Since the UK Parliament has rejected the Withdrawal Agreement between the EU and the UK on 15 January 2019, a so-called “no deal” scenario becomes a bit more likely.
It goes without saying that this has a tremendous impact on the broadcasting sector as it is one of the sectors to typically benefit from the “country of origin”-principle under EU law. A broadcasting company having an establishment in one EU/EEA Member State can, by virtue of Article 3 of the 2010 EU Audiovisual Media Services Directive (“AVMSD“), freely broadcast into all other EU/EEA Member States. The latter can only intervene in very exceptional circumstances (in case of a serious risk for public health and public security).
A “no deal”-Brexit hits the broadcasting sector particularly hard as more than half of the +/- 2.200 channels that are broadcast EU-wide have a UK broadcasting license. In a “no deal”-Brexit scenario, such broadcasters must seek for a license in another EU Member State to freely broadcast their programs across the EU. And they furthermore have to do so before 29 March 2019, now that it is likely that there will be no transition period as was foreseen in the Withdrawal Agreement and which would have permitted the UK to continue the current “country of origin”-principle until 31 December 2020. Indeed and as confirmed by the UK governmental guidance released in September 2018, UK based broadcasting firms cannot benefit from access to the EU/EEA market on the basis of the “country of origin” principle in a hard Brexit scenario any more.
An alternative to assure their broadcasting in other EU Member States would be not to seek a license in another EU Member State but to rely on the European Convention on Transfrontier Television (CTT), which allows UK licensed broadcasters to broadcast programs in most EU Member States. This will in many cases not be a viable alternative as the CTT has the following important limitations: it does not apply to on-demand services, 6 EU Member States are not party to the CTT or did not ratify it , and there are questions as to its enforceability . Therefore, a relocation to another EU/EEA Member State remains the most plausible option.
Furthermore, UK broadcasting firms would also need to relocate in order to preserve many other benefits of its current access to the EU/EEA market. For example, without establishment in the EU broadcasters fall outside the scope of the EU Satellite and Cable Directive (which is in the course of review) and will have (it more difficult) to clear copyrights in the different EU/EEA Member States.
This being said, and has been confirmed by numerous reports, Luxembourg is an ideal venue for such relocation and a perfect gateway for currently UK licensed broadcasting companies to assure their access to the EU/EEA market. Luxembourg has a long standing tradition as a venue for broadcasting companies. Luxembourg hosted SKY before the latter moved to the UK in 1990 and still is the home country of a large number of channels of the RTL Group (including the most important Dutch commercial channels RTL4, RTL 5 and RTL7) and of United Media.
Luxembourg attracts a large number of broadcasting companies thanks to its regulatory landscape which has the following attractive features:
The attractive Luxembourg regulatory framework is not the only advantage for broadcasting companies that may want to relocate to Luxembourg, also the following other advantages that contribute to a favourable broadcasting ecosystem in Luxembourg, are worth mentioning:
This being said, the position of Luxembourg as a broadcasting hub can be resumed as follows in comparison to Ireland and the Netherlands, the two other jurisdictions that are frequently cited in the press as also being well positioned to welcome broadcasting companies that may want to relocate post-Brexit:
 Belgium, Denmark, Greece, the Netherlands, Luxembourg and Sweden
 See also the recent report of the European Audiovisual Observatory
Compliments of Nauta Dutilh, a member of the EACCNY