Joint selling of television rights – an EU competition law perspective and a comparative analysis of the impact of Regulation 1/2003

Abstract: This thesis will deal with two competition law issues, a substantive one as well as a procedural and somehow political one. The substantive issue is the joint sale of television rights of football clubs from a EU competition law perspective. The procedural subject of this thesis is the impact of Regulation 1/2003 on competition law enforcement and on the uniform application of the competition rules within the European Union. The thesis will firstly analyse the European Commission decision regarding the joint sale of television rights of the UEFA Champions League. This decision was an exemption decision, adopted under Art. 101(3) TFEU and the procedural Regulation 17/62. The analysis will focus on the legal assessment of the Commission under Art. 101(1) and 101(3) TFEU and carve out conclusions concerning the policy of the Commission. In a second step, the thesis will picture how European competition policy is reflected in the new enforcement regime of Regulation 1/2003 and which changes this new regime introduced. The centre of portrayal will be the two big procedural changes: the shift from ex ante to ex post control and the decentralisation of competition law enforcement and also a substantive novelty, i.e.e. the new enforcement tool of commitment decisions under Art. 9 of Regulation 1/2003 and the benefits and risks linked to that tool. By critically assessing the Commission’s own reports on the functioning of the new enforcement regime, the thesis will argue that it is necessary to take a closer look on the aims and approaches of the Commission and the NCAs in similar cases, to actually draw conclusions regarding the uniformity of the application of competition law and policy by the different competition law enforcers within the EU. The fourth and fifth chapter will therefore contain a comparative analysis of several decisions concerning the same matter. Following the UEFA Champions League case, the Commission adopted two commitment decisions under Art. 9 of Regulation 1/2003 regarding the joint sale of television rights. The Commission ended proceedings in the German Bundesliga case, 2005, and the FA Premier League case, 2006, by making the imposed commitments binding on the associations of football clubs. Those commitments were only binding until 2009 and 2013 respectively; it was for the NCA of Germany and the NRA of the UK to further deal with the joint sale of media rights of their national football leagues after those commitments expired. The German Bundeskartellamt adopted commitment decisions in 2012 and 2016 under national procedural rules and the British Ofcom closed its investigation in 2016 by referring back to the European Commission’s decision III from 2006. How the Commission and the two national authorities dealt with the joint sale and especially the legal assessment under Art. 101 TFEU and the commitments they used to target the anticompetitive constraints identified, will be assessed in detail and compared in this chapters. The thesis will show, that the new tool of commitment decisions under Art. 9 Regulation 1/2003, the margin of discretion for competition authorities regarding their allocation of investigative resources and the different approaches of the Commission and NCAs bear risks of an inconsistent policy and application of European competition law, that need to be kept in sight. On the other hand, the thesis will illustrate how Regulation 1/2003 and especially the competence to accept commitments provide a more flexible tool to react to the constant changes on economic markets. In the last chapter of the thesis, the author will give an outlook on how competition law and law enforcers within the EU could deal with the joint sale of media rights in the future.