There are four basic freedoms at the core of the EU single market:

• free movement of goods,
• free movement of people,
• free movement of services and
• free movement of capital.

Based on this, one of the 10 priorities of the Juncker’s Commission for the period 2015-2019 is the establishment of a Digital Single Market (DSM) in the EU, as demonstrated in May 2015 when the Digital Single Market Strategy was adopted. On this topic, in his speech as the Candidate for the President of the European Commission, in the European Parliament, Jean Claude Juncker stated: „We can ensure that consumers can access services, music, movies and sports events on their electronic devices wherever they are in Europe and regardless of borders.“ Similarly, in the Digital Single Market Strategy it is stated as follows: „…preventing unfair discrimination against consumers and businesses when they try to access content or buy goods and services online within the EU.Discrimination can come in the form of nationality, residence or geographical location restrictions which run counter to the basic principles of the EU.” 

Current (the latest) legal initiatives that round off the story of the DSM

A number of well-known legal initiatives have been taken in the direction of the establishment of the DSM. The most important ones for the telecom sector were:

• Abolition of roaming charges,
• Introduction of the rules on Net neutrality and
• New regulatory framework for telecommunications (Electronic Communication Code – ECC).

All these legal initiatives and regulations that had emerged from them created technological regulatory prerequisites for the establishment of the DSM for access to online content, including live sports content, regardless of the end user’s residence.

In line with the abovementioned, in the last few years, a number of parallel legal initiatives that directly or indirectly regard the provision of online content services and the establishment of a truly DSM have been initiated in the EU. The following two are the most important:

• Regulation on cross border portability of online content services and
• Regulation on addressing unjustified geo-blocking.

Both of them concern providers of online content and, among others, relate to live sports content. Each of these two regulations may have a major impact on viewing live sports content in the EU, the way and geographic scope of the awarding sports TV rights in the EU, the way of providing live sports content services to end users and the development of new business models in the future.

Small but important step for end users – Content portability

Since April 2018, Regulation on cross border portability of online content services has been in force. By this Regulation end user who has purchased a package of specific online content (eg live sports) in an EU Member State where he is a resident, while occasionally traveling to another Member State of the EU (there is not exact limited maximum period of time), may use the purchased content in another EU Member State, and must not be geo-blocked. In my opinion, this is a small step that will undermine territorial fragmentation, although for the time being the territorial principle of granting sports TV rights is being retained because, under the provisions of the Regulation, service providers may offer cross-border portability of online content without the need to renegotiate contracts. 

The step that has not been made so far – unjustified geo-blocking

In February 2018, a Regulation on addressing unjustified geo-blocking was adopted. Unlike other services, the Regulation does not cover audio-visual services. Due to that fact, end user that has residence in one Member State cannot buy online content services from another Member State. The Regulation states: „Audiovisual services, including services the principle purpose of which is the provision of access to broadcasts of sports events and which are provided on the basis of exclusive territorial licenses, are excluded from the scope of this Regulation.”

It is good news for end users across the EU that Regulation comprises „review clause“ in a way that within two years from the adoption and every five years after that, an analysis of the effects of the Regulation and the scope of the services covered by the regulation should be made. Consequently, the European Commission, according to the published data, has published a tender for the preparation of a study, which will analyse the impact of the Regulation and inclusion of audio visual services (including sports content) within the scope of Regulation prohibiting geo-blocking.

In other words, the issue of audio visual content may again come to the table at some point, and until then, there will be real life experiences regarding content portability and legislators will be able to make certain conclusions about whether the geo-blocking of audio visual content is consistent with the definition and expectations from the DSM.

Analysis of the impact of possible prohibition of geo-blocking on future business models related to live sports

In case that legislators decided, after two, seven or more years from the adoption of the Regulation, to include audio visual services, and consequently live sports, in the range of services covered by the prohibition of unjustified geo-blocking, this would enable end user to buy a subscription for online live sports content in any EU Member State, regardless of its place of residence and use it on the territory of the entire EU.

What would this mean for the way sports TV rights are awarded in the EU (territorial principle), what would be the impact on the sports organizations as rights holders, operators, rights buyers, end users, etc.?

Hereafter I state my opinion on the impact of the possible prohibition of geo-blocking on future business models related to the distribution of sports TV rights in the EU.