62007TJ0385_EN
Parties
Grounds
Operative part
Parties
In Case T‑385/07,
Fédération Internationale de Football Association (FIFA),
established in Zurich (Switzerland), represented initially by R. Denton, E. Batchelor and F. Young, Solicitors, and A. Barav, lawyer, and subsequently by E. Batchelor, A. Barav, D. Reymond, lawyer, and F. Carlin, Barrister,
applicant,
v
European Commission,
represented by E. Montaguti and N. Yerrell, acting as Agents, assisted by J. Flynn QC and L. Maya, Barrister,
defendant,
supported by
Kingdom of Belgium,
represented by L. Van den Broeck and C. Pochet, acting as Agents, assisted by J. Stuyck, A. Berenboom and A. Joachimowicz, lawyers,
by
Federal Republic of Germany,
represented by M. Lumma and J. Möller, acting as Agents,
and by
United Kingdom of Great Britain and Northern Ireland,
represented by S. Behzadi-Spencer, E. Jenkinson and L. Seeboruth, acting as Agents, assisted initially by T. de la Mare, and subsequently by B. Kennelly, Barristers,
interveners,
APPLICATION for partial annulment of Commission Decision 2007/479/EC of 25 June 2007 on the compatibility with Community law of measures taken by Belgium pursuant to Article 3a(1) 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 2007 L 180, p. 24),
THE GENERAL COURT (Seventh Chamber),
composed of N.J. Forwood (Rapporteur), President, L. Truchot and J. Schwarcz, Judges,
Registrar: K. Pocheć, Administrator,
having regard to the written procedure and further to the hearing on 24 February 2010,
gives the following
Judgment
Grounds
Legal context
1. 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.’
2. 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.’
3. 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.’
4. 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
5. 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. The applicant’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.
6. In Belgium, the Flemish Community and the French Community are competent to adopt measures for the purposes of Article 3a of Directive 89/552. Thus, the authorities of each community adopted separate measures, which were then notified to the Commission of the European Communities by the Belgian federal authorities.
7. Under Article 76(1) of the Decrees relating to radio broadcasting and television (décrets relatifs à la radiodiffusion et à la télévision), consolidated on 25 January 1995, which were adopted by the Flemish Council ( Moniteur belge of 30 May 1995, p. 15092), ‘the Flemish Government shall draw up a list of events considered to be of major importance for the public and which, for this reason, may not be broadcast on an exclusive basis so that a substantial proportion of the public of the Flemish Community cannot watch them live or deferred on free television’.
8. By Order of 28 May 2004 ( Moniteur belge
of 19 August 2004, p. 62207), the Flemish Government designated the events to be regarded as of major importance for society, including the World Cup. In order for an event to be eligible for inclusion in the list of events of major importance for society, it must, under the terms of that order, fulfil at least two of the following criteria:
– have great topical value and attract considerable public interest;
– take place in the context of an important international competition or be a competition in which the national team, a Belgian club team or one or more Belgian athlete(s) is/are taking part;
– belong to an important sporting discipline and represent an important cultural asset to the Flemish Community;
– be broadcast traditionally by free television and have a high viewer rating for its category.
9. Under Article 1 of the Order of 28 May 2004, certain events included in the list, including the World Cup, must be broadcast via whole live coverage. Under Article 2 of the order, the exclusive rights over the events included in the list may not be exercised in such a way as to prevent a substantial proportion of the population from following those events on free television. Moreover, under the second paragraph of Article 2, a substantial proportion of the population of the Flemish Community is considered to be able to follow an event of major importance for society on free television when the event is broadcast by a television station transmitting in the Dutch language and can be received by at least 90% of the population without any payment in excess of the television distribution subscription price.
10. Under Article 3 of the Order of 28 May 2004, television broadcasters which do not satisfy the requirements of Article 2 thereof and which acquire exclusive broadcasting rights in the Dutch-speaking region and the bilingual Brussels‑Capital region for the events included in the list may not exercise those rights unless they can guarantee, on the basis of contracts concluded, that a substantial proportion of the population will not be prevented from following those events on free television. To that end, the broadcasters in question may grant sub-licences, at reasonable market prices, to broadcasters which fulfil those conditions. If, however, no broadcaster fulfilling the conditions in question declares itself willing to take such sub-licences, the broadcaster having acquired exclusive rights may make use of them.
11. Under Article 4(1) of the Decree of 27 February 2003 ( Moniteur belge of 17 April 2003, p. 19637), adopted by the Parliament of the French Community, the Government of the French Community may, after consulting the Conseil supérieur de l’audiovisuel (Broadcasting Authority), adopt a list of events which it considers to be of major importance for the public of that community. Such events may not be subject to the exercise of exclusive rights by a television broadcaster or by the RTBF in such a way as to deprive a substantial proportion of the public in that community of access to these events via a free television service.
12. In order for an event to be eligible for inclusion in the list of events of major importance for society, it must, under Article 4(2) of the Decree of 27 February 2003, fulfil at least two of the following criteria:
– be particularly popular with the public of the French Community in general, not just those who follow such events as a matter of course;
– have a cultural importance generally recognised by the public of the French Community and be part of that community’s cultural identity;
– involve a Belgian personality or team participating in the event concerned in the context of a competition or event of international importance;
– be traditionally broadcast in a programme of a free television service in the French Community and attract a wide public.
13. Under Article 4(3) of the decree, a television broadcasting service is considered to be ‘free’ if it broadcasts in the French language and can be received by 90% of households with television reception equipment that are located in the French‑speaking region or the bilingual Brussels-Capital region. Apart from the technical costs, reception of this service cannot be subject to payment other than the subscription price for the basic cable package.
14. Under Article 2 of the Order of 8 June 2004 ( Moniteur belge of 6 September 2004, p. 65247), adopted by the Government of the French Community, ‘[a] television broadcaster service in the French Community intending to exercise the exclusive broadcasting rights it holds to an event of major importance must broadcast it on a free television service in accordance with the Annex to this Order’.
15. The annex to the Order of 8 June 2004 and the consolidated list of events of major importance for the Kingdom of Belgium include the World Cup, live and in full.
16. By letters of 15 January 2001 and 16 May 2002, FIFA submitted its observations to the ministry of the Flemish Community concerning the possible inclusion of the World Cup in a list of events of major importance for Belgian society, expressing opposition to the inclusion of the entire World Cup in such a list.
17. By letter of 10 December 2003, the Kingdom of Belgium notified the Commission of the measures taken pursuant to Article 3a of Directive 89/552.
18. The measures in question were the subject-matter of Commission Decision 2007/479/EC of 25 June 2007 on the compatibility with Community law of measures taken by [the Kingdom of] Belgium pursuant to Article 3a(1) of Directive 89/552 (OJ 2007 L 180, p. 24) (‘the contested decision’).
19. The operative part of the contested decision is worded as follows:
‘ Article 1
The measures pursuant to Article 3a(1) of Directive [89/552] notified by [the Kingdom of] Belgium to the Commission on 10 December 2003, as published in the Official Journal of the European Union
C 158 of 29 June 2005, are compatible with Community law.
Article 2
The measures, as finally taken by [the Kingdom of] Belgium and set out in the Annex to this Decision, shall be published in the Official Journal in accordance with Article 3a(2) of Directive [89/552].’
20. 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 Belgian measures was drawn up in a clear and transparent manner and a far-reaching consultation process had been launched in Belgium.
(5) The Commission was satisfied that the events listed in the Belgian 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 number of the events listed in the Belgian measures, including the summer and winter Olympic Games as well as the World Cup Finals and the European Football Championship Finals tournaments (men), 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 Belgium, as they are particularly popular with the general public, not just with those who usually follow sport events.
…
(8) The listed football events involving national teams have a special general resonance in Belgium as they give Belgian teams the opportunity to promote Belgian football at international level.
…
(16) 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. …
(17) The Belgian 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.
(18) The Belgian measures are compatible with [the 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.
…
(22) It follows from the judgment [in Case T-33/01 Infront WM
v Commission
[2005] II-5897] that the declaration that measures taken pursuant to Article 3a(1) of Directive [89/552] are compatible with Community law constitutes a decision within the meaning of Article 249 [EC], which must therefore be adopted by the Commission. Accordingly, it is necessary to declare by this Decision that the measures notified by [the Kingdom of] Belgium are compatible with Community law. The measures, as finally taken by [the Kingdom of] Belgium and set out in the Annex to this Decision, should be published in the Official Journal in accordance with Article 3a(2) of Directive [89/552].’
Procedure and forms of order sought
21. By document lodged at the Registry of the Court on 4 October 2007, FIFA brought the present action.
22. By separate document, lodged at the Court Registry on 11 October 2007, 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.
23. By documents lodged at the Court Registry on 25 and 29 January 2008, the Kingdom of Belgium, the Federal Republic of Germany and the United Kingdom of Great Britain and Northern Ireland applied for leave to intervene in the present proceedings in support of the form of order sought by the Commission. By order of 31 March 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.
24. By letter lodged at the Court Registry on 26 February 2008, FIFA asked the Court to invite the Commission, by way of measures of organisation of procedure, to produce certain documents which were referred to in the defence lodged by the Commission.
25. 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.
26. By order of 15 December 2009, the present case was joined with Case T‑68/08 FIFA
v Commission for the purposes of the oral procedure.
27. 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 certain questions to FIFA and to the Commission. The Court’s questions were replied to within the prescribed time-limit.
28. 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, the Federal Republic of Germany and the United Kingdom to pay the costs.
29. The Commission contends that the Court should:
– dismiss the action;
– order FIFA to pay the costs.
30. The Kingdom of Belgium, the Federal Republic of Germany and the United Kingdom contend that the Court should dismiss the action. The Kingdom of Belgium and the Federal Republic of Germany also contend that FIFA should be ordered to pay the costs of the proceedings.
Law
Admissibility
Arguments of the parties
31. As regards issues relating to the admissibility of the action, the Commission stated at the hearing that, following the judgment in Case C‑125/06 P Commission
v Infront WM [2008] ECR I‑1451, it was withdrawing the arguments as to the inadmissibility of the action that it had put forward in its statement in defence.
32. 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. Nor did FIFA bring any action against the national measures before the Belgian 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. It follows that FIFA has no legal interest in bringing an action challenging the contested decision.
33. The Federal Republic of Germany submits that FIFA has no legal interest in challenging the contested decision since, at the time of its adoption, FIFA had already sold the broadcasting rights for the World Cup matches for 2006, 2010 and 2014. Thus, FIFA’s position in terms of the possibility of selling the broadcasting rights for those competitions to the broadcasters of its choice was not affected by the contested decision. Nor does FIFA have a legal interest in challenging the contested decision with regard to competitions organised after 2014 since, first, the broadcasting rights for the matches in those competitions have not yet been exploited and, second, the Commission assessed the compatibility of the Belgian measures with Community law in the light of particular events and not of all World Cups which will take place in future. The annulment of the contested decision would therefore benefit only broadcasters established outside Belgium wishing to broadcast World Cup matches in Belgium. The contested decision is, moreover, of no direct concern to FIFA.
34. FIFA submits that the contested decision produces legal effects and that, moreover, it is of direct and individual concern to it.
Findings of the Court
35. The grounds of inadmissibility put forward by the Kingdom of Belgium and the Federal Republic of Germany raise a matter of public policy, since they involve FIFA’s legal interest in bringing proceedings, its standing to bring proceedings and compliance with the time-limit for bringing an action. 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 interveners in question do not have standing to raise them as the Commission no longer disputes 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).
36. 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 Commission
v Infront WM, paragraph 31 above, paragraph 47, and the case-law cited).
37. In that regard, under Article 1 and Article 3(1) of the Order of 28 May 2004 (see paragraphs 9 and 10 above), television broadcasters which do not satisfy the requirements of the second paragraph of Article 2 thereof may not exercise exclusive broadcasting rights for the World Cup in the Dutch-speaking region and the Brussels-Capital region unless they can guarantee, on the basis of contracts concluded, that the conditions in question will be complied with. Similarly, under Article 2 of and the annex to the Order of 8 June 2004 (see paragraph 14 above), television broadcasters in the French Community intending to exercise the exclusive broadcasting rights to World Cup matches must broadcast them on a television service fulfilling the conditions referred to in paragraph 13 above.
38. 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 Kingdom of Belgium which do not fulfil the conditions set out in paragraphs 9 and 13 above does not produce the legal effects normally arising from such exclusivity. Under the rules established by the Flemish and French communities in Belgium in their respective spheres of competence, such television broadcasters must, for the purposes of broadcasting World Cup matches, utilise the services of another broadcaster which fulfils those conditions, with the result that the exclusivity clause the broadcaster stipulates is rendered nugatory.
39. Although, admittedly, these legal consequences arise from the Belgian legislation and not 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 under their jurisdiction comply with the conditions which govern the broadcasting on Belgian television of the events included in the consolidated list annexed to the contested decision and are defined by the Kingdom of Belgium 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 Kingdom of Belgium wishing to purchase broadcasting rights for Belgium originally held by FIFA (see, to that effect, Commission
v Infront WM, paragraph 31 above, paragraphs 62 and 63).
40. Therefore, the mechanism of mutual recognition triggered by the contested decision obliges the Member States to preclude the exercise of broadcasting rights for World Cup matches on an exclusive basis by television broadcasters under their jurisdiction which do not fulfil the conditions set out in paragraphs 9 and 13 above, with the result that the rights originally held by FIFA are also affected when they are offered publicly to broadcasters not under the Kingdom of Belgium’s jurisdiction, but rather that of another Member State.
41. 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 31 above, paragraphs 60 and 61).
42. The contested decision is therefore of direct concern to FIFA.
43. 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 31 above, paragraph 70, and the case-law cited).
44. In the present case, it is not disputed that, irrespective of the legal nature and the 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.
45. The contested decision is therefore of individual concern to FIFA.
46. With respect to the Kingdom of Belgium’s argument that FIFA did not challenge the Belgian 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.
47. 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 Belgian 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
[2005] ECR II‑5897, paragraph 109).
48. As to the Federal Republic of Germany’s argument that at the time of the adoption of the contested decision FIFA had already sold the broadcasting rights for the 2006, 2010 and 2014 World Cups, suffice it to state that the Commission declared the measures adopted by the Kingdom of Belgium, as reproduced in the annex to the contested decision, to be compatible with Community law. Those measures refer to the World Cup without specifying any temporal limitation, with the result that they are covered by the contested decision for as long as they remain in force. Accordingly, FIFA’s legal interest in bringing proceedings cannot be called into question on the ground put forward by the Federal Republic of Germany.
49. The arguments alleging inadmissibility of the action put forward by the Kingdom of Belgium and the Federal Republic of Germany must, accordingly, be rejected.
Substance
50. FIFA puts forward six pleas in law: first, infringement of Article 3a(2) of Directive 89/552 on the ground that the Commission incorrectly concluded that the Belgian measures were compatible with Article 49 EC; secondly, infringement of Article 49 EC; thirdly, infringement of Article 3a(2) of Directive 89/552 on the ground that the Commission incorrectly concluded that the Belgian measures were compatible with Article 43 EC; fourthly, infringement of Article 3a(2) of Directive 89/552 on the ground that the Commission incorrectly concluded that the Belgian measures were compatible with FIFA’s right to property; fifthly, infringement of Article 3a(2) of Directive 89/552 on the ground that the Commission incorrectly concluded that the procedure which led to the adoption of the Belgian measures was clear and transparent; and, sixthly, failure to state reasons.
51. 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.
52. 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.
53. 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 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 position than companies from the Member State which adopted them (see, to that effect, Case C‑255/97 Pfeiffer
[1999] ECR I‑2835, paragraph 19).
54. 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 53 above, paragraph 19, and United Pan-Europe Communications Belgium and Others, paragraph 53 above, paragraph 39, and the case-law cited).
55. 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 53 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.
56. In the present case, as noted in recital 17 of the contested decision, the measures adopted by the Kingdom of Belgium 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.
57. 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 is, moreover, not disputed by FIFA.
58. Next, as noted in paragraph 54 above, the measures in question must also be appropriate for attaining the objective which they pursue and not go beyond what is necessary in order to attain it.
59. 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.
60. It follows that, as observed 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.
61. On the other hand, in the light of the findings set out in paragraphs 52 to 57 above, that recital means 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.
62. It is in the light of those considerations that the merits of the pleas put forward by FIFA fall to be examined.
63. Lastly, since in its sixth plea, put forward in the reply, FIFA alleges a failure to state reasons in respect of the Commission’s assessment relating to the importance of all World Cup matches for Belgian society, the Court will first examine that plea before turning to the first plea, which questions the merits of that assessment.
The sixth plea: failure to state reasons
– Arguments of the parties
64. FIFA submits that there is nothing in recital 18 in the preamble to Directive 97/36 to indicate that the reference to the World Cup is to be construed as referring automatically to all 64 matches of the World Cup tournament as events of major importance for society. Quite the contrary: a breakdown of those matches into, on the one hand, ‘prime’ matches, including the semi-finals, the final and matches involving the relevant national team, in this case the Belgian national team, and, on the other, ‘non-prime’ matches, including all other matches, is warranted and corresponds to the method applied 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) relating to the implementation of Article 3a of Directive 89/552. Recital 18 in the preamble to Directive 97/36 does not, therefore, relieve the Commission of its duty to set out the reasons why it endorses the inclusion of all World Cup matches in the Belgian list of events of major importance for the society of that Member State.
65. However, the Commission’s appraisals contained in recitals 6 and 16 of the contested decision are not accompanied by any evidence, with the result that they cannot be regarded as constituting an adequate set of reasons in light of the definition of an event of major importance for society contained in recital 21 in the preamble to Directive 97/36. The contested decision in fact contains nothing establishing that all World Cup matches fulfil the criteria adopted by the Commission.
66. The contested decision does not, moreover, contain any description of the data relating to the Belgian media landscape which the Commission allegedly took into account, as stated in recital 3 thereof, or of other information which it states it had available to it, such as viewing figures. In those circumstances, it is impossible for FIFA to set out its point of view on the nature and relevance of the factors which led the Commission to consider that all World Cup matches are of major importance for Belgian society, and for the Court to conduct the review with which it is entrusted, with the result that the contested decision should be annulled.
67. The Commission, supported by the interveners, disputes the merits of this plea.
– Findings of the Court
68. It should be noted, first of all, that an absence of reasons or inadequacy of the reasons stated constitutes an infringement of essential procedural requirements for the purposes of Article 230 EC and is a plea involving a matter of public policy which may, and even must, be raised by the Community judicature of its own motion (see Case C‑89/08 P Commission
v Ireland and Others [2009] ECR I‑11245, paragraph 34, and the case-law cited). The fact that this plea was put forward for the first time in the reply does not, therefore, prevent the Court from examining its merits.
69. Next, 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).
70. FIFA complains that the Commission did not provide reasons for its conclusion that all World Cup matches are to be considered of major importance for Belgian society. It should also be noted that, in its written response to the question put by the Court by way of a measure of organisation of procedure (see paragraph 27 above), FIFA explicitly confirmed what was indirectly evident from a number of points in its written pleadings, namely, that it considers the inclusion of ‘prime’ World Cup matches, that is, the final, the semi-finals and matches involving the Belgian national team, in the Belgian list to be compatible with Community law, provided that the requirements of a clear and transparent procedure are also complied with.
71. 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.
72. 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.
73. Given that specific context which enables the World Cup to be regarded as a single event, as observed in recital 16 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 101 to 109 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 Belgium, 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.
74. It follows that the reasoning contained in recitals 6 and 16 of the contested decision (see paragraph 20 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 Belgian 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.
75. The sixth plea in law must accordingly be rejected.
The first plea: infringement of Article 3a(2) of Directive 89/552 on the ground that the Commission incorrectly concluded that the Belgian measures were compatible with Article 49 EC
– Arguments of the parties
76. FIFA submits that, as stated moreover in recital 17 of the contested decision, the Belgian list is a restriction on the freedom to provide services, in that it limits the number of broadcasters which will be interested in acquiring the rights to broadcast World Cup matches in Belgium. Given the importance of exclusivity in the acquisition of such rights, no broadcaster established in a Member State other than Belgium which does not fulfil the conditions set out in paragraphs 9 and 13 above will be interested in acquiring non-exclusive broadcasting rights, even though it would be possible for it to offer its services to the communities concerned in Belgium.
77. Whilst accepting that restrictions may be placed on the exercise of fundamental freedoms established by the Treaty for overriding reasons in the public interest, such as public access to events of major importance for society as contemplated in recital 21 in the preamble to Directive 97/36, FIFA submits that the Commission must undertake a full review of the compatibility of the measures adopted or envisaged on the basis of Article 3a of Directive 89/552 with Community law, as those measures are exceptions which must be interpreted restrictively. The Member State concerned must demonstrate that the restrictions in question are justified, necessary and proportionate and the Commission must show, in the present proceedings, that it was provided with the necessary evidence to that effect.
78. In that regard, FIFA states that ‘prime’ matches may legitimately be regarded as being of major importance for society for the purposes of that provision, which is indeed consistent with its own policy. Under that policy, the semi-finals, the final, the matches involving the relevant national team and the opening match of the World Cup are to be broadcast live on a free channel.
79. However, it is apparent from a number of points in the Commission’s written pleadings that it did not conduct an appropriate review of the compatibility of the Belgian list with Community law, inasmuch as that list includes all World Cup matches, on the ostensible ground that recital 18 in the preamble to Directive 97/36 makes such a review redundant. In FIFA’s submission, the contested decision should therefore be annulled.
80. FIFA further submits that the disputed measures are not consistent with their stated purpose, namely to ensure public access to events of major importance for Belgian society, since in the long term they ‘impoverish’ the sporting events in the list by reducing the revenue they generate and thus harm their ‘preservation’ as events of major importance for society.
81. Regarding the importance of ‘non-prime’ matches for Belgian society, FIFA submits, first, that those matches do not have any special resonance except for football fans and, secondly, that those matches have not traditionally been broadcast by free television channels or attracted large numbers of viewers. Accordingly, ‘non-prime’ matches do not fulfil the two criteria adopted by the Commission in recitals 6 and 16 of the contested decision, with the result that it erred in that regard.
82. Regarding the criterion relating to the resonance of the World Cup in Belgian society, FIFA submits that the inclusion of all World Cup matches in the list of events of major importance for Belgian society is disproportionate in relation to the objective pursued. The ‘non-prime’ matches of the World Cup attract only a fraction of the number of viewers attracted by the ‘prime’ matches, but also of those attracted by a number of other Belgian television programmes, with the result that their popularity must be regarded as being very limited. The disproportionate nature of the inclusion is, moreover, demonstrated by the fact that the broadcasters themselves do not broadcast all matches live.
83. Those conclusions are consistent with the Commission’s decision-making practice and the case-law, and are supported by the particularly low viewing figures obtained for certain ‘non-prime’ matches, which attracted between 27 000 and 33 000 viewers in Wallonia.
84. In particular, a study based on information from a Belgian research firm’s database shows that the average number of non-fans of football who watched at least 30 consecutive minutes of all the ‘non-prime’ matches of the World Cup in 1998, 2002 and 2006 represented, respectively, merely 2.5%, 0.8% and 2.5% of the total audience for the Flemish Community and 1.4%, 1.2% and 1.4% of the total audience for the French Community. By contrast, 17.6%, 9.5% and 10% of football fans watched at least 30 consecutive minutes of all ‘prime’ matches of the World Cup in 1998, 2002 and 2006 in the Flemish Community, the corresponding figures being 10.9%, 9% and 12.5% for the French Community.
85. Thus, in the absence of any other evidence referred to in the contested decision concerning the special resonance that World Cup matches and, a fortiori, the ‘non‑prime’ matches of that tournament have among the general public in Belgium, the Commission erred in finding that all World Cup matches are of major importance for Belgian society.
86. Nor can it be argued that the ‘non-prime’ matches are of major importance for Belgian society when the Belgian legislation does not require television broadcasters to broadcast them, whereas such obligations are imposed for other events .
87. Regarding the criterion of participation of the Belgian national team in recital 8 of the contested decision, FIFA argues that it is, by definition, not met in the case of the ‘non-prime’ matches.
88. As to the criterion relating to the broadcasting of the World Cup having been traditionally carried out by free television channels and the ‘commanding’ of large television audience s, FIFA submits, first, that it is inappropriate, since a wide range of programmes, such as films and comedies, would fulfil that criterion without thereby being included in the list of events of major importance for Belgian society. Next, FIFA states that fulfilment of that criterion is merely an indicator of the importance of the event allowing consideration of the possibility of including it in the list. Since, moreover, recital 16 of the contested decision provides no evidence to the contrary, the Commission could not legitimately conclude that that criterion was satisfied and that the inclusion of all World Cup matches in the Belgian list of events of major importance for society is a proportionate measure.
89. FIFA reiterates that the ‘non-prime’ matches of the World Cup are often of such little interest that they are not even broadcast live on free television and that, when they are, they do not attract large numbers of viewers. Thus, in the World Cup in 1998, 2002 and 2006, 24 matches in total were not broadcast live to one or both of the Belgian communities which adopted the disputed measures, whilst eight of those matches which were shown via deferred coverage in Wallonia drew an extremely low number of viewers. FIFA adds that the fact that two matches are played simultaneously does not justify the failure to broadcast one of them, since they can be broadcast by different channels, and sub-licences are also possible for this specific case.
90. The ‘non-prime’ matches of the 2006 World Cup, moreover, drew an average of only 326 000 and 279 000 viewers, respectively, in Flanders and Wallonia, compared with an average of 722 000 and 583 000 viewers for the ‘prime’ matches that same year, similar to trends which can be observed for the World Cup in 1998 and 2002. The Commission therefore also erred in stating that all World Cup matches have always commanded large viewing audiences in Belgium and thus disregarded the requirements of Article 3a of Directive 89/552.
91. FIFA further states that public access to World Cup matches could have been obtained through less restrictive measures, such as recourse to fee-charging broadcasters whose services may none the less be received by 90% of the Belgian population, broadcast of highlights or entire matches via deferred coverage by broadcasters fulfilling the conditions set out in paragraphs 9 and 13 above, or even live or deferred radio coverage. Thus, live broadcast of only the ‘prime’ matches could be reserved for broadcasters fulfilling those conditions. In failing to consider those possibilities, the Commission cannot legitimately conclude that the inclusion of all World Cup matches in the Belgian list of events of major importance for society is a necessary and proportionate measure in relation to the objective it pursues.
92. FIFA further submits that if, contrary to its submissions, Article 3a(1) of the directive were to be interpreted as meaning that the World Cup as a whole must be considered an event of major importance for society because of the wording of recital 18 in the preamble to Directive 97/36, then a plea pursuant to Article 241 EC against that provision should be deemed to have been put forward in the application and, in any event, in the reply. Under that plea, FIFA relies on all arguments intended to demonstrate, in its view, that there is nothing to justify considering the entire World Cup to be a single event of major importance for society.
93. The Commission, supported by the interveners, disputes the merits of this first plea.
– Findings of the Court
94. 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.
95. 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 59 and 60 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 importance for society (see paragraph 61 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.
96. As stated in paragraphs 59 and 60 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.
97. 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 92 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.
98. Thirdly, as explained in paragraphs 71 and 72 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 Belgian authorities’ approach falls within the limits of their discretion.
99. 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.
100. 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 Belgian society and that the World Cup should be considered in its entirety and not as a series of individual events (recitals 6 and 16 of the contested decision, see paragraph 20 above), the Commission did not make any error.
101. 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 16 of the contested decision.
102. The fact that the percentage of non-fans of football who watched 30 consecutive minutes of all ‘non-prime’ World Cup matches in 1998, 2002 and 2006 is very low (see paragraph 84 above) is not conclusive, since not all ‘non-prime’ matches must necessarily be of major importance for Belgian society in order for the World Cup to be legitimately included, in its entirety, on the Belgian list of such events. On the contrary, it is sufficient that the characteristic described in paragraph 72 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.
103. This finding also invalidates FIFA’s argument to the effect that certain ‘non‑prime’ World Cup matches in 1998, 2002 and 2006 were not broadcast live or were not broadcast at all, in particular as that argument concerns, apart from two exceptions, matches taking place at the same time as other ‘non-prime’ matches which nevertheless attracted, according to the document adduced by FIFA entitled ‘Television audiences in Belgium for football’s World Cup, 1998 to 2006’, between 125 000 and 697 000 viewers in Flanders, and between 152 000 and 381 000 viewers in Wallonia. Accordingly, failure to broadcast or deferred broadcasting of a limited number of ‘non-prime’ matches does not require the conclusion to be drawn that, despite their features (see paragraphs 72 and 99 above), they are not, as a whole, of major importance for Belgian society, particularly when those solutions are adopted for objective reasons, such as when two matches are played simultaneously. It should also be noted in that regard that, according to the same document, the practice of not broadcasting matches at all when other World Cup matches are being played at the same time is specific to Flanders. Moreover, contrary to FIFA’s submissions, recital 16 of the contested decision (see paragraph 20 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. As regards the argument to the effect that ‘non-prime’ matches do not, by definition, involve the Belgian national team, it need only be pointed out, first, that, as stated earlier, the World Cup may legitimately be regarded as a single event of major importance for Belgian society and, second, that the Commission found only that the first and fourth criteria in recital 5 of the contested decision were satisfied, without specifically reaching any conclusion as to the third criterion.
104. Nor can the arguments based on viewing figures for ‘non-prime’ World Cup matches in 1998, 2002 and 2006 (see paragraph 90 above) succeed.
105. 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 the document entitled ‘Television audiences in Belgium for football’s World Cup, 1998 to 2006’, ‘non-prime’ matches drew an average of 32% of the viewers who watched ‘prime’ World Cup matches in 1998, the percentage being 31% and 46% respectively for the World Cups of 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 Belgium, by matches not taking place in the context of a major international football competition involving national teams and which, in addition, do not involve the Belgian national team.
106. It should be noted correspondingly that, according to the document entitled ‘Television audiences in Belgium for football’s World Cup, 1998 to 2006’, of the ‘non-prime’ matches of the 1998 World Cup, 12 drew between 1 and 1.345 million viewers, whereas eight drew between 799 000 and 976 000 viewers. According to the same document, in the case of the 2002 World Cup, of the ‘non‑prime’ matches, 15 drew between 624 000 and 915 000 viewers and seven drew between 511 000 and 589 000 viewers. In the case of the 2006 World Cup, that document states that, of the ‘non-prime’ matches, 10 drew between 808 000 and 1.185 million viewers and 14 drew between 649 000 and 768 000 viewers.
107. The document ‘Television audiences in Belgium for football’s World Cup, 1998 to 2006’ further states that, for Belgium as a whole, ‘prime’ matches drew an average of 2.172, 1.418 and 1.305 million viewers respectively for the World Cup competitions in 1998, 2002 and 2006. Compared to those averages, the figures referred to in paragraph 106 above demonstrate that ‘non‑prime’ matches draw very large audiences in Belgium, which can only be explained by the fact that those matches are included in the World Cup fixture list. They thus confirm the findings in paragraphs 71, 72 and 99 above and support the position set out in recital 16 of the contested decision to the effect that World Cup matches, including ‘non-prime’ matches, have traditionally drawn large numbers of viewers.
108. 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 83 above). Of the three matches referred to by FIFA, two began at 8.30 hrs and the third at 13.30 hrs, Belgian time, and they were played at the same time as three other ‘non-prime’ matches which nevertheless drew audiences of 221 000, 290 000 and 163 000 viewers respectively in Wallonia. 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 2002 competition 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 106 above. Moreover, according to a press release annexed to the rejoinder, 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.
109. Accordingly, the viewing figures relating to ‘non-prime’ matches confirm rather than invalidate the finding in paragraph 100 above.
110. Moreover, the finding in paragraph 107 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 83 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 the Belgian national team and, even when it does not, the absence of the Belgian national team is usually established after the list of events of major importance for Belgian society has been drawn up, and also after the television broadcasting rights have been sold for the relevant year.
111. As regards the argument based on the absence of an obligation to broadcast ‘non-prime’ matches (see paragraph 86 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.
112. Given that FIFA’s arguments to the effect that the Commission erred in upholding the Belgian authorities’ assessment that the World Cup in its entirety constitutes an event of major importance for Belgian society must be rejected, so too must the argument that the Commission failed to conduct an appropriate assessment of the importance of ‘non-prime’ matches for Belgian society (see paragraph 79 above).
113. Regarding the argument to the effect that other programmes fulfil the fourth criterion set out in recital 5 of the contested decision (see paragraph 88 above), it should be noted, first of all, that the programmes alluded to by FIFA are not events within the meaning of recital 21 in the preamble to Directive 97/36.
114. Next, it should be noted that Article 3a(1) of Directive 89/552 does not oblige the Member States to draw up a list of events of major importance for society; nor does it require them, should such a list be drawn up, to include an event in the list even if the event could legitimately have been included. In addition to stating that each Member State ‘may’ adopt measures attaining the objectives to which it refers, that provision gives concrete expression to the ability of the Member States to derogate from certain rules of the Treaty, such as those governing freedom to provide services. Where a selection is made from among a number of specific events of major importance for society within the meaning of Directive 97/36, the Member States may not be required, directly or indirectly, to include in their lists events other than the ones they choose to include, or to derogate from the rules of the Treaty any more than they wish to do. Furthermore, the Commission’s assessment under Article 3a(2) of Directive 89/552 as to the nature of the events included as events of major importance for society is conducted in relation to their own features and not in relation to the features of other events which have not been included.
115. Therefore, when an event is of major importance for the society of a Member State, the Commission does not err in law if, in the review it carries out pursuant to Article 3a(2) of Directive 89/552, it does not oppose its inclusion in the list drawn up by the Member State in question on the ground that another event, of possibly even greater importance for that society, is not included.
116. Thus even if there are other events, within the meaning of recital 21 in the preamble to Directive 97/36, of even greater importance for Belgian society than the World Cup but which are not included in the list drawn up by the Belgian authorities, the Commission did not infringe the principle of equal treatment in accepting the inclusion of the World Cup in the disputed list.
117. As to the arguments challenging the proportionality of the inclusion of all World Cup matches in the Belgian list of events of major importance for society, it should be noted that those referred to in paragraph 82 above reveal 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 52 to 57 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 58 above). Suffice it to state in that regard that, as shown by the analysis conducted in connection with the present plea, the World Cup may legitimately be regarded as a single event of major importance for Belgian society, the viewing figures relating to ‘non-prime’ matches confirming rather than invalidating the assessment in recitals 6 and 16 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 Belgian 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 Belgian society was appropriate and proportionate, given that the World Cup is, by nature, a single event.
118. As regards the other arguments alleging infringement of the principle of proportionality as referred to in paragraph 91 above, suffice it to state that the possibilities proposed by FIFA are not compatible with the definition of free television set out in recital 22 in the preamble to Directive 97/36, a definition which FIFA expressly accepts in its reply. It follows that the Commission did not have to examine those possibilities before adopting its finding that the inclusion of the World Cup in its entirety in the list of events of major importance for Belgian society was proportionate.
119. It follows that, in finding that the inclusion of all World Cup matches in the list of events of major importance for Belgian society was compatible with Community law, the Commission did not infringe Article 3a(2) of Directive 89/552, with the result that the first plea in law must be rejected.
The second and third pleas: infringement of Article 49 EC and infringement of Article 3a(2) of Directive 89/552 on the ground that the Commission incorrectly concluded that the Belgian measures were compatible, respectively, with Article 49 EC and Article 43 EC
– Arguments of the parties
120. FIFA states in its application that the arguments it put forward in support of its first plea also demonstrate that, in finding that the inclusion of all World Cup matches in the list of events of major importance for Belgian society was compatible with Community law, the Commission infringed Article 49 EC.
121. In its reply, FIFA adds that, first, even though it applies without distinction to domestic and foreign broadcasters, the Belgian legislation prevents it from selling the exclusive broadcasting rights for any World Cup match to broadcasters failing to fulfil the conditions set out in paragraphs 9 and 13 above and, secondly, by virtue of the mechanism of mutual recognition triggered by the contested decision, broadcasters established in other Member States cannot broadcast on an exclusive basis any match of the World Cup in Belgium because they do not fulfil those conditions. Even though the legislation enacted by the Flemish Community leaves open the possibility for the broadcasters in question to broadcast World Cup matches on an exclusive basis where no broadcaster fulfilling the conditions set out in paragraph 9 above declares itself willing to obtain sub-licences from them, this eventuality is purely theoretical. The elimination of the possibility of acquiring exclusive broadcasting rights in Belgium removes all interest for broadcasters established in other Member States to obtain them, thereby preventing them from broadcasting any World Cup match in Belgium.
122. The restrictive effects on the freedom of broadcasters established in Member States other than Belgium to provide services could nevertheless have been reduced to a proportionate level by including in the list of events of major importance only those World Cup matches which truly are of such importance for Belgian society, namely the ‘prime’ matches, to which FIFA has always added the opening match and ceremony. By contrast, the Belgian measures, as approved by the Commission in the contested decision, give rise to restrictions on freedom to provide services which are disproportionate and not justified in relation to the objective they pursue.
123. Within the framework of its plea alleging infringement of the right of establishment, FIFA states in its application that the inclusion of all World Cup matches in the list of events of major importance for Belgian society prevents broadcasters wishing to establish themselves in Belgium and to offer pay-TV services for that purpose from obtaining exclusive broadcasting rights for World Cup matches in Belgium. The acquisition of non-exclusive broadcasting rights does not enable a small broadcaster to generate the revenues, subscribers and prestige necessary to establish itself in Belgium, with the result that the Commission erred in finding that the inclusion of all World Cup matches in the list of events of major importance for Belgian society did not infringe Article 43 EC.
124. The Commission, supported by the interveners, disputes the merits of these pleas.
– Findings of the Court
125. It is not disputed, and is, moreover, acknowledged in recital 17 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.
126. Moreover, as stated by FIFA, the Belgian measures are liable to place broadcasters established in other Member States in a less favourable factual or legal position than broadcasters established in Belgium. In that regard, notwithstanding the fact that the legislation described in paragraphs 7 to 15 above applies without distinction to domestic and foreign broadcasters, it is, in reality, much less likely that no broadcaster fulfilling the criteria set out in paragraphs 9 and 13 above, most probably established in Belgium, will be interested in broadcasting the World Cup, thereby giving a broadcaster wishing to establish itself in Belgium the opportunity to broadcast that event on an exclusive basis, than the reverse situation. Moreover, under the Belgian legislation, that is possible only for the Flemish Community (see paragraph 10 above). It follows that the Belgian measures are in fact impediments to freedom of establishment as laid down in Article 43 EC.
127. 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 52 to 58 above).
128. 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 Belgian 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.
129. However, like the arguments examined in paragraph 117 above, the grounds put forward in support of the plea alleging infringement of Article 49 EC suffer from the same confusion between, on the one hand, the major importance of an event for society, which is the first condition the event must fulfil and is the overriding reason in the public interest justifying a restriction of a fundamental freedom guaranteed by the Treaty (see paragraphs 52 to 57 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 58 above). Suffice it to state in that regard that, as shown by the analysis conducted in connection with the first plea, the World Cup may legitimately be regarded as a single event of major importance for Belgian society, the viewing figures relating to ‘non-prime’ matches confirming, rather than invalidating, the assessment in recitals 6 and 16 of the contested decision. It is therefore clear that the argument alleging that, in order to be proportionate, the disputed list ought to have been restricted to ‘prime’ matches, as they are the only ones of major importance for Belgian society, 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 Belgian society was proportionate.
130. Regarding freedom of establishment, in the light of the considerations in paragraphs 127 and 129 above, the arguments put forward by FIFA in that regard must also be rejected.
131. The second and third pleas in law must accordingly be rejected.
The fourth plea: infringement of Article 3a(2) of Directive 89/552 on the ground that the Commission incorrectly concluded that the Belgian measures were compatible with FIFA’s right to property
– Arguments of the parties
132. FIFA argues that the prohibition on selling exclusive broadcasting rights for any World Cup match to broadcasters not fulfilling the conditions set out in paragraphs 9 and 13 above annihilates the essence of its property right and, in any event, restricts the right in a disproportionate and unjustified manner. The possibility of selling such rights in a tendering procedure in which a number of players can take part is the strongest factor determining the value of those rights and is FIFA’s greatest source of revenue. In failing to find an infringement of the right to property, protected by Article 1 of the First Protocol to the ECHR and by Community law, the Commission therefore erred in law.
133. Moreover, the possibility under the Flemish legislation for a broadcaster not fulfilling those conditions to broadcast World Cup matches is purely theoretical (see paragraph 121 above), whilst that possibility is not even offered in Wallonia.
134. The objective of having public access to events of major importance for Belgian society could have been achieved by including in the list of such events only those World Cup matches which really do carry such importance for Belgian society, namely the ‘prime’ matches.
135. The Commission, supported by the interveners, disputes the merits of this plea.
– Findings of the Court
136. 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.
137. Thus, since the value of those rights is liable to be affected by the legal effects arising from the contested decision (see paragraphs 37 to 41 above), FIFA’s property right is also affected.
138. 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.
139. 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).
140. It must be borne in mind in that regard that, for the reasons set out in paragraphs 98 to 119 above and contrary to FIFA’s submissions, the World Cup may legitimately be regarded as a single event of major importance for Belgian society, the viewing figures relating to ‘non-prime’ matches confirming, rather than invalidating, the assessment in recitals 6 and 16 of the contested decision. In this context, as held in paragraph 117 above, 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 Belgian list is a proportionate measure.
141. Accordingly, the complaint that the inclusion of ‘non-prime’ matches in the list of events of major importance for Belgian 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.
142. 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 Belgium, 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 Belgian measures were proportionate.
143. The fourth plea in law must accordingly be rejected.
The fifth plea: infringement of Article 3a(2) of Directive 89/552 on the ground that the Commission incorrectly concluded that the procedure which led to the adoption of the Belgian measures was clear and transparent
– Arguments of the parties
144. FIFA argues that the Belgian authorities acted arbitrarily and failed to provide explanations about the list of events of major importance for society. It states that the Flemish Media Council has regretted the arbitrary method of composition of the list in question, as well as its length and the lack of explanations about the selection of events.
145. Moreover, in choosing the events to include in the list, the Flemish authorities used criteria which differ from those referred to in recital 5 of the contested decision.
146. First, the criterion according to which the event must have great topical value and attract considerable public interest (see the first indent of paragraph 8 above) differs substantially from the first criterion adopted in recital 5 of the contested decision (see paragraph 20 above) in that it does not require ascertainment of whether the event has a special general resonance beyond those who ordinarily follow the sport or activity concerned, but merely requires that the event have topical value and attract public interest.
147. Second, the criterion according to which the event must take place in the context of an important international competition or be a competition in which the national team, a Belgian club team or one or more Belgian athlete(s) is/are taking part differs substantially from the third criterion in recital 5 of the contested decision, since the latter requires both the involvement of a Belgian team or athlete and that the contest be international.
148. Lastly, FIFA submits that the Belgian authorities did not provide any explanation for the inclusion of all World Cup matches in the list of events of major importance for society, with the result that the Commission could not legitimately conclude that that list had been drawn up in a clear and transparent manner, as required by Article 3a(1) of Directive 89/552.
149. The Commission, supported by the interveners, disputes the merits of this plea.
– Findings of the Court
150. 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.
151. Restrictions on the exercise of the fundamental freedoms guaranteed by the Treaty through national measures justified by overriding reasons in the public interest must also be appropriate for attaining the objective which they pursue and not go beyond what is necessary in order to attain that objective (see paragraph 54 above).
152. It is in order to preserve proportionality and ensure that there is no unjustified discrimination 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 53 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 94 above).
153. In that context, when the Commission finds that a Member State’s national procedure for drawing up the list of events of major importance for society satisfies the requirements of clarity and transparency, taking into account, inter alia, the application of certain selection criteria set out in its decision, those criteria must reflect the essence of the criteria laid down in the relevant national legislation.
154. In the present case, it is clear that the first criterion laid down in the Order of 28 May 2004 does not differ substantially from the first criterion set out in recital 5 of the contested decision. Contrary to FIFA’s submissions, the requirement of ‘considerable public interest’ is, by definition, not met when the sport event in question generates interest only among those who ordinarily follow the sport concerned.
155. As regards the third criterion set out in recital 5 of the contested decision, suffice it to state that the Commission did not find it to be fulfilled in respect of the World Cup. In that regard, recitals 6 and 16 of the contested decision show that, in respect of the World Cup, the Commission found that the first and fourth criteria set out in recital 5 of the contested decision were fulfilled. By contrast, recital 8 of the contested decision, which applies the third criterion set out in recital 5 thereof, does not refer to the World Cup but covers international competitions at club level, such as the Champions League and the UEFA Cup, the matches of which involving Belgian clubs are also included in the disputed list.
156. The remark made by the Flemish Media Council does not contain anything to substantiate that body’s assertion as to the allegedly arbitrary nature of the procedure for drawing up the list for the Flemish Community and moreover it was made in 1999, that is, a number of years before the adoption of the legislative instruments and the disputed list. Nor does its statement about the length of the list in question furnish anything to affect the clarity or transparency of the national procedure.
157. Regarding the assertion that the Belgian authorities did not provide any justification for including all World Cup matches in the list of events of major importance for society, first, it should be borne in mind that the role of the ‘non‑prime’ matches, as stated in paragraph 72 above, is well known and is indubitably known to FIFA, the organiser of the competition in question. Second, FIFA does not dispute that the ‘prime’ matches fulfil the criteria to be classified as being of major importance for Belgian society. It is therefore clear in that context that, when the Belgian authorities also include ‘non-prime’ World Cup matches in the list of events of major importance for society, they do so on the ground that those matches satisfy the same criteria as the ‘prime’ World Cup matches. It must be found, in those circumstances, that FIFA was placed in a position where it could ascertain the reasons why the Belgian authorities included the World Cup in its entirety in the list of events of major importance for society that they adopted and could challenge that choice before the national courts, relying on any factor which, in its view, casts doubt on the assessment of the importance of the ‘non‑prime’ matches for Belgian society, just as it has done in the present action.
158. It follows that the fifth plea in law must be rejected.
FIFA’s request for measures of organisation of procedure
159. The assessments of the pleas put forward by FIFA mean that it is not necessary to adopt the measures of organisation of procedure requested by it (see paragraphs 22 and 24 above).
160. 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 the Belgian list was compatible with Community law and, secondly, whether the list in question was drawn up in a clear and transparent manner. FIFA argues, in particular, that awareness of all observations made by the Commission and by the Belgian authorities during the procedure for evaluating the national measures in question is necessary in order to be able to determine whether those authorities met all the Commission’s requests and whether the viewing figures relating to a number of sporting disciplines were taken into account in a consistent manner, given that, in respect of other competitions, only certain matches were included in the disputed list.
161. It should be observed that, as has been held in the course of the examination of the pleas put forward by FIFA, the Commission did not make any error in concluding that the inclusion of all World Cup matches in the list of events of major importance for Belgian society was compatible with Community law, doing so on the basis of the information it had at its disposal, such as the notification of 10 December 2003 from the Belgian authorities, referred to in recital 1 of the contested decision and annexed to the defence. That notification enabled the Commission to conclude that the procedure put in place in Belgium was clear and transparent, the arguments put forward against that finding in the fifth plea having been rejected.
162. Moreover, the lawfulness of a Commission decision on the compatibility of the measures adopted pursuant to Article 3a of Directive 89/552 with Community law is determined taking into account the version in which they were ultimately approved. Thus, any earlier versions, or observations which the Commission or the national authorities might have expressed in the context of the assessment of those measures, are, by their very nature, not relevant in that regard.
163. As to the argument concerning possible differential treatment of various competitions, in that some of them were included in the disputed list in their entirety whilst others had only certain of their matches included, suffice it to state that there is nothing preventing FIFA from relying on that fact, arising from the list itself, as a ground of annulment of the contested decision, even if it does not know the viewing figures communicated to the Commission in relation to the competitions in question.
164. In those circumstances, the request for measures of organisation of procedure must be rejected and the action as a whole must be dismissed.
Costs
165. 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.
166. The Kingdom of Belgium, the Federal Republic of Germany and the United Kingdom are to bear their own costs, pursuant to Article 87(4) of the Rules of Procedure.
Operative part
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.