferred coverage of the events, for example, when events take place while it is night time in Sweden. As a general rule, the event should however be broadcast within one day of the event taking place. The question of whether the event should be broadcast in its entirety or whether it is sufficient for parts of the event to be broadcast on television programme services that are available to a large portion of the population is significant in particular for extensive events where many competitions are going on at the same time. For example, this applies to the Olympic Games or for large athletics events. When such events are broadcast on TV, television programme services targeting a broad public will concentrate on what is most interesting for the general public. What parts of a major event are most interesting for the general public cannot be specified in advance, because they are dependent upon, inter alia, the success of individual athletes. Therefore, there is reason for only partial coverage of the Olympics and the World Athletics Championships on television programme services that are available to a substantial proportion of the population. From the point of view of some of the stakeholders, it can be problematic if national rules are worded in such a way that they prevent broadcasters that have television programme services that reach a broad public and smaller, specialised pay television programme services, from being able to be responsible for more extensive broadcasts of events such as the Olympics and the World Athletics Championships. A situation of this type can occur if the national rules require that it be possible to broadcast all parts of an extensive event on free television. A television network that has both free television programme services with sufficient reach and pay TV channels that only a smaller proportion of the general public has access to, and which has exclusive rights to broadcast such an event, may choose to waive its exclusives rights and offer another television network the opportunity to broadcast the parts of the event of their choosing on free television. In such cases, the first television network can broadcast selected parts on free television and the rest on pay television, because the broadcasts no longer are subject to exclusive rights. However, the first television network can, without violating regulations, also choose to retain the exclusive rights, but only broadcast parts of the event on its own free television programme services and not broadcast anything on pay television. The reason for such a course of action can be that the financial profit is deemed to be greater than if the company would need to split advertising revenue for free television with another television network. If the network were to act in this manner, the general public would probably still see the most interesting parts of the event. The audience that has more of a special interest will however miss the opportunity to follow their favourite parts on extended pay television broadcasts. This makes the case for a Swedish list only requiring parts of events like the Olympics and the World Athletics Championships to be broadcast on free television. 7.5. The need for transitory provisions According to our proposal, the obligations of television networks shall begin to apply to rights that have been acquired no earlier than on the date the European Commission publishes a decision approving a Swedish list of major events. In such a case, no transitory provisions are needed. Several television networks on the Swedish market are established in the United Kingdom and are subject to British regulations. According to these regulations, television networks with exclusive rights to broadcast events on the lists of other EEA States shall respect the regulations that these states have laid out for how events are to be broadcast. The obligation applies to rights that have been acquired after the European Commission has published a list with the event in the Official Journal of the European Union. In consideration of the fact that the regulations concerning a Swedish list of major events should not function in a discriminatory manner between television networks from different EU countries, the obligations of the television networks should apply to rights that have been acquired no earlier than on the date the European Commission published its decision approving the Swedish measures. 40 List of major events Because the obligations first begin to apply to rights acquired after the European Commission has published the Swedish list in the Official Journal of the European Union, the conditions will be equal for all television networks regardless of where they are established in the EEA area. In such a case, no transitory provisions are needed. 8. Consequences We assess that a list of major events worded in accordance with this proposal would not have any significant consequences for broadcasters, sports organisations and rights holders. From the perspective of the consumer, a list means that broadcasters may not broadcast listed events in such a way that a substantial proportion of the public is deprived of the possibility of following the event on free television. In summary, the proposed Swedish list of major events implies the following. It should be possible to broadcast a limited number of events on television programme services that at least 85 percent of the Swedish population has access to. It should be possible to receive the television programme services without paying any fees above and beyond the cost of the license fee and/or the basic subscription. It is sufficient for parts of the Olympic Games and the World Athletics Championships to be broadcast in such a way that a substantial proportion of the public can follow the event. The other events on the list should be broadcast in their entirety. The obligations enter into force with regard to broadcasting rights 42 List of major events that have been acquired after the European Commission has approved the Swedish provisions. Several stakeholders have stated that a list of major events would have no effect, because the rights holders already set strict requirements on how many people are to have the ability to watch the event when they sell their rights (see Section 6.3). In the following, what consequences the proposal can be expected to have in different respects will be discussed. The market for broadcasting rights At present, a very large number of sports events on the elite level are broadcast on television. Many of them recur several times each season, such as world cup competitions and similar events. Considering that only a small number of events have been included on the proposed Swedish list, the cumulative effect on the market for broadcasting rights should be small. Competition between television networks Provided that the events on the list are to be broadcast on television programme services which are available without any costs except the license fee and the basic subscription, and which at least 85 percent of the population have access to, the four largest television networks presently in Sweden (Sveriges Television, TV4 AB, MTG and SBS) have the ability to meet the requirements. We believe that the competition between television networks for broadcasting rights or audiences would not be affected appreciably by a Swedish list of major events. Because the obligations according to the proposal first begin to apply to rights acquired after the European Commission has published the Swedish list in the Official Journal of the European Union, the conditions will be equal for all television networks regardless of where they are established in the EEA area. Effects on Swedish sports event organisers Except for Vasaloppet, the proposal only applies to sports events for which television rights are granted by international event organisers. For the major international events, the national federations don't get a share of the proceeds from the broadcasting rights in certain cases. However, the proceeds from sales of broadcasting rights can indirectly be positive for the national federations, because financial assets are often allocated to the national federations. The list of major events is not estimated to have any significant effects on the price level of the broadcasting rights, because several television networks can still compete for the rights. Effects on the Nobel Foundation The Nobel Banquet has, except for on one occasion, been broadcasted by Sveriges Television. An interview conducted by AB Stelacon revealed that the Nobel Foundation does not think that it is likely that the Nobel Banquet would be broadcast on a pay television programme service in the future. In light of that background, it can be assumed that a list of major events would not have any significant effect on the Nobel Foundation. Other consequences and conclusions We would like to mention once again that a Swedish list of major events does not result in any obligation for broadcasters to broadcast the events on the list. Furthermore, a broadcaster that does not meet the population coverage requirements can purchase broadcasting rights to a listed event, but it must have also offered the rights to broadcast the event to broadcasters that meet the population coverage requirements. The option to introduce a list of major events applies only to linear television broadcasts. A list of major events therefore does not constitute any obstacle to listed events only being available on on-demand television. From the perspective of the consumer, it can be concluded that a list means that broadcasters may not broadcast listed events in such a way that a substantial proportion of the public is deprived of the possibility of following the event on free television. It is probable that a list of major events will have greater effects if it is combined with very high population coverage requirements. Too high requirements, resulting in the number of broadcasters that can compete for the rights to exclusively 44 List of major events broadcast events being limited to a very high degree, are, however, not compatible with Union law. The four largest broadcasters have television programme services with at least 85 percent coverage, but also some with lower coverage. A list of major events would result in the broadcasters being unable to exercise broadcasting rights in such a way that substantial proportion of the public is deprived of the possibility of following a listed event, in other words, by only broadcasting the event on a television programme service that not many people have access to. A list of major events thus entails a limitation of a broadcaster's freedom to choose what programmes are to be broadcast on which of the broadcaster's television programme services. Stakeholders have however alleged that there is interest in broadcasting events in such a way that as many viewers can access them, because it generates higher advertising revenue. Overall, it can be assumed that a list of major events, at current conditions on the television market, and according to the proposed wording, would not have any significant consequences. 9. International outlook 9.1. Lists in other countries As of now, the European Commission has approved lists of events of major importance for society in Austria, Belgium, Finland, France, Germany, Ireland, Italy and the United Kingdom. Furthermore, the EFTA Surveillance Authority approved the Norwegian list of major events in July 2013, and its effective date is 1 July 2014. Denmark had a list from 1999 to 2002. The Danish government has agreed with some other parties in the Danish Parliament to reintroduce a list. Events on the lists The Olympic Games are on all lists, only the summer games for Ireland, but both the Summer and the Winter Olympic Games for all of the other countries. The FIFA World Cup and the UEFA European Football Championship are also on all of the lists. The entire final tournament is specified for Belgium and the United Kingdom. In other countries, only certain matches are specified, for example, the opening match, the semi-finals, the finals and the matches with the country's own national team. Ireland's qualifiers at home and away are also on Ireland's list. 46 List of major events Several countries also include their own country's national team's international matches, finals matches in national leagues or finals or their own clubs' matches in the UEFA Cup (Europa League) or Champions League. Otherwise, the lists of major events of each different country differ both with respect to the number of events and with regard to what events are on it. Nordic and Alpine skiing, athletics, cycling, rugby, basketball, tennis, golf and motor sports are examples of sports that are on the list of at least one country. Some countries have also included music events, such as the New Year's Concert at La Fenice Theatre in Venice (Italy), the finals in the music competition Reine Elisabeth (Belgium) and the Vienna Philharmonic Orchestra's New Year's Concert and the Opera Ball in Vienna (Austria). How the events are to be broadcast Austria The general rule is that the events are to be broadcast live and in their entirety. Some of the events on the list may be broadcast as a recorded programme or only partially if multiple events or multiple parts of the same event occur simultaneously or if the event has not previously been broadcast in its entirety due to its length. Freely available television programmes are defined as programmes which the viewer can watch without paying any additional fees and regular fees for the use of technical equipment for decoding. The statutory television fee and the basic fee for cable TV are not deemed additional fees. It shall be possible for at least 70 percent of the population that is liable to pay the television fee or that have been exempted from liability to pay the fee to receive the listed broadcasts on free television. These obligations apply to contracts that have been entered into or amended after the Austrian legislation entered into force. Belgium It is indicated for each listed event whether it is to be broadcast live in its entirety or if it also may be broadcast in the form of shorter component parts. The live coverage requirement applies above all to football and tennis matches. Live coverage may be postponed if the event takes place between 12:00 a.m. and 8:00 a.m. Belgian time, if it takes place at a time that coincides with one of the broadcaster's regular news broadcasts or if the event consists of multiple parts that go on at the same time. In Belgium, separate regulations apply to the French-speaking community and the Flemish community. In both cases, a channel is deemed to be free if the language is French (for the French community) or Dutch (for the Flemish community) and if there are not any other costs above and beyond any subscription for the basic channel package of a cable television network. At least 90 percent of the population in the French-speaking region and bilingual Brussels, and 90 percent of the population of the Flemish region and Brussels shall have the ability to watch the programmes. The obligations in relation to other member states apply if the rights have been acquired after 30 July 1997. Finland Certain football and ice hockey matches specified on the list are to be broadcast live in their entirety. The other events may be made available by whole or partial coverage and by live or deferred coverage. 90 percent of the population shall have the ability to receive the broadcast without making any separate payments. It is not specified when the obligations in relation to other Member States begin to apply. France Exercising exclusive broadcasting rights to an event included on the French list may not prevent the same event from being broadcast on free television live and in its entirety. Exceptions are made for broadcasts of bicycle race Tour de France, which may be limited to highlights, and for broadcasts of the Summer Olympic Games, the Winter Olympic Games and the World Athletics Championships, which may be limited to parts that are representative of the different sports and the participating countries. Deferred coverage is permitted when events take place 48 List of major events simultaneously. Deferred coverage is also permitted if the events take place between 12:00 a.m. and 6:00 a.m. French time, on the condition that the broadcasts begin before 10:00 a.m. in France. A free channel is defined as a television channel that is not financed by viewer fees and that can be received by at least 85 percent of the households in the intraEuropean parts of France. Obligations apply to rights that have been acquired after 23 August 1997. Germany The events shall be made available by live coverage, or deferred coverage in the event of individual parallel events. Only television channels that care freely receivable and that actually can be received by more than two thirds of Germany's population are deemed publicly available channels. The obligations in relation to other Member States apply to rights that have been acquired on 30 July 1997 or later. Ireland For all events, except for Ireland's matches in the Six Nations Rugby Championship, a free television network that meets the reach requirements shall have the rights to broadcast the event live. The rights apply with deferred coverage for the rugby matches. Free television services are defined as television broadcasting services that can be received without any additional payments being required by the company providing the service. At least 95 percent of the Irish population are to be able to watch the event. If less than three broadcasters reach such a large proportion of the population, it if sufficient if at least 90 percent of the population can receive the broadcasts. Multiple broadcasters may enter into an agreement to jointly achieve the specified reach. It is not specified when the obligations in relation to other Member States begin to apply. Italy The finals of the FIFA World Cup and the UEFA European Football Championship and all of the Italian national team's matches during these events are to be broadcast jive in their entirety. For the other events, the broadcasters may choose whether the events are to be made available by live or deferred coverage and by whole or partial coverage. The events are to be broadcast by television networks subject to Italian law and which can ensure that over 80 percent of the Italian population can follow the events on free television channels without extra costs. It is not specified when the obligations in relation to other Member States begin to apply. United Kingdom Events on the United Kingdom's list are either designated as Group A or Group B. It shall be possible for events in Group A to be broadcast live in their entirety on free television. There are not any other requirements concerning whether live coverage of the events is mandatory. Group A includes, inter alia, the Olympic Games, the FIFA World Cup and the UEFA European Championship. For an event in Group B to be broadcast exclusively, it is required that another broadcaster can provide adequate secondary coverage. The other broadcaster shall be able to broadcast highlights or provide deferred coverage for at least 10 percent of the time of the event, but at least 30 minutes for an event that lasts at least one hour. It is also to be possible to cover the event live on national radio. Group B includes, inter alia, the IAAF World Athletics Championships. Television programme services are deemed generally available if they are provided free of charge and can be received by at least 95 percent of the population of the United Kingdom. These conditions are currently met by BBC 1, BBC 2, Channel 3, Channel 4 and Channel 5. The obligations in relation to other Member States apply to rights that have been acquired after the date the other state's list was approved by the European Commission. How the United Kingdom manages events on the lists of other countries 50 List of major events Several television networks on the Swedish market are established in the United Kingdom and are under British jurisdiction. How British regulations concerning events on the lists of other countries are worded is therefore of interest. If a British television network wants to broadcast an event that another EEA state has put on a list of major events, authorisation from communications regulator Ofcom is required if a substantial proportion of the public in that state are deprived of the possibility of following the event by live or deferred coverage in the manner the state has stipulated. This applies to rights that have been acquired after the date the other state's list was approved by the European Commission. The broadcasters are obliged to inform Ofcom if they have acquired the broadcasting rights to such events. When Ofcom determines whether an event may be broadcast, the regulator also considers inter alia, whether the rights have been acquired in open competition, how the broadcaster intends to exercise the rights and what it intends to do to ensure that a substantial proportion of the public is not deprived of the possibility of following the event, how the regulations are worded in the EEA state concerned and whether the broadcaster has attempted to follow the rules, as well as the practical opportunities for the rights holder to fulfil the purpose of the Audiovisual Media Services Directive's regulations, namely ensuring that the event is broadcast on free television and can be received by a substantial proportion of the public in the state in question. Ofcom may obtain opinions from authorities and television networks in the EEA state concerned. Norway As a general rule, events are to be broadcast live. As an exception, the broadcaster may make parts of the event available by live coverage, or whole or partial deferred coverage, if the event takes place at night between 12:00 a.m. and 6:00 a.m., if the event consists of several parallel events, or if other factors indicate that it would be of interest for the public that parts of the event are to be available by live coverage, or by whole or partial deferred coverage. Free television is defined as television channels that the public has access to without having to pay any additional costs above and beyond the license fee or the basic tier subscription fee. The basic tier subscription fee is defined as the least expensive channel package that the TV distributors offer or require subscription to in order to receive television signals. A substantial proportion of the public is deemed to have access to a television programme service if at least 90 percent of the viewers have a potential ability to receive the broadcasts. It is noteworthy that, during the work to create a Norwegian list, using actual ability as the basis for measuring availability instead was discussed. However, stakeholders objected that it would be complicated to produce such figures and that actual access was dependent on what television channels the operators chose to have in their channel packages, which could lead to a broadcaster being dependent on a certain operator to meet the availability requirement (see Notification by Norway pursuant to Article 14, paragraph 2, of Directive 2010/13/EU dated 22 April 2013). A broadcaster may only exercise broadcasting rights in another EU state in accordance with the measures that state has notified in the EEA, and for which it has received approval from the European Commission or the EFTA Surveillance Authority. 9.2. If an unqualified broadcaster purchases rights A part of the Commission's decisions approving the lists of other countries contains descriptions of the rules for when a broadcaster that does not broadcast on free television and meets the population coverage requirements, purchases the rights to an event that is on a list. For example, in Italy, the rules stipulate that the broadcaster, within a reasonable period of time in advance, shall publish an offer to transfer the rights on fair, reasonable and non-discriminatory terms, so that the event can be broadcast on free television and so that it can reach a substantial proportion of the public. In summary, the rules in Norway stipulate that a broadcaster that does not meet the requirements, no later than one month after receiving a request from a qualified broadcaster, must submit a written offer for resale of the broadcasting rights. If the broadcasters cannot agree on a reasonable price for the rights, either of the parties may request that the Norwegian authority Medietilsynet determine the compensation to be paid for the rights. 52 List of major events 9.3. Market impact The government has request information about what impact the lists of major events have had on the market in other countries. In the United Kingdom, an independent advisory panel conducted a review of the applicable list of major events in 2009 on behalf of the Labour government. The panel was of the opinion that, instead of having an A Group and a B Group for the events, the UK's list should only consist of one group, and recommended renewed criteria for when an event is deemed to be of national interest. The government then obtained opinions from the public, inter alia, regarding what market impact a list could result in. Stakeholders responded, inter alia, that a list leads to harmful effects for competition and the value that the events have for funding sports. However, in October 2012, the current government stated that there were not any plans to review the list (see the report entitled Listed sporting events from House of Commons Library dated 19 December 2012). In Ireland, a review of the country's list of major events was conducted in 2010, with certain changes that had been proposed (see Review of Designation of Events of Major Importance to Society under the Broadcasting Act 2009, by consulting firm Indecon, December 2010). Among other things, what financial consequences adding new events to a list could have was investigated. After consulting the stakeholders concerned, an estimate of potential effects was made. The following, inter alia, was revealed in the report. It is significant whether events must be made available by live coverage or slightly deferred coverage. For example, for the Six Nations Rugby Championship, it may be assumed that a live coverage requirement would have significant financial consequences for the sport, while only requiring deferred coverage was not estimated to have any major financial consequences. There are social and cultural advantages to live coverage of events, but these advantages must be weighed against the probable financial costs and, ultimately, the probability of whether the event would have been broadcast live even if it were not on a list. However, in May 2011, the government decided that the currently applicable list would not be changed. Otherwise, contact with the EU Member States that have lists of major events, as well as Denmark and Norway, did not reveal that any studies have been conducted concerning what effects other countries' lists of major events have had on the market. Appendix 1 Interviewed stakeholders Television networks Boxer MTG SBS Sveriges Television AB TV4 AB Sports organisations Swedish Sports Organization for the Disabled Swedish Olympic Committee Swedish Football Association Swedish Fencing Federation Swedish Athletics Association Swedish Hockey Association Swedish Ski Association Swedish Sports Confederation Others IEC in Sports The Nobel Foundation 54 List of major events Appendix 2 Viewer ratings for different events This data is from Mediamätningar i Skandinavien AB (MMS) and is based on measurements from a representative panel with 1,300 households or approximately 2,600 people. The entire TV population (3-99 years of age) is approximately 9 million. The number of viewers refers to the most watched competition(s) or match(es) for the most recent occurrence of the event. Event When, where, television programme service Number of viewers The Summer Olympic Games In China 8–24 August 2008. The event was broadcast on SVT. 1,245,000 people (14% of the TV population). The Winter Olympic Games In Canada, 12–28 February 2010. The event was broadcast on SVT. 1,330,000 people (15%). The FIFA World Cup for men In South Africa 11 2,659,000 people June–11 July 2010. (30%). The event was broadcast on SVT and TV4. The FIFA World Cup for women In Germany 26 June–17 July 2011. The event was broadcast on TV4. The UEFA European Football Championship for men In Poland and 2,942,000 (33%). Ukraine 8 June–1 July 2012. The event was broadcast on SVT and TV4. 1,800,000 people (20%). The UEFA European Football Championship for women In Finland 23 August–10 September 2009. The event was broadcast on TV4. 875,000 people (10%). The FIS Nordic World Ski Championship In Italy 21 February– 3 March 2013. The event was broadcast on SVT. 1,489,000 people (17%). The IAAF World Athletics Championships In South Korea 27 August–4 September 2011. The event was broadcast on SVT. 855,000 people (10%). IIHF Ice Hockey World Championship for men In Sweden and Finland 3–19 May 2013. The event was broadcast on TV4. 2,915,000 people (32%). Vasaloppet 3 March 2013 1,882,000 people (21%). The event was broadcast on SVT. The Nobel Banquet 10 December 2012. The event was broadcast on SVT. 1,200,000 people (13%). Table 2 Viewer ratings for different events, source MMS 56 List of major events
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