CELEX: 62008TJ0068
Television broadcasting
Article 3a of Directive 89/552/EEC
Measures taken by the United Kingdom concerning events of major importance to United Kingdom society
Football World Cup
Decision declaring the measures compatible with Community law
Statement of reasons
Articles 43 EC, 49 EC and 86 EC
Right to property

Legal context
Article 43 EC is worded as follows:
‘Within the framework of the provisions set out below, restrictions on the freedom of establishment of nationals of a Member
State in the territory of another Member State shall be prohibited. Such prohibition shall also apply to restrictions on the
setting-up of agencies, branches or subsidiaries by nationals of any Member State established in the territory of any Member
State.
Freedom of establishment shall include the right to take up and pursue activities as self-employed persons and to set up and
manage undertakings, in particular companies or firms within the meaning of the second paragraph of Article 48 [EC], under
the conditions laid down for its own nationals by the law of the country where such establishment is effected, subject to
the provisions of the chapter relating to capital.’
The first paragraph of Article 49 EC is worded as follows:
‘Within the framework of the provisions set out below, restrictions on freedom to provide services within the Community shall
be prohibited in respect of nationals of Member States who are established in a State of the Community other than that of
the person for whom the services are intended.’
Article 86(1) EC provides: ‘[i]n the case of public undertakings and undertakings to which Member States grant special or
exclusive rights, Member States shall neither enact nor maintain in force any measure contrary to the rules contained in this
Treaty, in particular to those rules provided for in Article 12 [EC] and Articles 81 [EC] to 89 [EC]’.
Article 3a of Council Directive 89/552/EEC of 3 October 1989 on the coordination of certain provisions laid down by law, regulation
or administrative action in Member States concerning the pursuit of television broadcasting activities (OJ 1989 L 298, p. 23),
as inserted by Directive 97/36/EC of the European Parliament and of the Council of 30 June 1997 amending [Directive 89/552]
(OJ 1997 L 202, p. 60), provides:
‘1.      Each Member State may take measures in accordance with Community law to ensure that broadcasters under its jurisdiction do
not broadcast on an exclusive basis events which are regarded by that Member State as being of major importance for society
in such a way as to deprive a substantial proportion of the public in that Member State of the possibility of following such
events via live coverage or deferred coverage on free television. If it does so, the Member State concerned shall draw up
a list of designated events, national or non-national, which it considers to be of major importance for society. It shall
do so in a clear and transparent manner in due and effective time. In so doing the Member State concerned shall also determine
whether these events should be available via whole or partial live coverage, or where necessary or appropriate for objective
reasons in the public interest, whole or partial deferred coverage.
2.      Member States shall immediately notify to the Commission any measures taken or to be taken pursuant to paragraph 1. Within
a period of three months from the notification, the Commission shall verify that such measures are compatible with Community
law and communicate them to the other Member States. It shall seek the opinion of the Committee established pursuant to Article
23a. It shall forthwith publish the measures taken in the
Official Journal of the European Communities
and at least once a year the consolidated list of the measures taken by Member States.
3.      Member States shall ensure, by appropriate means, within the framework of their legislation that broadcasters under their
jurisdiction do not exercise the exclusive rights purchased by those broadcasters following the date of publication of this
Directive in such a way that a substantial proportion of the public in another Member State is deprived of the possibility
of following events which are designated by that other Member State in accordance with the preceding paragraphs via whole
or partial live coverage or, where necessary or appropriate for objective reasons in the public interest, whole or partial
deferred coverage on free television as determined by that other Member State in accordance with paragraph 1.’
Recitals 18 to 22 of Directive 97/36 are worded as follows:
‘(18) Whereas it is essential that Member States should be able to take measures to protect the right to information and to ensure
wide access by the public to television coverage of national or non-national events of major importance for society, such
as the Olympic games, the football World Cup and European football championship; whereas to this end Member States retain
the right to take measures compatible with Community law aimed at regulating the exercise by broadcasters under their jurisdiction
of exclusive broadcasting rights to such events;
(19)      Whereas it is necessary to make arrangements within a Community framework, in order to avoid potential legal uncertainty and
market distortions and to reconcile free circulation of television services with the need to prevent the possibility of circumvention
of national measures protecting a legitimate general interest;
(20)      Whereas, in particular, it is appropriate to lay down in this Directive provisions concerning the exercise by broadcasters
of exclusive broadcasting rights that they may have purchased to events considered to be of major importance for society in
a Member State other than that having jurisdiction over the broadcasters, …;
(21)      Whereas events of major importance for society should, for the purposes of this Directive, meet certain criteria, that is
to say be outstanding events which are of interest to the general public in the European Union or in a given Member State
or in an important component part of a given Member State and are organised in advance by an event organiser who is legally
entitled to sell the rights pertaining to that event;
(22)      Whereas, for the purposes of this Directive, “free television” means broadcasting on a channel, either public or commercial,
of programmes which are accessible to the public without payment in addition to the modes of funding of broadcasting that
are widely prevailing in each Member State (such as licence fee and/or the basic tier subscription fee to a cable network)’.

Background to the case and contested decision
The applicant, the Fédération Internationale de Football Association (FIFA), is an association of 208 national football associations
and is the world governing body of football. Its objectives are, inter alia, to promote football globally and to organise
its international competitions. FIFA’s primary source of income is the sale of television broadcasting rights to the finals
of the football World Cup (‘the World Cup’), which it organises.
By decision of 25 June 1998, the Secretary of State for Culture, Media and Sports of the United Kingdom of Great Britain and
Northern Ireland (‘the Secretary of State’), acting pursuant to Part IV of the Broadcasting Act 1996, drew up a list of events
of major importance for United Kingdom society, including the World Cup.
The adoption of that list was preceded by a consultation of 42 different bodies launched by the Secretary of State in July
1997 concerning the criteria in the light of which the importance of various events for United Kingdom society was to be assessed.
That procedure led to the adoption of a list of criteria contained in a document from the Ministry of Culture, Media and Sports
dated November 1997, which the Secretary of State was to apply for the purpose of drawing up a list of events of major importance
for United Kingdom society. According to that document, an event is particularly liable to be included in the list when it
has a special national resonance, not simply a significance to those who ordinarily follow the sport concerned. According
to that same document, in order to qualify as such, a national or international sport must be pre-eminent or involve the national
team or athletes from the United Kingdom. Of the events which fulfil those criteria, those which command large television
audiences or which are traditionally broadcast live on free television channels stand a greater chance of being included in
the list. For the purposes of the assessment, the Secretary of State also takes into account other factors relating to the
consequences for the sport concerned, such as the suitability of live broadcasting of an event in its entirety, the impact
on income for the sport in question, the consequences for the broadcasting market and whether there are arrangements to ensure
that access to the event is available by means of delayed coverage or radio commentary.
Subsequently, the Secretary of State launched a consultation procedure pursuant to section 97 of the Broadcasting Act 1996
concerning which specific events to include in the list. During that consultation procedure, the Secretary of State sought
the views of a number of bodies and interested parties and of holders of television broadcasting rights, such as FIFA. Moreover,
the Advisory Group on listed events, established by the Secretary of State, delivered its opinion on the events to be included,
proposing with respect to the World Cup the inclusion of the final, the semi-finals and matches involving the national teams
of the United Kingdom.
Under section 98 of the Broadcasting Act 1996, as amended by the Television Broadcasting Regulations 2000, broadcasters are
divided into two categories. The first category includes broadcasters providing a free service which, in addition, can be
received by at least 95% of the population of the United Kingdom. The second category includes broadcasters which do not fulfil
those conditions.
Moreover, under section 101 of the Broadcasting Act 1996, as amended by the Television Broadcasting Regulations 2000, a television
programme provider coming within one of those categories can broadcast live all or part of an event included in the list only
if a provider coming within the other category can broadcast live, in whole or in part, the same event in the same, or essentially
the same, region. If that condition is not fulfilled, a broadcaster wishing to broadcast all or part of the event in question
must obtain prior authorisation from the Office of Communications.
According to section 3 of the Code on Sports and Other Listed and Designated Events, as in force in 2000, the events included
in the list of events of major importance for society are divided into two groups. ‘Group A’ includes events which cannot
be covered live on an exclusive basis if certain criteria are not met. ‘Group B’ includes events which may be broadcast live
on an exclusive basis only if arrangements have been made to ensure deferred broadcast.
Under section 13 of the Code on Sports and Other Listed and Designated Events, an authorisation may be granted by the Office
of Communications for listed ‘Group A’ events, which includes the World Cup, where the relevant broadcasting rights have been
openly offered on equitable and reasonable terms to all television broadcasting bodies and no body in the other category has
expressed its interest in acquiring them.
By letter of 25 September 1998, the United Kingdom provided the Commission of the European Communities with the list of events
drawn up by the Secretary of State, as required by Article 3a(2) of Directive 89/552, together with other information concerning
the United Kingdom legislation adopted pursuant to Article 3a(1) of the same directive. Following an exchange of correspondence
between the United Kingdom and the Commission and a fresh notification of measures on 5 May 2000, the Director-General of
the Directorate-General (DG) Education and Culture informed the United Kingdom, by letter of 28 July 2000, that the Commission
would not raise objections to the United Kingdom measures, which would, accordingly, be published shortly thereafter in the
Official Journal of the European Communities
.
By judgment of 15 December 2005 in Case T‑33/01
Infront WM
v
Commission
[2005] ECR II‑5897, this Court annulled the decision contained in the letter of 28 July 2000, on the ground that it constituted
a formal decision within the meaning of Article 249 EC that the College of Commissioners itself ought to have adopted (
Infront WM
v
Commission
, paragraph 178).
Following the judgment in
Infront WM
v
Commission
, paragraph 15 above, the Commission adopted Decision 2007/730/EC of 16 October 2007 on the compatibility with Community law
of measures taken by the United Kingdom pursuant to Article 3a(1) of [Directive 89/552] (OJ 2007 L 295, p. 12) (‘the contested
decision’).
The operative part of the contested decision reads as follows:
‘Article 1
The measures taken pursuant to Article 3a(1) of Directive [89/552] and notified by the United Kingdom to the Commission on
5 May 2000, as published in the
Official Journal of the European Communities
C 328 of 18 November 2000, are compatible with Community law.
Article 2
The measures, as set out in the Annex to this Decision, shall be published in the
Official Journal of the European Union
in accordance with Article 3a(2) of Directive [89/552].’
The statement of reasons for the contested decision includes the following recitals:
‘(4)      The list of events of major importance for society included in the [United Kingdom] measures was drawn up in a clear and transparent
manner and a far-reaching consultation had been launched in the [United Kingdom].
(5)      The Commission was satisfied that the events listed in the [United Kingdom] measures met at least two of the following criteria
considered to be reliable indicators of the importance of events for society: (i) a special general resonance within the Member
State, and not simply a significance to those who ordinarily follow the sport or activity concerned; (ii) a generally recognised,
distinct cultural importance for the population in the Member State, in particular as a catalyst of cultural identity; (iii)
involvement of the national team in the event concerned in the context of a competition or tournament of international importance;
and (iv) the fact that the event has traditionally been broadcast on free television and has commanded large television audiences.
(6)      A significant number of the events listed in the [United Kingdom] measures, including the summer and winter Olympic Games
as well as the World Cup Finals and the European Championship Finals tournaments, fall within the category of events traditionally
considered to be of major importance for society, as referred to explicitly in recital 18 of Directive [97/36]. These events
have a special general resonance in the [United Kingdom] in their entirety, as they are particularly popular with the general
public (irrespective of the nationality of the participants), not just with those who usually follow sports events.
…
(18)      The listed events, including those to be considered as a whole and not as a series of individual events, have traditionally
been broadcast on free television and have commanded large television audiences. …
(19)      The [United Kingdom] measures appear proportionate so as to justify a derogation from the fundamental EC Treaty freedom to
provide services on the basis of an overriding reason of public interest, which is to ensure wide public access to broadcasts
of events of major importance for society.
(20)      The [United Kingdom] measures are compatible with [the EC Treaty] competition rules in that the definition of qualified broadcasters
for the broadcasting of listed events is based on objective criteria that allow actual and potential competition for the acquisition
of the rights to broadcast these events. In addition, the number of listed events is not disproportionate so as to distort
competition on the downstream free television and pay television markets.
(21)      The proportionality of the [United Kingdom] measures is reinforced by the fact that a number of the events listed require
adequate secondary coverage only.
…
(24)      It follows from the judgment [in
Infront WM
v
Commission
] that the declaration that measures taken pursuant to Article 3a(1) of Directive [89/552] are compatible with Community law
constitutes a decision, which must therefore be adopted by the Commission. Accordingly, it is necessary to declare by this
Decision that the measures notified by the [United Kingdom] are compatible with Community law. The measures, as set out in
the Annex to this Decision, should be published in the
Official Journal of the European Union
in accordance with Article 3a(2) of Directive [89/552].’

Procedure and forms of order sought
By document lodged at the Registry of the Court on 6 February 2008, FIFA brought the present action.
By separate document, lodged at the Court Registry on 28 February 2008, FIFA asked the Court to invite the Commission, by
way of measures of organisation of procedure, to produce a number of documents which, in its view, are essential in order
for it to exercise its rights and for the purposes of the judicial review which the Court is called upon to conduct.
By decision of 26 May 2008, the Seventh Chamber of the Court decided not to order at that stage the measures of organisation
of procedure requested by FIFA.
By documents lodged at the Court Registry on 11 and 16 June 2008, the United Kingdom and the Kingdom of Belgium applied for
leave to intervene in the present proceedings in support of the form of order sought by the Commission.
By order of 14 August 2008, the President of the Seventh Chamber of the Court granted them leave to intervene. The interveners
lodged their statements in intervention and FIFA lodged its observations on those statements within the prescribed time-limits.
By order of 15 December 2009, the present case was joined with Case T‑385/07
FIFA
v
Commission
for the purposes of the oral procedure.
Acting on a report of the Judge-Rapporteur, the Court decided to open the oral procedure and, by way of measures of organisation
of procedure, put one question to FIFA and two to the Commission. The Court’s questions were replied to within the prescribed
time-limit.
FIFA claims that the Court should:
–        annul the contested decision, in whole or in part, in so far as it concerns the World Cup;
–        order the Commission, the Kingdom of Belgium and the United Kingdom to pay the costs.
The Commission contends that the Court should:
–        dismiss the action;
–        order FIFA to pay the costs.
The Kingdom of Belgium and the United Kingdom contend that the Court should dismiss the action.

Law
1.
Admissibility

Arguments of the parties
The Kingdom of Belgium submits that the action is inadmissible on the grounds that the contested decision is not of direct
or individual concern to FIFA and that the Court has no jurisdiction to rule on the lawfulness of national measures. Nor did
FIFA bring any action against the national measures before the national courts, so that its action before the Court was brought
out of time, as any annulment of the contested decision will not affect the validity of the national legislation at issue.
FIFA submits that the contested decision is challengeable and, moreover, is of direct and individual concern to it.

Findings of the Court
The grounds of inadmissibility put forward by the Kingdom of Belgium raise a matter of public policy, since they involve FIFA’s
legal standing to bring proceedings, compliance with the time-limit and the Court’s jurisdiction. The Court should therefore
examine those pleas of inadmissibility of its own motion, even though, under the fourth paragraph of Article 40 of the Statute
of the Court of Justice and Article 116(3) of the Rules of Procedure of the General Court, the Kingdom of Belgium, as intervener,
does not have standing to raise the issue as the Commission does not dispute the admissibility of the action (see, to that
effect and by analogy, Case C‑313/90
CIRFS and Others
v
Commission
[1993] ECR I‑1125, paragraphs 21 to 23).
With respect to the issue whether FIFA is directly concerned, it must be borne in mind that, according to settled case-law,
the condition that the decision must be of direct concern to a natural or legal person, as laid down in the fourth paragraph
of Article 230 EC, requires the contested Community measure to affect directly the legal situation of the individual and leave
no discretion to its addressees, who are entrusted with the task of implementing it, such implementation being purely automatic
and resulting from Community rules without the application of other intermediate rules (see Case C‑125/06 P
Commission
v
Infront WM
[2008] ECR I‑1451, paragraph 47 and the case-law cited).
In that regard, under section 101 of the Broadcasting Act 1996 (see paragraph 11 above), no television broadcaster coming
within one of the categories described in paragraph 10 above may broadcast, live and on an exclusive basis, an event included
in the United Kingdom list. It is only if no broadcaster in the other category has shown any interest in acquiring the broadcast
rights for that event and if the other conditions referred to in paragraph 13 above are fulfilled that the Office of Communications
may give authorisation to a broadcaster having acquired the exclusive rights to broadcast the event in question live.
It follows from those rules that the sale of exclusive broadcasting rights for the World Cup, of which FIFA is the organiser
within the meaning of recital 21 in the preamble to Directive 97/36, to television broadcasters under the jurisdiction of
the United Kingdom in a manner which deprives other broadcasters coming under the jurisdiction of that same Member State which
have manifested an interest in acquiring those rights of the possibility of broadcasting all or part of that event in that
country does not produce the legal effects normally resulting from such an exclusivity clause.
Although, admittedly, those legal consequences arise from the United Kingdom legislation and not from the contested decision,
the fact remains that the mechanism of mutual recognition triggered by the latter, in accordance with Article 3a(3) of Directive
89/552, creates an obligation for the Member States to safeguard those consequences. The Member States must, in particular,
ensure that television broadcasters coming under their jurisdiction comply with the conditions which govern the broadcasting
on United Kingdom television of the events included in its list, as defined by the United Kingdom in its measures which have
been approved and published in the
Official Journal of the European Union
. The obligation to achieve that result has a direct adverse effect on the legal position of the television broadcasters under
the jurisdiction of Member States other than the United Kingdom wishing to purchase broadcasting rights for the United Kingdom
originally held by FIFA (see, to that effect,
Commission
v
Infront WM
, paragraph 32 above, paragraphs 62 and 63).
Therefore, the mechanism of mutual recognition triggered by the contested decision obliges the Member States to preclude the
exercise of rights such as those described in paragraph 34 above by television broadcasters under their jurisdiction, with
the result that the rights originally held by FIFA are also affected when they are offered publicly to broadcasters not under
the United Kingdom’s jurisdiction, but rather that of another Member State.
It follows that the contested decision directly affects FIFA’s legal position in respect of the rights originally held by
it and does not leave any discretion to the Member States as to the result to be obtained, which is imposed automatically
and results from the Community rules alone, irrespective of the content of the specific mechanisms which the national authorities
put in place to attain that result (see, to that effect,
Commission
v
Infront WM
, paragraph 32 above, paragraphs 60 and 61).
The contested decision is therefore of direct concern to FIFA.
Regarding the question whether FIFA is individually concerned by the contested decision, it should be remembered that persons
other than those to whom a decision is addressed may claim to be individually concerned only if that decision affects them
by reason of certain attributes which are peculiar to them or by reason of circumstances in which they are differentiated
from all other persons and by virtue of these factors distinguishes them individually just as in the case of the person addressed
by such a decision (see
Commission
v
Infront WM
, paragraph 32 above, paragraph 70 and the case-law cited).
In the present case, it is not disputed that, irrespective of the legal nature and source of the broadcasting rights for the
World Cup, it is an event for the purposes of recital 21 in the preamble to Directive 97/36 in that it is organised in advance
by an organiser legally empowered to sell those rights and that FIFA is the organiser in question. Since that situation also
held true at the time of adoption of the contested decision, FIFA was perfectly identifiable at that time.
The contested decision, moreover, mentions FIFA by name when it refers, in its Annex, to ‘[t]he FIFA World Cup Finals Tournament’.
The contested decision is therefore of individual concern to FIFA.
With respect to the Kingdom of Belgium’s argument that the Court has no jurisdiction to rule on the lawfulness of national
measures under Article 230 EC and that FIFA did not challenge the United Kingdom measures before the national courts, suffice
it to state that, by its action, FIFA is challenging, inter alia, the lawfulness of Article 1 of the contested decision, according
to which the measures in question are compatible with Community law.
It follows that the review which the Court is being asked to conduct in the present case relates to the lawfulness of that
finding, so that the failure to challenge the United Kingdom measures before the national courts does not affect, in one way
or other, the admissibility of the action, which, moreover, was lodged within the time-limit laid down in Article 230 EC (see,
to that effect, Case T‑33/01
Infront WM
v
Commission
, paragraph 15 above, paragraph 109).
The arguments alleging inadmissibility of the action put forward by the Kingdom of Belgium must, accordingly, be rejected.
2.
Substance
FIFA puts forward six pleas in law: first, failure to state reasons; secondly, infringement of Article 3a(1) of Directive
89/552; thirdly, infringement of FIFA’s right to property; fourthly, infringement of the Treaty provisions on the freedom
to provide services; fifthly, infringement of the Treaty provisions on competition; and, sixthly, infringement of the Treaty
provisions on freedom of establishment.
Before examining the pleas put forward by FIFA, it is appropriate to set out a number of general considerations which must
be taken into account in determining whether they are well founded.
First of all, it should be noted that Article 3a(1) of Directive 89/552 gave concrete expression to the possibility for the
Member States to restrict the exercise, in the audiovisual field, of fundamental freedoms established by primary Community
law, on the basis of overriding reasons in the public interest.
Even if measures adopted by Member States pursuant to Article 3a(1) of Directive 89/552 apply in a non-discriminatory manner
both to undertakings established in their national territory and to undertakings established in other Member States, it is
sufficient that those measures benefit certain undertakings established in that national territory in order to be considered
a restriction on freedom to provide services within the meaning of Article 49 EC (see, to that effect, Case C‑398/95
SETTG
[1997] ECR I‑3091, paragraph 16, and Case C‑250/06
United Pan-Europe Communications Belgium and Others
[2007] ECR I‑11135, paragraphs 37 and 38). Similarly, those measures may impede freedom of establishment when they are liable
to place companies from other Member States in a less favourable factual or legal situation than companies from the Member
State which adopted them (see, to that effect, Case C‑255/97
Pfeiffer
[1999] ECR I‑2835, paragraph 19).
Such restrictions on the fundamental freedoms guaranteed by the Treaty may yet be justified, provided they serve overriding
reasons in the public interest, are appropriate for attaining the objective which they pursue and do not go beyond what is
necessary in order to attain it (see, to that effect,
Pfeiffer
, paragraph 49 above, paragraph 19, and
United Pan-Europe Communications Belgium and Others
, paragraph 49 above, paragraph 39 and the case-law cited).
In that regard, it must be borne in mind that freedom of expression, as protected by Article 10 of the Convention for the
Protection of Human Rights and Fundamental Freedoms, signed at Rome on 4 November 1950 (‘the ECHR’), is one of the fundamental
rights guaranteed by the Community legal order and is an overriding reason in the public interest which is capable of justifying
such restrictions (see, to that effect,
United Pan-Europe Communications Belgium and Others
, paragraph 49 above, paragraph 41 and the case-law cited). Moreover, under Article 10(1) of the ECHR, freedom of expression
also includes the freedom to receive information.
In the present case, as noted in recital 19 of the contested decision, the measures adopted by the United Kingdom are obstacles
to freedom to provide services. However, as is apparent from recital 18 in the preamble to Directive 97/36, the measures contemplated
in Article 3a of Directive 89/552 are intended to protect the right to information and to ensure wide public access to television
broadcasts of national or non-national events of major importance for society. Recital 21 in the preamble to Directive 97/36
states that an event is of major importance when it is outstanding, is of interest to the general public in the European Union
or in a given Member State or in an important component part of a given Member State, and is organised in advance by an event
organiser who is entitled to sell the rights pertaining to that event.
It follows that, since they relate to events which are of major importance for society, the measures contemplated in Article
3a(1) of Directive 89/552 are justified by overriding reasons in the public interest, a point which FIFA does not dispute.
Next, as noted in paragraph 50 above, the measures in question must still be appropriate for attaining the objective which
they pursue and not go beyond what is necessary in order to attain it.
Lastly, regarding the scope of recital 18 in the preamble to Directive 97/36, it should be noted, first, that Article 3a of
Directive 89/552, to which that recital refers, does not effect a harmonisation of specific events which Member States may
consider to be of major importance for society. Contrary to the version of that article which appears in the decision of the
European Parliament on the common position adopted by the Council with a view to the adoption of Directive 97/36 (OJ 1996
C 362, p. 56) and which makes express reference to the summer and winter Olympic Games and to the football World Cup and European
Championship, the said provision does not refer to specific events which are liable to be included in national lists.
It follows that, as pointed out moreover by the Commission, recital 18 in the preamble to Directive 97/36 cannot be construed
as meaning that the inclusion of the World Cup in a national list of events of major importance for society is automatically
compatible with Community law.
A fortiori
, that recital cannot be understood as indicating that the World Cup may, in any event, be validly included in its entirety
in such a list, irrespective of the interest in World Cup matches in the Member State concerned.
On the other hand, in the light of the findings set out in paragraphs 48 to 53 above, that recital implies that, when a Member
State includes World Cup matches in the list it has decided to draw up, it does not need to include in its notification to
the Commission specific grounds concerning their nature as an event of major importance for society.
It is in the light of those considerations that the merits of the pleas put forward by FIFA fall to be examined.

The first plea: failure to state reasons
Arguments of the parties
In FIFA’s submission, the Commission gives no reasons in the contested decision to justify the inclusion of all 64 World Cup
matches on the United Kingdom list. While it is true that the World Cup is mentioned in recital 18 of the preamble to Directive
97/36 as an example of an event of major importance, that does not mean that all the matches in the World Cup may automatically
be considered to be of such importance or that they must be given unlimited public access. Furthermore, there is nothing leading
to the conclusion that that recital refers to the World Cup in its entirety. FIFA states in that regard that a division of
the World Cup matches into, on the one hand, ‘prime’ matches, including the semi-finals, the final and the matches involving
the relevant national team, in this case United Kingdom teams, and liable to be categorised as events of major importance
for United Kingdom society and, on the other, ‘non-prime’ matches, including all other matches, not necessarily liable to
be categorised as such, is warranted and corresponds to the approach adopted by other Member States which have notified their
measures pursuant to Article 3a(2) of Directive 89/552. The Commission itself recognised such a categorisation of matches
in its working document CC TVSF(97) on the application of Article 3a of Directive 89/552.
By considering that its review of the national choices of events of major importance is purely marginal and therefore virtually
redundant, the Commission disregarded its obligation to conduct a detailed review of the compatibility of the United Kingdom
measures with Community law, which led it to fail to provide an adequate statement of reasons for approving the inclusion
of all World Cup matches as being of major importance for United Kingdom society.
FIFA adds that the United Kingdom authorities did not take account of viewing figures relating to the 1998 World Cup for the
purpose of their decision of 25 June 1998 (see paragraph 7 above), as that tournament ended on 12 July 1998, although the
Commission did use that data for the purpose of adopting the decision of 28 July 2000. Nor did those authorities take those
viewing figures into account before re-notifying their list to the Commission on 5 May 2000 (see paragraph 14 above).
Since all World Cup matches were included in the list in the decision of 25 June 1998 (see paragraph 7 above), despite the
recommendations of the Advisory Group on listed events (see paragraph 9 above) and against the advice of officials of the
Ministry of Culture, Media and Sports and of the Director-General of the Office of Fair Trading, as well as the initial position
of the Ministry recommending the inclusion of only ‘prime’ matches, the Commission ought to have provided very strong grounds
to justify the inclusion of all matches on the United Kingdom list. Furthermore, the Commission ought to have obtained information
about viewing figures for the 1998, 2002 and 2006 World Cup tournaments, instead of reiterating, unaltered, the decision adopted
seven years previously, in July 2000. FIFA observes in that regard that the Commission itself states that it took account
of 1998 World Cup viewing figures when adopting its decision of 28 July 2000, even though they were not available when the
United Kingdom adopted its list on 25 June 1998, which confirms that the most recent figures should have been taken into account
for the purpose of adopting the contested decision. FIFA adds that, in
Infront WM
v
Commission
, paragraph 15 above, this Court did not take a position on any grounds of annulment other than that alleging infringement
of a procedural requirement, on the basis of which it annulled the decision of 28 July 2000.
FIFA states that correspondence was exchanged between the Commission and the United Kingdom authorities between August 2006
and February 2007. It states that administrative proceedings were initiated with a view to obtaining the documents concerned,
at both Community and national level, but that it has never succeeded in having access to the documents in question. FIFA
asserts that the Commission ought to have disclosed in the contested decision all facts relevant to its assessment of the
compatibility of the United Kingdom measures with Community law, in particular viewing figures relating to the World Cups
of 1998, 2002 and 2006, as well as the content of that correspondence, since it relied on the correspondence for the purposes
of adopting the contested decision.
Lastly, FIFA submits that the statement of reasons in the contested decision cannot be completed in the present proceedings,
with the result that any grounds relied on for the first time before this Court, such as those put forward by the Commission
in its statement in defence, cannot be taken into account for that purpose, whatever their probative value may be from a substantive
viewpoint.
It follows from the foregoing that, in respect of the finding that all World Cup matches, rather than just ‘prime’ matches,
are events of major importance for United Kingdom society, the Commission disregarded its obligation to provide a statement
of reasons, contrary to Article 253 EC.
The Commission, supported by the interveners, disputes the merits of this plea.
Findings of the Court
It is settled case-law that the statement of reasons required by Article 253 EC must be appropriate to the measure at issue
and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in
question in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the competent
Court to exercise its power of review. The requirements to be satisfied by the statement of reasons depend on the circumstances
of each case, in particular the content of the measure in question, the nature of the reasons given and the interest which
the addressees of the measure, or other parties to whom it is of direct or individual concern, may have in obtaining explanations.
It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the
statement of reasons meets the requirements of Article 253 EC must be assessed with regard not only to its wording but also
to its context and to all the legal rules governing the matter in question (Case C‑265/97 P
VBA
v
Florimex and Others
[2000] ECR I‑2061, paragraph 93).
FIFA complains that the Commission failed to provide a specific statement of reasons for finding that all of the World Cup
matches, rather than only the ‘prime’ matches, fell to be considered as being of major importance for United Kingdom society.
It should also be noted that, in its written response to the question asked by the Court by way of measures of organisation
of procedure (see paragraph 25 above), FIFA explicitly confirmed what was indirectly evident from a number of points in its
written pleadings, namely that it considers the inclusion of the ‘prime’ World Cup matches in a national list to be compatible
with Community law, provided that the requirements of a clear and transparent procedure are also satisfied.
Moreover, although, admittedly, no position is adopted in recital 18 in the preamble to Directive 97/36 on the crucial question
of whether all or some of the World Cup matches should be included in a national list of events of major importance for society,
there is no valid consideration leading to the conclusion that, in principle, only ‘prime’ matches may be thus categorised
and therefore included in such a list.
The World Cup is a competition which may reasonably be regarded as a single event rather than as a series of individual events
divided into ‘prime’ matches and ‘non-prime’ matches. It is well known that, in the World Cup, the participation of the teams
in ‘prime’ matches, such as matches involving the relevant national team, may depend on the results of ‘non-prime’ matches,
which determine the fate of those teams. Thus ‘non-prime’ matches determine the opponents of the relevant national team in
the subsequent stages of the competition. In addition, the results of ‘non-prime’ matches may even determine whether or not
that national team advances to the subsequent stage of the competition.
Given that specific context which enables the World Cup to be regarded as a single event, as observed in recital 18 of the
contested decision, the Commission did not have to provide more detailed reasons for its appraisal in respect of ‘non-prime’
matches, especially when the relevant statistics do not show that those matches regularly attract a negligible number of television
viewers (see paragraphs 122 to 129 below). Those circumstances allowed the Commission to provide reasons for its decision
by reference also to the special general resonance that the World Cup has in the United Kingdom, in that it is a particularly
popular event for the general public and not only for football fans, as observed in recital 6 of the contested decision.
It follows that the reasoning contained in recitals 6 and 18 of the contested decision (see paragraph 18 above) allows FIFA
to identify the reasons why the Commission took the view that all World Cup matches could legitimately be included in the
list of events of major importance for United Kingdom society and the Court to conduct its review of the merits of that appraisal,
with the result that the contested decision does fulfil the requirements of Article 253 EC in that regard.
That finding is not affected by the fact that, during the procedure which led to the adoption of the list of events of major
importance for United Kingdom society, certain bodies had proposed including only ‘prime’ matches on that list. Given that
the importance of the ‘non-prime’ matches justifies categorising the entire World Cup as an event of major importance for
society, the fact that certain officials or advisory bodies, in the course of their duties, suggested to the Secretary of
State that only ‘prime’ matches be included in the list does not give rise to an obligation for the Commission to explain
why the Secretary of State did not err in adopting a different but equally legitimate position.
The same holds true for the arguments concerning the fact that correspondence was exchanged between the Commission and the
United Kingdom authorities, a point not referred to in the contested decision. Since the statement of reasons in the contested
decision is sufficient, the Commission cannot be criticised for failing to include more information in it. Moreover, the question
whether other evidence shows that ‘non-prime’ matches are not, in fact, of major importance for United Kingdom society goes
to the lawfulness of the merits of the contested decision and will be examined under the consideration of the second plea
(see paragraphs 118 to 129 below).
Regarding the argument that the viewing figures for the 1998 World Cup were not available on 25 June 1998, the date when the
United Kingdom list was adopted (see paragraph 7 above) but that the Commission did base itself on those figures, it is clear
that there is nothing pre§venting a Member State from submitting to the Commission evidence relating to a period subsequent
to the date of adoption of the list of events of major importance for its society, or the Commission from taking account of
that evidence. Such evidence may, moreover, lead the Commission to ask the Member State in question to amend its measures
in order to make them compatible with Community law, on the basis of data which is as up to date as possible. That interpretation
is supported by the fact that Article 3a(2) of Directive 89/552 invites Member States to submit their measures to the Commission
even before their adoption.
Therefore, the Commission did not have to explain specifically in the contested decision why it chose to take account of evidence
which did not exist at the time the list of events of major importance for United Kingdom society was drawn up.
The first plea in law must accordingly be rejected.

The second plea: infringement of Article 3a(1) of Directive 89/552
This plea is divided into two parts: the first alleges that the United Kingdom measures were not adopted under a clear and
transparent procedure, whilst the second alleges that ‘non-prime’ matches are not of major importance for United Kingdom society.
The procedure followed by the United Kingdom authorities
–       Arguments of the parties
FIFA submits that the inclusion of all World Cup matches in the list of events of major importance for United Kingdom society
is incomprehensible and was characterised by a great lack of clarity. FIFA observes in that regard that the Secretary of State
did not follow the unanimous advice which he received from competent Ministry officials, the Advisory Group on listed events
and the Director-General of the Office of Fair Trading, or the initial Ministry position, and that the reasons for that choice
were never disclosed. The failure to disclose the reasons which led the Secretary of State to depart from those independent
recommendations is inconsistent with the requirements of clarity and transparency which are to govern the procedure in question.
Moreover, in a document dated 23 September 1999, the United Kingdom authorities falsely stated that the viewing figures relating
to the 1998 World Cup had been taken into account for the adoption of the decision of 25 June 1998 (see paragraph 61 above),
which the Commission could have easily realised was not the case.
Furthermore, the viewing figures for the 1994 World Cup also contained a significant mathematical error. In any event, neither
the viewing figures for the 1998 World Cup nor those relating to the 1994 World Cup justified the inclusion of all World Cup
matches on the United Kingdom list. The renotification of the list on 5 May 2000 (see paragraph 14 above) does not affect
the situation described above, since the 1998 figures were not reconsidered before the list was renotified.
Since, first, the reasons underlying the inclusion of all the matches in the list of events of major importance for United
Kingdom society were clearly not the same as those notified to the Commission by the United Kingdom authorities and since,
second, the reasons for inclusion were not disclosed, the only reasonable conclusion the Commission could reach was that the
national procedure did not satisfy the requirements of clarity and transparency laid down in Article 3a(1) of Directive 89/552.
In those circumstances, the Commission erred in finding that that procedure had been clear and transparent. This complaint
is not directed at the validity of the national procedure as such, but rather at the lawfulness of the Commission’s assessment
in that regard.
Lastly, FIFA states that its submissions are not affected by the establishment of a consultation procedure by the Secretary
of State concerning the criteria in the light of which the importance of various events for United Kingdom society was to
be assessed, as it is not challenging the relevance of those criteria.
The Commission, supported by the interveners, disputes the merits of FIFA’s assertions.
–       Findings of the Court
It should be borne in mind, as a preliminary point, that Article 3a(1) of Directive 89/552 does not set out specific matters
which must feature in the procedures put in place at national level for the purposes of drawing up the list of events of major
importance for society. That provision leaves the Member States a margin of discretion for organising the procedures in question
as regards their stages, possible consultation of parties concerned and allocation of administrative competence, whilst stating
that they must be clear and transparent as a whole.
Restrictions on the exercise of the fundamental freedoms guaranteed by the Treaty through national measures justified by overriding
reasons in the public interest must still be appropriate for attaining the objective which they pursue and not go beyond what
is necessary in order to attain that objective (see paragraph 50 above).
Thus, even where national legislation, such as that referred to in Article 3a(1) of Directive 89/552, has as its object the
safeguarding of the freedom of expression (see paragraphs 51 to 53 above), the requirements imposed under measures designed
to implement such a policy must in no case be disproportionate in relation to that aim and the manner in which they are applied
must not bring about discrimination against nationals of other Member States (see, to that effect, Case C‑379/87
Groener
[1989] ECR 3967, paragraph 19, and Case C‑112/00
Schmidberger
[2003] ECR I‑5659, paragraph 82).
It is in that context that the procedures put in place by the Member States for adopting the list of events of major importance
for society must be clear and transparent, in the sense that they must be based on objective criteria which are known in advance
by the parties concerned, so as to prevent the Member States’ discretion for deciding on the specific events to include in
their lists from being exercised in an arbitrary manner (see, to that effect,
United Pan-Europe Communications Belgium and Others
, paragraph 49 above, paragraph 46). Although it is true that, under Article 3a of Directive 89/552, in order for an event
to be included in the list it must be of major importance for society, the fact remains that the prior establishment of specific
criteria used to assess that importance is an essential factor in order for national decisions to be adopted in a transparent
manner and within the parameters of the discretion which the national authorities have in that regard (see paragraph 112 below).
The requirement of clarity and transparency of the procedure also implies that the relevant provisions indicate the body which
is responsible for drawing up the list of events and the conditions in which interested parties may submit their observations.
However, the mere presence of evidence aimed at invalidating the assessment of a national authority as to the importance of
a specific event for society does not go to the clarity or transparency of the procedure followed, but rather to the merits
of that assessment. The same is true when that evidence consists in opinions or observations set out by advisory bodies or
services coming under the competent authority.
In the present case, it should be observed, first, that FIFA is challenging the clarity and transparency of the procedure
established by the United Kingdom in so far as it included all World Cup matches in the list, as opposed to the ‘prime’ matches.
Next, it is clear that the complaints put forward by FIFA are not suitable for calling in question the Commission’s assessment
as to the clarity or transparency of the procedure followed by the Secretary of State for the purposes of adopting the list
of events of major importance for United Kingdom society (see paragraphs 7 to 9 above). Contrary to FIFA’s submissions, the
requirement of clarity and transparency laid down in Article 3a of Directive 89/552 does not have either as its object or
its effect to oblige the competent national authority to set out the reasons why it did not follow the opinions or observations
put forward to it during the consultation procedure.
That conclusion is all the more compelling in relation to the World Cup, which is referred to in recital 18 in the preamble
to Directive 97/36 and may reasonably be regarded as a single event rather than as a series of individual events divided up
into ‘prime’ matches and ‘non-prime’ matches (see paragraph 70 above).
In those circumstances, if an interested party takes the view that the opinions put forward during the consultation procedure
or even a position expressed by the services coming under the competent authority contain aspects which invalidate the final
assessment of that authority as to the importance of the event in question for society, it may, first, challenge the assessment
in question before the national courts and, second, challenge before the General Court the merits of any decision by the Commission
endorsing that assessment, as FIFA has, moreover, done with the second part of this plea.
Regarding the arguments put forward concerning the viewing figures taken into account by the United Kingdom authorities, they,
too, call into question the Commission’s assessment of the merits of the Secretary of State’s position on the importance of
‘non-prime’ matches for United Kingdom society. Thus, they do not concern, either, the question whether the procedure established
by the United Kingdom authorities was clear and transparent.
The argument alleging that the viewing figures for the 1998 World Cup were not available on 25 June 1998, the date of adoption
of the United Kingdom list (see paragraph 7 above), whilst the Commission based itself on those figures, must be rejected
for the reasons set out in paragraph 75 above.
FIFA’s arguments do not, therefore, establish that the Commission erred in finding that the procedure established by the United
Kingdom for including the World Cup in the list of events of major importance for United Kingdom society was clear and transparent.
The first part of the second plea must accordingly be rejected.
The importance of ‘non-prime’ matches for United Kingdom society
–       Arguments of the parties
FIFA submits, in support of this plea, first, that ‘non-prime’ matches have a special resonance only with football fans and,
second, that those matches have not traditionally been broadcast by free television channels, nor have they drawn large audiences.
It follows that ‘non-prime’ matches do not satisfy the two criteria applied by the Commission in recitals 6 and 18 of the
contested decision, with the result that the Commission erred in that regard.
In FIFA’s submission, it cannot legitimately be argued that all World Cup matches are events of major importance for United
Kingdom society, that is, outstanding events which are of interest to the general public as contemplated in recital 21 in
the preamble to Directive 97/36.
FIFA argues in that regard that while Member States are indeed free to choose the events which they consider to be of major
importance for society, the Commission is required to review in detail the lawfulness of that choice under Community law.
Thus, the Member States’ discretion does not allow for arbitrariness and is neither unbridled nor unfettered, and the Member
States’ views are neither overriding nor preponderant, nor,
a fortiori
, incontestable.
In the present case, the surveys carried out confirm that persons who do not ordinarily follow football have only a very limited
interest in ‘non-prime’ matches. FIFA adds that it is challenging not the legislator’s choice to draw up rules such as those
laid down in Article 3a of Directive 89/552 concerning events of major importance for society, but the scope attributed to
that concept by the Commission in the contested decision. FIFA states that ‘prime’ matches may legitimately be considered
to be of major importance for society within the meaning of that provision, which is moreover consistent with its own policy,
under which the semi-finals and the final, and also in matches played by the relevant national team and the opening match
of the World Cup must be broadcast live on a free channel.
It follows from a survey based on information from the Broadcast Audience Research Board that the average number of non-fans
who watched at least 30 consecutive minutes of all ‘non-prime matches’ in the 2006 World Cup represented a mere 2.8% of the
total viewing audience, as compared with 14.7% of non-fans who watched at least 30 consecutive minutes of all ‘prime matches’,
with the figure being 18.5% for the final, 7.1% for the semi-final and 17% for matches involving the England national team.
With respect to the information provided by the United Kingdom to the Commission, FIFA states that the data relating to the
1998 World Cup was not available on 25 June 1998, the date on which the list of events of major importance for United Kingdom
society was established (see paragraph 7 above), whereas the document of 23 September 1999 (see paragraph 79 above) referred
to an average number of 8.59 million viewers who watched matches in that competition. Apart from the fact that that figure
is an overestimate – the correct figure being 6.518 million viewers – it gives no indication as to the importance of ‘non-prime’
matches for the general public in the United Kingdom. In fact not only does that figure take account of ‘prime’ matches, it
also makes no distinction between fans and non-fans of football, the latter nevertheless choosing to watch a World Cup match
because they perceive it to be of major importance for society. Moreover, the results of the survey referred to in paragraph
102 above show that, apart from football fans, the general public does not have any particular interest in ‘non-prime’ matches,
with the result that those matches do not have any resonance with the general public. These conclusions are consistent with
the Commission’s decision-making practice. The Commission therefore erred in finding that ‘non-prime’ matches are of major
importance for non-fans of football.
The Commission also erred in finding that all World Cup matches have traditionally been broadcast live on free television,
as 16, 8 and 8 matches of the 1994, 1998 and 2002 World Cups respectively were not, even though, in some cases, they were
not being played at the same time as another match. Moreover, eight ‘non-prime’ matches in the 2006 World Cup were broadcast
by broadcasters in the second category under section 98 of the Broadcasting Act 1996 (see paragraph 10 above). In addition,
the approach taken for the 1994, 1998 and 2002 World Cups was not to broadcast a match if it took place at the same time as
another match.
The viewing figures for the 1994, 1998, 2002 and 2006 World Cups, which were available at the time of adoption of the contested
decision, show that ‘non-prime’ matches draw a fraction of the number of viewers who watch the ‘prime’ matches. Furthermore,
contrary to the Commission’s assertion, the viewing figures for ‘non-prime’ matches for the 1994 and 1998 World Cups cannot
in any way be regarded as being exceptionally high by reference to the population of the United Kingdom and the viewing figures
for ‘prime’ matches.
Nine World Cup matches in 1994 and 23 World Cup matches in 2002 which were broadcast live drew fewer than 3 million viewers,
whilst 12 World Cup matches in 1998 which were broadcast live drew fewer than 5 million viewers; five ‘non-prime’ World Cup
matches in 2006 drew between 65 000 and 96 000 viewers.
Accordingly, the two criteria applied by the Commission in finding that ‘non-prime’ World Cup matches are of major importance
for United Kingdom society, that is, that they have a special resonance there and have always been broadcast by free television
channels and have drawn large audiences, are in fact not met.
Nor, in FIFA’s submission, can it be argued that ‘non-prime’ matches are of major importance for United Kingdom society when
the United Kingdom legislation does not require television broadcasters to broadcast them, whilst such obligations do exist
in respect of other events. FIFA’s reply to the Commission’s argument that it is impossible to broadcast two World Cup matches
being played simultaneously on the same channel is that, if the matches in question were genuinely events of major importance
for society, a broadcaster could broadcast them simultaneously on two different channels owned by it (such as BBC 1 and BBC 2)
or grant a sub-licence to another broadcaster. As for the Commission’s argument that the figures relied on by FIFA do not
take account of the day or time at which a match was broadcast, FIFA claims that those factors do not significantly impact
on viewing figures and refers to many examples of World Cup matches between 1994 and 2006 in support of its argument.
FIFA adds that, since an event which is considered to be of major importance for one society may not necessarily be so for
another, the Commission’s argument that the reference to the World Cup in recital 18 in the preamble to Directive 97/36 refers
to all World Cup matches is indefensible. Furthermore, it is illogical to consider the World Cup to be an indivisible event,
when it is organised in a number of stages and when the United Kingdom list treats other events consisting of different matches,
including the Cricket World Cup, as divisible events. In addition, Member States other than the United Kingdom and the Kingdom
of Belgium have drawn up lists which include only certain ‘prime’ World Cup matches and which the Commission approved, which
proves that the World Cup need not necessarily be considered to be an indivisible event.
FIFA states that if, contrary to the arguments which it puts forward, Article 3a(1) of the directive is to be interpreted
as meaning that the entire World Cup must be considered an event of major importance for society, on account of the terms
of recital 18 of the preamble to Directive 97/36, then a plea pursuant to Article 241 EC must be deemed to have been raised
implicitly against that provision in its application or, in any event, in its reply. Under that plea, FIFA relies on all the
arguments showing, in its submission, that there is nothing to justify considering the World Cup as a whole as a single event
of major importance for society.
The Commission, supported by the interveners, disputes the merits of this part of the second plea and states that FIFA did
not validly raise a plea against Directive 97/36 pursuant to Article 241 EC.
–       Findings of the Court
It should be borne in mind, first, that, in providing that it is for the Member States to define which events are of major
importance for their society within the meaning specified in recital 21 in the preamble to Directive 97/36, Article 3a of
Directive 89/552 leaves the Member States considerable discretion in that regard.
Secondly, even though Article 3a of Directive 89/552 does not effect a harmonisation of specific events which a Member State
may consider to be of major importance for its society (see paragraphs 55 and 56 above), the reference to the World Cup in
recital 18 in the preamble to Directive 97/36 means that the Commission cannot consider the inclusion of World Cup matches
in a list of events to be contrary to Community law on the ground that the Member State concerned did not notify it of the
specific reasons justifying their being an event of major importance for society (see paragraph 57 above). However, any finding
by the Commission that the inclusion of the entire World Cup in a list of events of major importance for the society of a
Member State is compatible with Community law, on the ground that the World Cup is, by its nature, legitimately regarded as
a single event, may be called into question on the basis of specific factors showing that the ‘non-prime’ matches are not
of such importance for the society of that Member State.
As stated in paragraphs 55 and 56 above, neither recital 18 in the preamble to Directive 97/36 nor Article 3a of Directive
89/552 addresses the question of whether the World Cup in its entirety may legitimately be included in a list of events of
major importance for society irrespective of the interest in the matches, particularly ‘non-prime’ matches, in the Member
State concerned.
Consequently, any discussion of the lawfulness of Directive 97/36 in relation to categorisation of the World Cup in its entirety
as an event of major importance for society, rather than only the ‘prime’ matches of the tournament (see paragraph 110 above),
is purposeless, since recital 18 in the preamble thereto does not address that question. It is therefore unnecessary to rule
on the question whether FIFA could legitimately put forward a plea in that regard pursuant to Article 241 EC in its reply
or whether such a plea must be regarded as having been put forward implicitly in the application.
Third, as explained in paragraphs 69 and 70 above, the World Cup may reasonably be regarded as a single event rather than
as a series of individual events divided into ‘prime’ matches and ‘non-prime’ matches, with the result that the Secretary
of State’s approach is not arbitrary but falls within the limits of his discretion.
The importance of the ‘non-prime’ matches arises, moreover, also from the simple fact that they are part of the World Cup
tournament, just like other sports for which interest, usually low, is heightened when they take place in the Olympic Games.
It follows that, in not questioning the view that it is not appropriate to distinguish between ‘prime’ and ‘non-prime’ matches
for the purpose of determining the importance of the World Cup for United Kingdom society and that the World Cup should be
considered in its entirety and not as a series of individual events (recitals 6 and 18 of the contested decision, see paragraph
18 above), the Commission did not make any error.
The arguments put forward by FIFA in that regard within the framework of the present plea do not affect the findings in recitals
6 and 18 of the contested decision.
The fact that the only 2.8% of non-fans of football watched 30 consecutive minutes of all ‘non-prime’ World Cup matches in
2006 (see paragraph 102 above) is not conclusive, since not all ‘non-prime’ matches must necessarily be of major importance
for United Kingdom society in order for the World Cup to be legitimately included, in its entirety, on the United Kingdom
list of such events. On the contrary, it is sufficient that the characteristic described in paragraph 70 above concerns certain
of the ‘non-prime’ matches, the number of and participants in which cannot be specified at the time the list is drawn up or
the broadcasting rights acquired, in order to justify not distinguishing between ‘prime’ and ‘non-prime’ matches as regards
their importance for society. It follows that the criterion employed for the purposes of the surveys carried out in the context
of that study was overly restrictive and, accordingly, unsuited to both the structure of the World Cup and the specific features
that that tournament must have in order to be able to be categorised as a whole as an event of major importance for society.
This finding also invalidates FIFA’s argument to the effect that certain ‘non-prime’ World Cup matches in 1994, 1998 and 2002
were not broadcast live or were broadcast by broadcasters coming in the second category under section 98 of the Broadcasting
Act 1996 (see paragraph 10 above). Moreover, contrary to FIFA’s submissions, recital 18 of the contested decision (see paragraph
18 above) does not refer to matches which have always been broadcast live, but to matches which have always been broadcast
by free television channels, which corresponds to the fourth criterion in recital 5 of the decision.
Nor can the arguments based on viewing figures for ‘non-prime’ World Cup matches in 1994, 1998, 2002 and 2006 (see paragraph
105 above) succeed.
It should be emphasised in that regard that, contrary to FIFA’s submissions, the viewing figures for ‘non-prime’ matches as
compared to ‘prime’ matches do not show that ‘non-prime’ matches failed to attract large audiences. According to statistics
provided by FIFA, ‘non-prime’ matches drew an average of 60% of the viewers who watched ‘prime’ World Cup matches in 1994,
the percentages being 43%, 30% and 33% respectively for the World Cups of 1998, 2002 and 2006. Although, admittedly, those
figures are lower than those for ‘prime’ matches, the fact remains that the inclusion of ‘non-prime’ matches in the national
list of events of major importance for society does not require that they draw the same number of viewers as ‘prime’ matches.
In the present case, those figures cannot be taken as representative of the number of viewers that would normally have been
drawn, in the United Kingdom, by matches not taking place in the context of a major international football competition involving
national teams and which, in addition, do not involve a United Kingdom national team.
These assessments are confirmed by various points in a memorandum from the United Kingdom to the Commission dated 24 March
1999, the content of which is found in a document entitled ‘Draft reply to European Commission’s letter of 23 December 1998’,
annexed to the application. Annex E to that document contains an analysis of the viewing figures relating to the 1998 World
Cup. That analysis shows that the ‘non-prime’ match between the Netherlands and Yugoslavia, the outcome of which would determine
England’s opponent if it beat Argentina, drew roughly 10.55 million viewers, which was stated as 10.605 million in another
document entitled ‘Viewer data for 1994-2006 FIFA World Cup matches’, annexed to the application (‘analytical viewing data’).
At the same time, ‘non-prime’ matches between Brazil and Chile, on the one hand, and Nigeria and Denmark, on the other, drew
10.63 and 10.32 million viewers respectively. These figures are consistent with the analytical viewing data, even though neither
of those matches had any bearing on the progress of a United Kingdom national team. In addition, according to those two documents,
the Cameroon national team drew an average of approximately 9.18 million viewers for the two matches broadcast live in the
1998 World Cup, against Austria and Italy respectively, whilst the matches between the United States of America and Spain
and Iran and Bulgaria drew 7.94 and 7.91 million viewers respectively. Lastly, according to those two documents, the Jamaica
national team drew on average 7.89 million viewers for two matches against Croatia and Argentina respectively, the first drawing
10.234 million viewers.
The same memorandum from the United Kingdom authorities further states that the final of the 1998 Football Association (FA)
Cup drew 7.81 million viewers, which shows the importance that ‘non-prime’ matches take on in the World Cup, given the viewing
figures set out in the preceding paragraph.
It should be observed in that regard that, according to the analytical viewing data, of the ‘non-prime’ 1994 World Cup matches,
16 drew between 7.196 and 11.625 million viewers, whereas eight drew between 5.669 and 6.926 million viewers. The same document
states that, for the 1998 World Cup, of the ‘non-prime’ matches, 21 drew between 7.161 and 10.632 million viewers and 13 drew
between 5.254 and 6.761 million viewers. In the 2002 World Cup, the analytical viewing data indicate that 24 ‘non-prime’ matches
drew between 3.073 and 5.317 million viewers. In the 2006 World Cup, the analytical viewing data indicate that 11 ‘non-prime’
matches drew between 7.058 and 9.645 million viewers, whilst 15 matches in the same category drew between 5 and 6.692 million
viewers.
Viewed both in absolute terms and in relation to the viewing figures for the 1998 FA Cup final, those figures show that, in
the United Kingdom, ‘non-prime’ matches command exceptionally large audiences, which can only be explained by the fact that
those matches are included in the World Cup fixture list. Those viewing figures thus confirm the findings in paragraphs 69,
70 and 117 above and support the position set out in recital 18 of the contested decision to the effect that World Cup matches,
including ‘non-prime’ matches, have traditionally drawn large numbers of viewers.
That analysis is not called into question by the allegedly particularly low viewing figures relied on by FIFA in respect of
certain ‘non-prime’ matches (see paragraph 106 above). All nine 1994 World Cup matches which were broadcast live and drew
fewer than 3 million viewers began at 0.30 hrs GMT, as the competition was taking place in the United States. Similarly, the
time difference explains the viewing figures observed for certain matches of the 2002 World Cup, which took place in South
Korea and Japan. Thus, of the 23 ‘non-prime’ matches relied on by FIFA which drew fewer than 3 million viewers, 14 began between
6.15 hrs and 7.15 hrs GMT and nine of them between 8.25 hrs and 12.15 hrs. The fact that the time difference, combined with
the time at which the matches in question were played, is the reason behind that phenomenon observed for the 1994 and 2002
competitions is substantiated by the much higher viewing figures for ‘non-prime’ matches broadcast neither too early in the
morning nor during working hours, like those referred to in paragraph 126 above. Moreover, according to a press release annexed
to the rejoinder in Case T-385/07, to which the present case was joined for the purposes of the oral procedure (see paragraph
24 above), FIFA itself affirms the importance of the time difference, which determines the time of a match in each country,
as this is recognised as being a factor which affected the size of the audiences in Asia and in Europe during the World Cups
in 2002 and 2006.
As regards the 2002 World Cup, all 12 ‘non-prime’ matches relied on by FIFA were broadcast between 13.30 hrs and 16.30 hrs
GMT, that is, during working hours. For the five ‘non-prime’ matches of the 2006 World Cup, for which viewing figures were
indeed very low, it should be noted that the match between Paraguay and Trinidad & Tobago was played at the same time as the
match between England and Sweden, which drew 18.464 million viewers. The match between Costa Rica and Poland began at 14.28
hrs and was played at the same time as the match between Ecuador and Germany, which was watched by 2.725 million viewers.
The match between Iran and Angola began at 14.30 hrs and was played at the same time as the match between Portugal and Mexico,
which was watched by 2.301 million viewers. The match between the Ivory Coast and Serbia-Montenegro was played at the same
time as the match between the Netherlands and Argentina, which drew 8.740 million viewers, whilst the match between the Ukraine
and Tunisia began at 15.00 hrs and was played at the same time as the match between Saudi Arabia and Spain, which was watched
by 1.872 million viewers. Those facts are objective reasons which explain why the viewing figures for those ‘non-prime’ matches
diverge from the figures usually recorded (see paragraph 126 above).
Accordingly, the viewing figures relating to ‘non-prime’ matches confirm rather than invalidate the finding in paragraph 118
above.
Moreover, the finding in paragraph 127 above does not conflict with the one set out in recital 40 of Commission Decision 2000/400/EC
of 10 May 2000 relating to a proceeding pursuant to Article 81 [EC] (Case No IV/32.150 – Eurovision, OJ 2000 L 151, p. 18),
referred to by FIFA (see paragraph 103 above). That recital states that international events tend to be more attractive for
the audience in a given country than national ones, provided the national team or a national champion is involved, while international
events in which no national champion or team is participating can often be of little interest. The World Cup often involves
a United Kingdom national team and, even when it does not, the absence of a United Kingdom national team is usually established
after the list of events of major importance for United Kingdom society has been drawn up, and also after the television broadcasting
rights have been sold for the relevant year.
As regards the argument based on the absence of an obligation to broadcast ‘non-prime’ matches (see paragraph 108 above),
suffice it to state that the choice not to require a television broadcaster to broadcast an event does not in any way imply
that that event is not of major importance for society within the meaning of Article 3a of Directive 89/552, even where the
establishment of such obligations forms part of the national legislature’s general practice. Article 3a is intended, in compliance
with the principle of proportionality, to prevent a situation where the general public in a Member State is not able, due
to exclusive television broadcasting, to follow certain events on free television. Its purpose is thus not to force indirectly
States wishing to provide for such protection to require a free channel provider to broadcast those events. If, in order to
include legitimately an event in a list of events of major importance for society, the Member States had to require a free
television service to broadcast it, the provision in question would produce effects going beyond the scope of its objective.
The fact that the United Kingdom followed a different approach in respect of other events, such as the Cricket World Cup,
or that other Member States included mainly ‘prime’ World Cup matches in their lists, does not affect the findings set out
above, according to which the World Cup in its entirety may legitimately be regarded as an event of major importance for United
Kingdom society. Since Article 3a of Directive 89/552 does not effect a harmonisation of specific events which Member States
may consider to be of major importance for society (see paragraph 55 above), a number of different approaches concerning the
inclusion of the World Cup matches in a national list may be equally compatible with the provision in question.
Given that FIFA’s arguments to the effect that the Commission erred in upholding the United Kingdom authorities’ assessment
that the World Cup in its entirety constitutes an event of major importance for United Kingdom society must be rejected, so
too must the second part of this plea as well the present plea in its entirety.

The third plea: infringement of FIFA’s right to property
Arguments of the parties
FIFA observes that the right to property is guaranteed by the Community legal order as a general principle of Community law.
Restrictions may be placed on the exercise of that right, in order to meet objectives of general interest, on condition that
the interference is not disproportionate and does not impair the very substance of the right. The exclusive exploitation of
intellectual property rights by the use or grant of licences constitutes the essence of such rights.
The contested decision approving the inclusion of ‘non-prime’ World Cup matches in the United Kingdom list of events of major
importance for society, when those matches should not be so categorised, has the effect not only of approving the restriction
on FIFA’s right to exploit its property right but also of effectively annihilating it, irrespective of its effect on broadcasters.
The prohibition on granting an exclusive licence to broadcast live any World Cup match in the United Kingdom arbitrarily deprives
FIFA of the essence of its property right.
No objective of general interest justifies such a drastic and disproportionate interference with its property right, since
the inclusion of only ‘prime’ matches in the list of events of major importance for society is appropriate and largely sufficient
to guarantee public access to those events. FIFA observes that the grant and acquisition of exclusive rights to broadcast
sporting events are of crucial importance and are a normal commercial practice accepted as such by the Commission itself.
Exclusivity significantly enhances the value of the rights and the prohibition on the exclusive grant of such rights therefore
affects their very essence.
The Commission therefore made a manifest error of assessment in considering, in the contested decision, that the United Kingdom
measures appear to be proportionate by reference to the objective of ensuring wide access to television broadcasts of events
of major importance for society.
The Commission, supported by the interveners, disputes the merits of this plea.
Findings of the Court
It should be borne in mind that, as is common ground between the parties, FIFA is the organiser of the World Cup within the
meaning of recital 21 in the preamble to Directive 97/36, so that any person wishing to exploit television broadcasting rights
for that event must obtain those rights from FIFA or from a party who has obtained them from FIFA.
Thus, since the value of those rights is liable to be affected by the legal effects arising from the contested decision (see
paragraphs 33 to 37 above), FIFA’s property right is also affected.
It follows, moreover, from the case-law that, where a Member State relies on provisions such as Articles 46 EC and 55 EC in
order to justify rules which are liable to obstruct the exercise of the freedom to provide services or the freedom of establishment,
such justification, provided for by Community law, must be interpreted in the light of the general principles of law and in
particular of fundamental rights. Thus the national rules in question can fall under the exceptions provided for by those
provisions only if they are compatible with the fundamental rights the observance of which is ensured by the Community judicature
(see, to that effect, Case C‑260/89
ERT
[1999] ECR I‑2925, paragraph 43). Similarly, it cannot be accepted that a national measure which is not compatible with fundamental
rights, such as the right to property (see, to that effect, Joined Cases C‑20/00 and C‑64/00
Booker Aquaculture and Hydro Seafood
[2003] ECR I‑7411, paragraph 67), may fall under the exceptions recognised on the basis that the measure reflects an overriding
reason in the public interest, such as television access for the general public to events of major importance for society.
However, the principle of protection of the fundamental right to property under Community law is not absolute but must be
viewed in relation to its social function. Consequently, the exercise of the right to property may be restricted, provided
that those restrictions in fact correspond to objectives in the public interest and do not constitute in relation to the aim
pursued a disproportionate and intolerable interference, impairing the very substance of the right guaranteed (see, to that
effect, Case C‑347/03
Regione autonoma Friuli-Venezia Giulia and ERSA
[2005] ECR I‑3785, paragraph 119, and Joined Cases C‑154/04 and C‑155/04
Alliance for Natural Health and Others
[2005] ECR I‑6451, paragraph 126).
It must be borne in mind in that regard that, for the reasons set out in paragraphs 116 to 134 above and contrary to FIFA’s
submissions, the World Cup may legitimately be regarded as a single event of major importance for United Kingdom society,
the viewing figures relating to ‘non-prime’ matches confirming, rather than invalidating, the assessment in recitals 6 and
18 of the contested decision. In this context, the fact that the World Cup is, by nature, a single event means that the Commission
did not err in finding that the inclusion of all World Cup matches in the United Kingdom list is a proportionate measure.
Accordingly, the complaint that the inclusion of ‘non-prime’ matches in the list of events of major importance for United
Kingdom society is a disproportionate and intolerable interference with FIFA’s property right on the ground that those matches
are not such events is based on an incorrect assumption.
Furthermore, although the legislation in question is liable to affect the price which FIFA will obtain for grant of the rights
to broadcast the World Cup in the United Kingdom, it does not destroy the commercial value of those rights because, first,
it does not oblige FIFA to sell them on whatever conditions it can obtain and, secondly, FIFA is protected against collusive
and abusive practices by Community and national competition law. Accordingly, the Commission did not err in concluding that
the United Kingdom measures were proportionate.
The third plea in law must accordingly be rejected.

The fourth and sixth pleas: infringement of the Treaty provisions on freedom to provide services and the freedom of establishment
Arguments of the parties
Under the first of these pleas in law, which it is appropriate to consider together, FIFA submits that the contested decision
places a restriction on freedom to provide services since, first, it has the effect of preventing FIFA from granting exclusive
broadcasting rights for any World Cup match to broadcasters in the second of the categories established by the United Kingdom
legislation (see paragraph 10 above) and, secondly, broadcasters in that category established in other Member States cannot
broadcast a World Cup match on an exclusive basis in the United Kingdom. The elimination of the possibility of acquiring such
rights to broadcast in the United Kingdom on an exclusive basis removes all incentive for broadcasters from other Member States
in obtaining those rights, thereby preventing them from broadcasting any World Cup match in the United Kingdom. The exclusivity
is essential for broadcasters wishing to innovate or develop their services, especially in Member States other than the Member
State where they are established.
In that regard, even if restrictions on freedom to provide services may be justified by overriding reasons in the public interest,
the national measures adopted to that end must be necessary, appropriate and proportionate. The Commission, which has the
burden of proving in the present case that those conditions are satisfied, must undertake a detailed assessment and show that
it has received evidence to that effect.
Yet those restrictions, which are moreover recognised in recital 19 of the contested decision, are vastly disproportionate
and inappropriate and should have been eliminated or attenuated through the inclusion in the list of events of major importance
for United Kingdom society of only those World Cup matches which are of such importance, that is, the ‘prime’ matches. This
position is in line with FIFA’s own policy, which requires that the opening match, the semi-finals, the final and matches
involving the relevant national team be broadcast on free channels, with the possibility of other matches being broadcast
on pay channels. FIFA adds that the proportionate or disproportionate nature of the decision to include each event on the
United Kingdom list must be assessed separately, as in reality it constitutes a bundle of decisions, each relating to a specific
event.
FIFA adds, in response to the arguments which the United Kingdom bases on the Office of Communications’ power to authorise
an exclusive live broadcast, that non-qualifying broadcasters will have no interest in acquiring broadcasting rights if exclusivity
is not guaranteed
Under the plea alleging infringement of freedom of establishment, FIFA submits that, since Article 66 EC in one of the legal
bases for Directive 97/36 and the national measures adopted pursuant to Article 3a of Directive 89/552 must comply with all
provisions of Community law, the national measures must inter alia be compatible with the articles of the EC Treaty on freedom
of establishment. In FIFA’s submission, the United Kingdom list approved by the contested decision prevents broadcasters wishing
to establish themselves in the United Kingdom and wishing to offer pay television services from obtaining exclusive rights
to broadcast World Cup matches.
Whilst it is true that where national measures restricting freedom of establishment apply to all persons or undertakings pursuing
an activity in the territory of the host Member State, they may be justified where warranted by overriding reasons in the
public interest, yet they must still be appropriate for attaining the objective which they pursue and not go beyond what is
necessary in order to attain it.
Since exclusive broadcast rights for sporting events is an important means of exercising freedom of establishment for new
entrants in the United Kingdom market, the impossibility for a new potential entrant to broadcast a World Cup match on an
exclusive basis constitutes a restriction on freedom of establishment. Consequently, the Commission erred in the contested
decision by not recognising that this was the case.
The Commission, supported by the interveners, disputes the merits of the arguments put forward by FIFA under the present pleas
in law.
Findings of the Court
It is not disputed, and is, moreover, acknowledged in recital 19 of the contested decision, that the mechanism of mutual recognition
triggered by the contested decision pursuant to Article 3a of Directive 89/552 has the effect of restricting freedom to provide
services in the common market, as established by Article 49 EC.
Moreover, as stated by FIFA, the United Kingdom measures are liable to place broadcasters established in other Member States
in a less favourable factual or legal position than broadcasters established in the United Kingdom. In that regard, notwithstanding
the fact that the legislation described in paragraphs 10 to 13 above applies without distinction to broadcasters in both categories
established by the United Kingdom legislation, it is, in reality, much less likely that no broadcaster in the first category,
most probably established in the United Kingdom, will be interested in broadcasting the World Cup, thereby giving a competitor
wishing to establish itself in the United Kingdom the opportunity of obtaining authorisation from the Office of Communications
to broadcast that event on an exclusive basis, than the reverse situation. It follows that the United Kingdom measures are
in fact impediments to freedom of establishment as laid down in Article 43 EC.
Nevertheless, those restrictions on freedom to provide services and on freedom of establishment may be justified, since they
are intended to protect the right to information and to ensure wide public access to television broadcasts of events, national
or non-national, of major importance for society, subject to the additional conditions that they be appropriate for attaining
the objective which they pursue and do not go beyond what is necessary in order to attain it (see paragraphs 48 to 54 above).
In that regard, it must be borne in mind that FIFA disputes the lawfulness of the contested decision in the light of the Treaty
provisions on freedom to provide services and freedom of establishment in so far as the Commission approves the inclusion
of ‘non-prime’ matches in the list of events of major importance for United Kingdom society. In FIFA’s submission, those matches
do not qualify as such, with the result that the restriction on freedom to provide services and on freedom of establishment
is disproportionate.
It should be noted that that argument put forward by FIFA reveals confusion between, on the one hand, the major importance
of an event for society, which is the first condition to be met and which is the overriding reason in the public interest
justifying the restriction of a fundamental freedom guaranteed by the Treaty (see paragraphs 48 to 53 above), and, on the
other, the proportionality of the restriction in question, which is a second condition which must be met by the national legislation
restricting such a freedom in order to be compatible with Community law (see paragraph 54 above).
In that context, it should be observed that, as evidenced by the analysis in paragraphs 116 to 134 above, and contrary to
FIFA’s submissions under its fourth plea in law, the World Cup may legitimately be regarded as a single event of major importance
for United Kingdom society, the viewing figures relating to ‘non-prime’ matches confirming rather than invalidating the assessment
in recitals 6 and 18 of the contested decision. It is therefore clear that the argument alleging that the matches in question
are not of major importance for society, with the result that the United Kingdom measures are disproportionate, is, in any
event, based on an incorrect assumption. Consequently, this argument does not invalidate the Commission’s conclusion that
the inclusion of all World Cup matches in the list of events of major importance for United Kingdom society was appropriate
and proportionate, given that the World Cup is, by nature, a single event.
The same considerations apply in respect of freedom of establishment. Even though, in its line of argument under its sixth
plea in law, FIFA did not state specifically whether it is challenging the validity of the Commission’s position in the contested
decision as to the compatibility of the United Kingdom list with Community law, only in so far as the Commission approves
the inclusion of ‘non-prime’ matches in that list, its application as a whole, along with its response to the written question
from the Court (see paragraph 68 above), indicates that this is indeed so.
It follows from the considerations set out in paragraph 161 above that the arguments alleging infringement of the Treaty provisions
on freedom of establishment cannot succeed.
The fourth and sixth pleas in law must accordingly be rejected.

The fifth plea: infringement of the Treaty on competition
Arguments of the parties
FIFA submits that the contested decision does not contain any analysis relating to distortion of competition caused by the
inclusion of all World Cup matches in the list of events of major importance for United Kingdom society. That distortion consists
in a reduction in the number of broadcasters competing to obtain rights to broadcast the World Cup in the United Kingdom,
which affect’s FIFA’s earnings as organiser of that event. Nor does the contested decision identify the products or markets
which were the subject-matter of its analysis which led to recitals 20 and 21 of the contested decision (see paragraph 18
above). A definition of the relevant markets was essential, however, for the purposes of analysing the competition situation,
especially since the United Kingdom list concerns four different football competitions.
FIFA maintains that the definition of broadcasters in the first category established by the United Kingdom legislation was
deliberately designed to enable only traditional United Kingdom broadcasters to satisfy the conditions laid down and thus
to acquire the exclusive right to broadcast World Cup matches live. In practice, those rights have always been acquired jointly,
since 1966, by two broadcasters, the BBC and ITV, with the result that, first, in reality there is no competition for the
acquisition of the rights to broadcast World Cup matches in the United Kingdom and, second, BBC and ITV are in a collective
dominant position. The Commission therefore erred in asserting, in recital 20 of the contested decision, that the United Kingdom
measures allowed actual and potential competition for the acquisition of those rights. Those measures also give rise to a
distortion of the advertising market, as well as the market for broadcasting sporting events on pay television.
The United Kingdom list thus grants special rights to the BBC and ITV; the fact that the criteria for granting those rights
are objective is irrelevant in that regard. By always jointly acquiring the rights to the World Cup, those broadcasters act
as a collective entity. Thus, in FIFA’s submission, they are in a collective dominant position and the grant of the rights
in question is liable to entail an abuse of a dominant position. FIFA observes that, for a Member State to infringe the combined
provisions of Article 86(1) EC and Article 82 EC, there is no need to establish that there has actually been such an abuse
of a dominant position. The fact that an abuse could result is sufficient. Moreover, the United Kingdom measures created a
market structure which authorises and favours abusive conduct.
In addition, the BBC and ITV did not fully exploit the rights which they acquired, since during the last four World Cup tournaments
they broadcast live only 40 of the 244 matches played. In doing so, they limited production, contrary to Article 82 EC. The
acquisition of the rights in issue by those two broadcasters also limited the development of markets such as the market in
pay television channels and the market in television advertising for the World Cup, since there are considerable obstacles
to acquiring broadcasting rights for sporting events of similar importance, all of which are held by pay channels for considerable
periods.
FIFA adds that the grant of the special rights in question to the BBC and ITV, together with their agreement to acquire jointly
the rights to broadcast the World Cup, is a measure which is contrary to Article 81(1) EC, thus infringing Article 86(1) EC.
The Commission, supported by the interveners, disputes the merits of FIFA’s assertions.
Findings of the Court
FIFA’s line of argument under this plea can be divided into two complaints.
The first complaint concerns the consequences resulting from the fact that, in light of the importance of the exclusivity
of broadcasting rights for the World Cup matches for those broadcasters coming within the second category established by the
United Kingdom legislation, the latter will not be interested in acquiring non-exclusive rights. In FIFA’s submission, that
leads to restrictions on competition on a number of markets, including the market for acquisition of such rights, the advertising
market and the market for broadcasting sporting events by pay television channels, due to the reduction in the number of broadcasters
active on those markets. FIFA also complains that the Commission failed to define those markets and failed to explain its
assessment of those restrictions.
It should be observed, in that regard, that the consequences in question result indirectly from the restrictions on freedom
to provide services introduced by the United Kingdom measures. Yet, as was held in respect of the second and third pleas,
restrictions on freedom to provide services resulting from the inclusion of all World Cup matches in the list of events of
major importance for United Kingdom society are justified by overriding reasons in the public interest and are neither inappropriate
nor disproportionate. The effects on the number of potential competitors, which are presented as being an unavoidable consequence
of those obstacles to the freedom to provide services, cannot, therefore, be considered to be contrary to the Treaty articles
on competition. In those circumstances, the Commission did not have to conduct a more in-depth analysis of those consequences
than that which it did.
The second complaint concerns the special rights allegedly granted to BBC and ITV which had the effect of authorising or making
possible the abuse of the dominant position of those broadcasters on the relevant market, which is, in FIFA’s submission,
the market for broadcast rights for World Cup matches.
Under Article 86(1) EC, the competition rule applicable to State measures (Case C‑22/98
Becu and Others
[1999] ECR I‑5665, paragraph 31), Member States must not, by laws, regulations or administrative measures, put public undertakings
and undertakings to which they grant special or exclusive rights in a position which the said undertakings could not themselves
attain by their own conduct without infringing Articles 12 EC and 81 EC to 89 EC (see, to that effect, Case C‑18/88
GB-Inno-BM
[1991] ECR I‑5941, paragraph 20).
In that regard, although it is true that special or exclusive rights within the meaning of that provision are granted when
protection is conferred by the State on a limited number of undertakings which may substantially affect the ability of other
undertakings to exercise the economic activity in question in the same geographical area under substantially equivalent conditions
(Case C‑475/99
Ambulanz Glöckner
[2001] ECR I‑8089, paragraph 24), the fact remains that the United Kingdom legislation does not confer such protection on
the broadcasters in question.
Thus, such rights are at issue when the public authorities have granted a monopoly (Case C‑163/96
Raso and Others
[1998] ECR I‑533, paragraph 23), when they can prevent the entry of a competitor into the market sphere of the rights-holder
on grounds relating to potential adverse effects on the operation and profitability of the rights-holder’s activities (
Ambulanz Glöckner
, paragraph 176 above, paragraphs 7, 23 and 25) or labour market requirements (
Becu and Others
, paragraph 175 above, paragraph 23), or where the rights-holder is entitled, under the relevant legislation, to influence
the terms under which the activity in question may be pursued by his competitors according to his interests or according to
the consequences of their activity on that market or even on a neighbouring market (see, to that effect, Case C‑202/88
France
v
Commission
[1991] ECR I‑1223, paragraph 51;
ERT
, paragraph 142 above, paragraph 37;
GB-Inno-BM
, paragraph 175 above, paragraph 25; and Case C‑49/07
MOTOE
[2008] ECR I‑4863, paragraph 43).
However, far from prohibiting itself or empowering the BBC or ITV to prohibit any broadcaster from acquiring the broadcast
rights for the World Cup matches or to influence the terms under which they may be broadcast, the United Kingdom legislation
merely provides that they cannot be broadcast on an exclusive basis in the United Kingdom, without distinguishing between
the two categories of broadcasters (see paragraphs 10 and 11 above). It should be clarified that FIFA alleges, incorrectly,
that the BBC and ITV are the only broadcasters which may acquire exclusive broadcast rights for the World Cup for the United
Kingdom. First, as just stated, the prohibition on exclusive broadcasting introduced by section 101 of the Broadcasting Act
1996 applies equally to all broadcasters in both categories established by the United Kingdom legislation. Next, that prohibition
works together with section 99 of the Broadcasting Act 1996, which declares void any contract for the broadcast of an event
included in the list in so far as it purports to grant an exclusive right to any one broadcaster, whoever that may be.
The United Kingdom legislation thus prohibits exclusivity for any broadcaster, not only at the broadcast stage, but also at
the stage of concluding broadcasting contracts, with the result that no broadcaster coming under United Kingdom jurisdiction
may validly conclude a contract for the exclusive broadcast of an event included in its list. That legislation does, however,
allow broadcasters in both categories established by it the same opportunity to submit offers for the acquisition of non-exclusive
broadcast rights for World Cup matches.
In those circumstances, the result that, with the authorisation of the Office of Communications, only certain broadcasters
in the first category, such as the BBC and ITV, will ultimately broadcast the World Cup in the United Kingdom, since their
competitors are interested only in exclusive broadcasting and will therefore not submit offers to acquire the relevant rights
(see paragraph 13 above) is not tantamount to a grant of special or exclusive rights to them within the meaning of Article
86(1) EC. Even assuming that the measures at hand would entail such a result, this would be because of the importance of exclusivity
as part of the business model implemented by those broadcasters operating pay television channels and would not in any way
stem from the United Kingdom legislation, since the terms of that legislation are applicable without distinction to broadcasters
in both categories. It follows that the United Kingdom measures as such do not affect the ability of operators of pay television
channels to pursue their activities on largely equivalent terms as those enjoyed by the BBC or ITV with regard to the acquisition
of broadcast rights for the World Cup.
The fifth plea must accordingly be rejected.

Consideration of FIFA’s request for measures of organisation of procedure
The assessments of the various pleas put forward by FIFA lead to the result that it is not necessary to adopt the measures
of organisation of procedure requested by it (see paragraphs 20 and 21 above).
In that regard, it should be noted that, in FIFA’s submission, its request is intended to enable it and the Court to assess,
first, whether the Commission had sufficient evidence to find that all World Cup matches have traditionally been considered
to be of major importance for United Kingdom society and have a special resonance with the general public; secondly, whether
the Commission was justified in approving the inclusion of all those matches in the United Kingdom list; and, thirdly, whether
the Commission demonstrated sufficiently that the restrictions placed on fundamental freedoms, the right to property and competition
are justified. That evidence would, moreover, enable FIFA to ascertain whether the Commission provided a sufficient statement
of reasons in the contested decision in failing to explain why it did not take account of the information submitted by the
United Kingdom authorities after 28 July 2000. That evidence is also relevant for determining whether the procedure put in
place by the United Kingdom authorities was clear and transparent, particularly with regard to the information provided to
the Commission which did not exist at the time the United Kingdom list was drawn up and opinions to the contrary were issued
by competent national services.
In those circumstances, FIFA requested the Court to invite the Commission to produce all correspondence between it and the
United Kingdom authorities concerning the list of events of major importance for United Kingdom society, including the letters
exchanged after 15 December 2005, the date on which judgment was delivered in
Infront WM
v
Commission
, paragraph 15 above.
In that regard, it should be observed that, as was held in the course of the examination of the pleas put forward by FIFA,
none of the arguments in support of which FIFA wishes to rely on evidence which may be found in documents the production of
which it requests, are such as to affect the lawfulness of the contested decision.
In particular, regarding the importance of the ‘non-prime’ matches for United Kingdom society and, by way of corollary, the
categorisation of the World Cup in its entirety as an event of major importance for United Kingdom society, FIFA produced
a series of statistical elements which by nature were among the most relevant and, in its submission, demonstrated that its
assertions in that respect were correct; the Court, however, found that they did not refute the Commission’s findings. The
same is true of the arguments concerning the alleged failure to take account of evidence subsequent to the year 2000, since
FIFA did in fact produce relevant statistical information, which the Court found did not affect the merits of the Commission’s
findings. Regarding the Commission’s taking account of information which was not available at the time when the United Kingdom
drew up the list of events of major importance for United Kingdom society, it should be borne in mind that that approach does
not give rise to any procedural or substantive irregularity (see paragraphs 75, 76 and 95 above), with the result that it
is not necessary to order any measures of organisation of procedure in that respect.
In those circumstances, the request for measures of organisation of procedure must be rejected and the action as a whole must
be dismissed.

Costs
Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been
applied for in the successful party’s pleadings. Since FIFA has been unsuccessful, it must be ordered to pay the costs in
accordance with the form of order sought by the Commission.
The Kingdom of Belgium and the United Kingdom are to bear their own costs, pursuant to Article 87(4) of the Rules of Procedure.
On those grounds,
THE GENERAL COURT (Seventh Chamber)
hereby:
1.
Dismisses the action;
2.
Orders the Fédération Internationale de Football Association (FIFA) to bear its own costs and to pay those incurred by the
European Commission;
3.
Orders the Kingdom of Belgium, the Federal Republic of Germany and the United Kingdom of Great Britain and Northern Ireland
to bear their own costs.
Forwood
Truchot
Schwarcz
Delivered in open court in Luxembourg on 17 February 2011.
[Signatures]
Table of contents
Legal context
Background to the case and contested decision
Procedure and forms of order sought
Law
1. Admissibility
Arguments of the parties
Findings of the Court
2. Substance
The first plea: failure to state reasons
Arguments of the parties
Findings of the Court
The second plea: infringement of Article 3a(1) of Directive 89/552
The procedure followed by the United Kingdom authorities
– Arguments of the parties
– Findings of the Court
The importance of ‘non-prime’ matches for United Kingdom society
– Arguments of the parties
– Findings of the Court
The third plea: infringement of FIFA’s right to property
Arguments of the parties
Findings of the Court
The fourth and sixth pleas: infringement of the Treaty provisions on freedom to provide services and the freedom of establishment
Arguments of the parties
Findings of the Court
The fifth plea: infringement of the Treaty on competition
Arguments of the parties
Findings of the Court
Consideration of FIFA’s request for measures of organisation of procedure
Costs
*
Language of the case: English.