Aspects of European Competition Law in the Light of the European Courts of Luxenbourg - Term Paper Example

EUROPEAN UNION LAW OF THE EUROPEAN COURTS OF it is immaterial whether or not the parties involved have engaged in an agreement or a concerted practice. It makes no difference whether price fixing or some other severely anti-competitive practice results from an agreement or a concerted practice. The purpose of both terms is to ensure that the undertakings do not jointly resolve to coordinate their behaviour. Indeed, in some cases behaviour may display characteristics of both and it may be possible to categorize it as an agreement or, in the alternative, as concerted practices." In the light of the European Courts of Luxemberg, does European Media display characteristics of agreement or concerted practice For years, television has been more than just an object of entertainment for us. It is not only an upgradeable property, but it has been one of the greatest influences of our lives. Everyday, we checked on our television to know the latest news about our community, about stocks and investments, about movies and of what's happening all over the world. Since the first television broadcast in England in 1936, using a modern level of definition of more than 240 lines, new developments had been made including CableCARD , Digital television (DTV), Digital Video Recorders, Direct Broadcast Satellite TV (DBS), DVD, High Definition TV (HDTV) and many others. Through television, a lot of telecommunication companies has been put up which provides work for millions of people. It is where product commercials are aired. It is also where public concerns and responsibilities were discussed. While each and every national government has set up its own rules with regards to telecommunication, the European Union has also set its guidelines and policies to maintain and level the playing fields of the telecommunication competition. In this era where digital technologies were making its way to communication highways and prospectively play a much bigger role in the future, the European Union has identified the needs of introducing digital technologies harmoniously into the market. By means of a consensus process involving all the relevant economic agents, this aim can be easily achieved. This report investigates several aspects of European Competition Law in the light of the European courts of Luxenbourg considering the aims of competition law in the EU, and the history of European competition law. In this paper, the main elements of the European Union with regards to digital Television (DTV) and High Definition Television (HDTV) will be critically assessed. There are 6 different areas of audiovisual activities which are covered by the commission. According to the Principles and guidelines for the Community's audiovisual policy in the digital age (2005), On the basis of these principles, the Commission intends to take action in the following fields: cultural and linguistic diversity; the new "Media plus" programme, considered to be of crucial importance for the future of the European audiovisual industry. In all areas of action (training, development, distribution, promotion) this new programme will take account of the new digital environment. Research and development. The Fifth Framework Programme for Research and Development provides for a number of action lines of interest to the audiovisual sector. The external dimension of Community audiovisual policy will necessarily hinge around two central elements: the enlargement of the European Union and the new round of multilateral trade negotiations in the framework of the World Trade Organisation. The "Television without Frontiers "Directive This Directive which was adopted in 1989 and revised in 1997, based from Television broadcasting activities: "Television without Frontiers" (TVWF) Directive (2006) is the cornerstone of the European Union's audiovisual policy. Its two basic principles were: the free movement of European television programmes within the internal market; and the requirement that television channels, where practicable, reserve over half their broadcasting time for European works ("broadcasting quotas"). With these principles, the broadcasting companies were not restricted from transmitting shows on their territory of television programmes from other Member States, provided otherwise that suspension of programs be implemented if it violates and does not protect the morals of the minors. Being the basic source of information, any aired shows influences people especially if minors are unguided. Access to audiovisual content In today's digital broadcasting era, almost everything is readily accessible. In digital television, the viewer will only require an Electronic Programme Guide (EPG). Developments in technology could also lead to a situation in which viewers can choose from a range of EPGs, in which case regulation may have to be reassessed. Where everything is being accessible, it would be a matter of minutes when unguided minors can access almost everything. In Managing Agent for Moving Pictures and Sound in UK Further and Higher Education B . U . F . V . C (no date) the British Universities Film & Video Council (BUFVC)Through its Off-Air Recording Back-Up Service (which records and retains some 36,000 hours of television per year) it also provides educational licence-holders with post-transmission access to video copies of television programmes broadcast in the UK. Copyright protection and the fight against piracy Piracy is stealing. Now that there are many ways of accessing audiovisual works, many works can be easily copied and distributed thus violating the protection of the copyright of the audiovisual makers. This means that the protection of copyright and related rights must constitute a central element of audiovisual policy. Many had already called to a fight against piracy for many had already produced films and documentaries without permission. The Global Record Industry Heads Call on UK to Lead Fight for Music Rights and to Stop Piracy in the Internet Age (1998) reported about the Heads of the international recording industry today called on Britain to champion its future in the digital era by pushing for strong new international copyright laws and for tougher policing by governments against global piracy. They asked for a crucial European Copyright Directive, aimed at allowing record companies to trade music on-line and with new digital formats, to be strengthened as it passes through the European Parliament in Strasbourg in December. And they appealed to Britain to lead the campaign for strict new legal controls on the CD manufacturing industry worldwide. Protection of minors Many traditional approaches in protecting the minors proved to be ineffective in today's digital. In this regard, the Council Recommendation on the Protection of Minors and Human Dignity illustrates the importance of providing for self-regulation measures alongside regulations to improve the protection of minors. According to the Protection of minors and human dignity: right of reply (no date) the UK strongly supports action to protect minors and believes that a range of measures need to be taken if such action is to be effective. The UK agrees with the propositions in this paper about the continuation of the TVWF rules on the protection of minors and the protection of human dignity as they apply to what the papers describe as 'linear services' But these episodes exposed a mismatch between the TVWF jurisdiction rules and the realities of digital satellite broadcasting technology, and the removal of this mismatch would make effective enforcement easier. The UK would support the suggestion which has been made in the Council that the TVWF jurisdiction rules be re-examined with this issue in mind. Advertising and sponsorship The "Television without Frontiers" Directive contains a number of provisions on advertising which serve to protect consumers as well as the integrity of audiovisual works and editorial independence. Digital technology will inevitably create a whole new range of advertising and marketing possibilities which should serve to protect consumers as well as the integrity of audiovisual works and editorial independence. According to Principles and guidelines for the Community's audiovisual policy in the digital age (2005), in order to guarantee respect of the fundamental principles such as the prohibition of surreptitious advertising and the need for clear demarcation between advertising and other content. The legal framework for the cinema sector In Principles and guidelines for the Community's audiovisual policy in the digital age (2005), where the principles for the development of Community support instruments for the European audiovisual industry are concerned, the communication points to the complementarities of national and Community mechanisms. It also reiterates the guiding principles of the MEDIA I and MEDIA II programmes, focusing on distribution, the development of projects and production companies and vocational training. The emphasis with these support instruments will be on adaptability and flexibility to keep pace with the technological development of the market. In the creation of a framework for full competition in telecommunications services, the Council Resolution confirmed that: the provision of public services should be liberalised throughout the Union by 1 January 1998, while maintaining universal service (see section III.A.6). For countries like Spain, Ireland, Greece and Portugal, an additional transitional period of up to five years could be granted to allow for necessary structural adjustments, particularly of tariffs, and a possible additional period of two years could apply to countries with very small networks (Luxembourg) if justified. A case based from Magill EEC Case Database/Compulsory Licensing (1996) was delivered in open court in Luxembourg on April 1995, where, ITP, RTE and BBC practised the following policy with regard to the dissemination of programme listings. They provided their programme schedules free of charge, on request to daily and periodical newspapers, accompanied by a licence for which no charge was made setting out the conditions under which that information could be reproduced. Daily listings and, if the following day was a public holiday, the listings for two days, could thus be published in the press, subject to certain conditions relating to the format of publication. Publication of 'highlights' of the weeks was also authorised. ITP, RTE and the BBC ensured strict compliance with the licence conditions by instituting legal proceedings, where necessary, against publications which failed to comply with them. Magill TV Guide Ltd ('Magill') attempted to publish a comprehensive weekly television guide but was prevented from doing so by the appellants and the BBC, which obtained injunctions prohibiting publication of weekly television listings. The court dismisses the appeals. The reasons given by the Court of First Instance for this conclusion were based on the effects or RTE's refusal to authorise third parties to publish its weekly listing on the structure of competition in the territory of Ireland and Northern Ireland. These, the Court of First Instance found, excluded all potential competition on the market in question, 'thus in effect maintaining the partitioning of the markets... [of] Ireland and Northern Ireland respectively. It found that the appreciable effect which the policy in question had on potential commercial exchanges between Ireland and United Kingdom was evidenced by the specific demand for a general television magazine. The Court of First Instance added that 'the relevant geographical area, within which a single market in television broadcasting services has already been achieved, likewise represents a single market for information on television programmes, particularly since trade is greatly facilitated by a common language' (paragraph 77). RTE states that Community competition rules ate not intended to remedy situations which are purely internal to a Member State and it disputes the finding of the Court of First Instance that RTE had in 'effect maintain[ed] the partitioning of the markets represented by Ireland and Northern Ireland respectively.' RTE asserts that it has observed one and the same policy in respect of supply of weekly programme listings and licensing, irrespective of the place of establishment of the undertakings concerned. It denies ever having stopped or hindered the export or import of television guides. According to Pieter-Bart Visscher and Timen Swijtink when the ECC finds evidence of unfair competition it may impose substantive fines to ensure that competition is not distorted or restricted. In case of mergers the ECC can prohibit a fusion when there is chance of misuse the market position of the newly formed company. To enlarge the power of the ECC, also the national courts can apply directly the prohibitions of the Treaty. However, this is not regularly done. The ECC is usually the institution that investigates and enforces the laws. The chair of the ECC is the Dutchwoman Neelie Kroes, who is often criticised for her harsh way of dealing with unfair competition. Competition law is imposed to avoid dead weight loss, what occurs when there is unfair competition. REFERENCES Pieter-Bart Visscher and Timen Swijtink (no date) European Competition Law Law, Justice, and Society SSC 171 Paper Three, Retrieved August 20, 2006 from http://www.nemit.net/papers/ssc171_paper3.pdf#search='European%20Competition%20Law' (1996) Magill EEC Case Database/Compulsory Licensing, HyperLaw, Inc., Retrieved August 20, 2006 from http://www.hyperlaw.com/magill.htm (2005) Principles and guidelines for the Community's audiovisual policy in the digital age, EUROPA, Retrieved August 19, 2006 from http://europa.eu/scadplus/leg/en/lvb/l24223.htm (2006) Television broadcasting activities: "Television without Frontiers" (TVWF) Directive, EUROPA, Retrieved August 19, 2006 from http://europa.eu/scadplus/leg/en/lvb/l24101.htm (October 1998) Global Record Industry Heads Call on UK to Lead Fight for Music Rights and to Stop Piracy in the Internet Age) Retrieved August 19, 2006 from http://www.grayzone.com/ifpi102298.htm (no date) Protection of minors and human dignity: right of reply, Department for Culture, Media and Sport, Retrieved August 19, 2006 from http://www.culture.gov.uk/NR/rdonlyres/8AD773D9-2327-4090-951E-08DBF2DBDEC3/0/minorshumandignityror.pdf#search='Protection%20of%20minors%20UK' Read More