Final act in the judicial saga on the TV broadcasting rights for Italian football championship

By Federico Marini Balestra, Lucia Antonazzi

01-2021

On 28 December 2020, the Italian Supreme Administrative Court (Consiglio di Stato – "CDS") issued a judgment marking the last act in the national judicial dispute related to the assignment of the Lega Serie A (i.e. the main national professional league in Italy – "the League") broadcasting rights for the soccer seasons 2015 to 2018.

Background – Awarding of football broadcasting rights in Italy

The allocation of broadcasting rights in Italy is conducted according to Articles 8 and 9 of Legislative Decree n. 9/2008, aimed at imposing specific competitive bid procedures to allocate sport events audio-visual rights. Such procedures have to be organised by the entity owning these rights and to be addressed to the authorised communication operators and independent intermediaries.

Based on the offers received to the bid organised by the Lega Serie A back in 2014, the League found itself in a situation where it could be forced to assign all the relevant broadcasting rights to one of the two main pay-tv operators, either Sky or RTI-Mediaset ("Mediaset"). However, the League was conscious that the awarding should be compliant with the principle of the no single buyer rule stated in Legislative Decree n. 9/2008.

Faced with this conundrum, the bid was therefore closed with the allocation of the broadcasting rights for the majority of the Serie A football matches to the two main Italian pay-tv broadcasters i.e. Sky and Mediaset. Therefore, Sky and Mediaset conducted a private negotiation monitored by the League itself through its advisor ("Infront").

An anti-competitive broadcasting agreement according to the AGCM

Following this outcome, the Italian Competition Authority ("AGCM") started a formal cartel investigation into the League, Infront, Sky and Mediaset. The AGCM considered the agreement between Sky and Mediaset to be anti-competitive by object and to create barriers for new potential operators willing to enter the relevant market. As a consequence, it considered all the above-mentioned companies to be in violation with Article 101 TFEU and therefore imposed on them high administrative fines.

The AGCM decision was then appealed by the companies in front of the Lazio Regional Administrative Tribunal ("TAR"), which ruled against the AGCM by stating that the agreement reached by the two broadcasters could not be regarded as a cartel. In particular, the TAR underlined that the agreement between Sky and Mediaset originated from the need to preserve the main objective of Legislative Decree n. 9/2008, namely, to avoid the establishment of dominant positions within the relevant market. Indeed, according to the TAR, there was no collusive strategy behind the behaviours of Sky and Mediaset before or after the conclusion of the bid procedure organised by the League. On the contrary, the agreement mirrored the solution found by the League, based on the input given by Infront, to avoid the concentration of the majority of Serie A broadcasting rights in the hands of a single operator. The lack of a shared advantage for the two involved broadcasters therefore excluded the possibility to identify a cartel by object.

A case referred to the Italian Supreme Court

The CDS upheld the TAR decision by ruling as well against the AGCM. The Court highlighted again that the agreement was favoured by the League who, as main responsible of the bid procedure, had to ensure that the factual outcome of the bid was in line with the spirit of the law, i.e. maintaining the relevant market competitive and ensuring that consumers would not face a price increase. The CDS also excluded the fact that the agreement in question constituted a market-access barrier, as the only competitor supposed to be damaged according to the AGCM had submitted a peculiar bid, which would have excluded it from the market notwithstanding the existence of the agreement.

According to the CDS, also taking into account the principles governing the assessment of an anticompetitive agreement “by object”, the AGCM should have considered the restriction linked not only to the behaviours of the parties, but to the peculiarities of the market and to the nature of the resource (per se restricted), which cannot be assigned to a single operator, even if this latter makes an offer on the resource as a whole.

For more information please find the Court’s decision (in Italian) here.

For more information please contact Federico Marini Balestra or Lucia Antonazzi.