Court of Appeal dismisses competition defence in Premier League case

The Court of Appeal has dismissed an appeal against a judgment in favour of the Football Association Premier League (FAPL) relating to the commercial use of foreign bought domestic decoder cards.

The defendant in this case was a pub landlord who used a decoder card which he had bought from a Danish reseller which was a licensed FAPL broadcaster for domestic purposes.  As a result, the reseller’s customers were not authorised to use the cards for commercial purposes such as a broadcast from a public house in the case of the defendant.

The Court of Appeal held that the restriction on the use of the cards for domestic or commercial purposes did not amount to an infringement of competition law.  The Court of Appeal also rejected the claim that the restriction on the use of the cards for domestic purposes was caused by territorial restrictions on the use of the cards.

The defendant relied on EU case law that had held that national legislation which prohibited the importation of foreign decoding devices was a restriction on the freedom to provide services under Article 56 of the TFEU (joined cases C-403/08 and C-429/08 Football Association Premier League Ltd and others v QC Leisure and others; Murphy v Media Protection Services Ltd).  However, the Court of Appeal held that the right on which FAPL relied in this case – the delimitation on the use of the cards for domestic purposes – was not of itself a restriction on competition between Member States.

The Court of Appeal also dismissed the argument that the defendant should be ordered to pay the difference between the commercial and domestic licensing rates as this would amount to a retrospective licence of the copyright works.

The Football Association Premier League Ltd v Luxton [2016] EWCA Civ 1097 (09 November 2016)