5. 5)Recital 48 in the preamble to the Directive states:

‘Television broadcasting rights for events of high interest to the public may be acquired by broadcasters on an exclusive basis. However, it is essential to promote pluralism through the diversity of news production and programming across the European Union and to respect the principles recognised by Article 11 of the Charter of Fundamental Rights of the European Union.’ [ ( 3 )]

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18) In its appeal, Sky argued, inter alia, that the obligation under Article 15(6) of the Directive and Article 5(4) of the FERG to grant the right to make short news reports for no consideration contravenes the Charter, the European Convention for the Protection of Human Rights and Fundamental Freedoms, ( 7 ) and Austrian constitutional law. Sky emphasised, in particular, that Article 15(6) of the Directive systematically – i.e. without establishing differences between the exclusive rights in question – precludes any compensation for the limitation to which the exclusive rights are subject. This would, most of the time, produce results that are seriously unfair. When the right of ownership is restricted, Article 17(1) of the Charter and the principle of proportionality require verification on a case-by-case basis as to whether compensation should be paid. Sky argues that, in the present case, the grant of the right to make short news reports considerably restricts its right to property.

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20) On the substance, the Bundeskommunikationssenat considers that it is essentially a case of determining whether it is permissible under primary Union law for Sky to be required to grant ORF the right to produce short news reports without being entitled to charge a fee in excess of the reimbursement of the additional costs directly incurred in providing access. According to the Bundeskommunikationssenat, the question arises as to whether the infringement of the fundamental right protected by Article 17 of the Charter entailed by such obligation is consistent with the principle of proportionality.

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23) For those reasons, the Bundeskommunikationssenat decided to stay the proceedings and to refer the following question to the Court for a preliminary ruling:

‘Is Article 15(6) of [the Directive] compatible with Articles 16 and 17 of the Charter ... and with Article 1 of Protocol No 1 to the [ECHR]?’

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25) This reference for a preliminary ruling asks the Court to assess the compliance of Article 15(6) of the Directive with the fundamental rights protected by Articles 16 and 17 of the Charter, that is to say, freedom to conduct a business, on the one hand, and the right to property, on the other.

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27) Article 16 of the Charter provides that ‘[t]he freedom to conduct a business in accordance with Community law and national laws and practices is recognised’. The explanations relating to this Article specify that the latter ‘is based on Court of Justice case-law which has recognised freedom to exercise an economic or commercial activity [ ( 11 )] and freedom of contract [ ( 12 )], and on Article 119(1) and (3) [TFEU], which recognises free competition.’ ( 13 )

28) Article 17 of the Charter provides, in paragraph 1, that ‘Everyone has the right to own, use and dispose of and bequeath his or her lawfully acquired possessions. No one may be deprived of his or her possessions, except in the public interest and in the cases and under the conditions provided for by law, subject to fair compensation being paid in good time for their loss. The use of property may be regulated by law insofar as is necessary for the general interest.’ The explanations related to this article indicate that it corresponds to Article 1 of Additional Protocol No 1 to the ECHR. Thus, under Article 52(3) of the Charter, the right of property protected by Article 17 of the Charter has the same meaning and scope as under the ECHR. ( 14 )

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30) In line with this case-law, Article 52(1) of the Charter lays down the rules relating to the limitations that can be made to the rights and freedoms recognized by the Charter. Article 52(1) thus accepts that limitations may be imposed on the exercise of rights such as the right to property and the freedom to conduct a business set out in Articles 17 and 16 of the Charter, as long as the limitations are provided for by law, respect the essence of those rights and freedoms and, in compliance with the principle of proportionality, are necessary and genuinely meet objectives of general interest recognised by the European Union or the need to protect the rights and freedoms of others.

31) I will examine, first, whether the provisions contained in Article 15(6) of the Directive infringe the rights recognised by Articles 16 and 17 of the Charter. If so, it will then be necessary to verify whether such an infringement is justified.

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38) Having established infringement of freedom to conduct a business and the right of property, we must now consider whether it is justified under Article 52(1) of the Charter.

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39) I would observe, first, that the infringement of the rights recognized by Articles 16 and 17 of the Charter must be regarded as ‘provided for by law’ within the meaning of Article 52(1) of the Charter. In fact, under the terms of Article 15(6) of the Directive, when compensation is provided for, it is not to exceed the additional costs incurred directly by the provision of access to short extracts.

40) Next, as to whether the infringement of the rights protected is in order to safeguard an objective of general interest recognized by the Union or the need to protect the rights and freedoms of others, I would observe that the right to short extracts provided for in Article 15(6) of the Directive meets the concern, stated by the EU legislature in recital 48 of the Directive, ‘to promote pluralism through the diversity of news production and programming across the Union and to respect the principles recognised by Article 11 of the [Charter]’.

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44) Freedom of expression and information are enshrined in Article 11 of the Charter. Article 11(1) provides that ‘[e]veryone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers’. Besides, Article 11(2) of the Charter provides that ‘[t]he freedom and pluralism of the media shall be respected’. The explanations relating to Article 11 of the Charter specify that it corresponds to Article 10 of the ECHR.

45) The reason for the infringement of the rights recognised by Articles 16 and 17 of the Charter having thus been identified, it is now necessary to verify whether the limitation on the rights enshrined by these two articles is proportionate to the legitimate aim pursued. As this aim is primarily the need to protect another fundamental right, namely the freedom to receive information and media pluralism, the review of proportionality which I shall now conduct calls for the weighing of several fundamental rights. The issue is therefore whether, in adopting Article 15(6) of the Directive, the EU legislature achieved a fair balance between the right to property and the freedom to conduct a business, on the one hand, and the freedom to receive information and media pluralism, on the other.

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79) The approaches adopted by the Bundesverfassungsgericht and by the Verfassungsgerichtshof do not seem to me automatically transferable to the review of the validity of Article 15(6) of the Directive in the light of Articles 16 and 17 of the Charter. First, I have already explained the reasons why my assessment follows closely the way Article 15 of the Directive is structured and with particular reference to the conditions and limits determining the right to short news reports and delimiting its scope.