62008TJ0068_EN
Parties
Grounds
Operative part
Parties
In Case T‑68/08,
Fédération Internationale de Football Association (FIFA),
established in Zurich (Switzerland), represented initially by E. Batchelor, F. Young, Solicitors, A. Barav, D. Reymond, lawyers and F. Carlin, Barrister, and subsequently by E. Batchelor, A. Barav, D. Reymond, lawyers and F. Carlin, Barrister,
applicant,
v
European Commission, represented initially by F. Benyon, E. Montaguti and N. Yerrell, and subsequently by F. Benyon and E. Montaguti, acting as Agents, assisted by J. Flynn QC and M. Lester, Barrister,
defendant,
supported by
Kingdom of Belgium, represented by C. Pochet, acting as Agent, assisted by J. Stuyck and A. Joachimowicz, lawyers,
and by
United Kingdom of Great Britain and Northern Ireland, represented initially by S. Behzadi-Spencer and V. Jackson, and subsequently by S. Behzadi-Spencer 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 2007/730/EC of 16 October 2007 on the compatibility with Community law of measures taken by the United Kingdom pursuant to Article 3a(1) of 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 295, p. 12),
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 86(1) EC provides: ‘[i]n the case of public undertakings and undertakings to which Member States grant special or exclusive rights, Member States shall neither enact nor maintain in force any measure contrary to the rules contained in this Treaty, in particular to those rules provided for in Article 12 [EC] and Articles 81 [EC] to 89 [EC]’.
4. 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.’
5. 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
6. The applicant, the Fédération Internationale de Football Association (FIFA), is an association of 208 national football associations and is the world governing body of football. Its objectives are, inter alia, to promote football globally and to organise its international competitions. FIFA’s primary source of income is the sale of television broadcasting rights to the finals of the football World Cup (‘the World Cup’), which it organises.
7. By decision of 25 June 1998, the Secretary of State for Culture, Media and Sports of the United Kingdom of Great Britain and Northern Ireland (‘the Secretary of State’), acting pursuant to Part IV of the Broadcasting Act 1996, drew up a list of events of major importance for United Kingdom society, including the World Cup.
8. The adoption of that list was preceded by a consultation of 42 different bodies launched by the Secretary of State in July 1997 concerning the criteria in the light of which the importance of various events for United Kingdom society was to be assessed. That procedure led to the adoption of a list of criteria contained in a document from the Ministry of Culture, Media and Sports dated November 1997, which the Secretary of State was to apply for the purpose of drawing up a list of events of major importance for United Kingdom society. According to that document, an event is particularly liable to be included in the list when it has a special national resonance, not simply a significance to those who ordinarily follow the sport concerned. According to that same document, in order to qualify as such, a national or international sport must be pre-eminent or involve the national team or athletes from the United Kingdom. Of the events which fulfil those criteria, those which command large television audiences or which are traditionally broadcast live on free television channels stand a greater chance of being included in the list. For the purposes of the assessment, the Secretary of State also takes into account other factors relating to the consequences for the sport concerned, such as the suitability of live broadcasting of an event in its entirety, the impact on income for the sport in question, the consequences for the broadcasting market and whether there are arrangements to ensure that access to the event is available by means of delayed coverage or radio commentary.
9. Subsequently, the Secretary of State launched a consultation procedure pursuant to section 97 of the Broadcasting Act 1996 concerning which specific events to include in the list. During that consultation procedure, the Secretary of State sought the views of a number of bodies and interested parties and of holders of television broadcasting rights, such as FIFA. Moreover, the Advisory Group on listed events, established by the Secretary of State, delivered its opinion on the events to be included, proposing with respect to the World Cup the inclusion of the final, the semi-finals and matches involving the national teams of the United Kingdom.
10. Under section 98 of the Broadcasting Act 1996, as amended by the Television Broadcasting Regulations 2000, broadcasters are divided into two categories. The first category includes broadcasters providing a free service which, in addition, can be received by at least 95% of the population of the United Kingdom. The second category includes broadcasters which do not fulfil those conditions.
11. Moreover, under section 101 of the Broadcasting Act 1996, as amended by the Television Broadcasting Regulations 2000, a television programme provider coming within one of those categories can broadcast live all or part of an event included in the list only if a provider coming within the other category can broadcast live, in whole or in part, the same event in the same, or essentially the same, region. If that condition is not fulfilled, a broadcaster wishing to broadcast all or part of the event in question must obtain prior authorisation from the Office of Communications.
12. According to section 3 of the Code on Sports and Other Listed and Designated Events, as in force in 2000, the events included in the list of events of major importance for society are divided into two groups. ‘Group A’ includes events which cannot be covered live on an exclusive basis if certain criteria are not met. ‘Group B’ includes events which may be broadcast live on an exclusive basis only if arrangements have been made to ensure deferred broadcast.
13. Under section 13 of the Code on Sports and Other Listed and Designated Events, an authorisation may be granted by the Office of Communications for listed ‘Group A’ events, which includes the World Cup, where the relevant broadcasting rights have been openly offered on equitable and reasonable terms to all television broadcasting bodies and no body in the other category has expressed its interest in acquiring them.
14. By letter of 25 September 1998, the United Kingdom provided the Commission of the European Communities with the list of events drawn up by the Secretary of State, as required by Article 3a(2) of Directive 89/552, together with other information concerning the United Kingdom legislation adopted pursuant to Article 3a(1) of the same directive. Following an exchange of correspondence between the United Kingdom and the Commission and a fresh notification of measures on 5 May 2000, the Director-General of the Directorate-General (DG) Education and Culture informed the United Kingdom, by letter of 28 July 2000, that the Commission would not raise objections to the United Kingdom measures, which would, accordingly, be published shortly thereafter in the Official Journal of the European Communities .
15. By judgment of 15 December 2005 in Case T‑33/01 Infront WM
v Commission
[2005] ECR II‑5897, this Court annulled the decision contained in the letter of 28 July 2000, on the ground that it constituted a formal decision within the meaning of Article 249 EC that the College of Commissioners itself ought to have adopted ( Infront WM
v Commission, paragraph 178).
16. Following the judgment in Infront WM
v Commission, paragraph 15 above, the Commission adopted Decision 2007/730/EC of 16 October 2007 on the compatibility with Community law of measures taken by the United Kingdom pursuant to Article 3a(1) of [Directive 89/552] (OJ 2007 L 295, p. 12) (‘the contested decision’).
17. The operative part of the contested decision reads as follows:
‘Article 1
The measures taken pursuant to Article 3a(1) of Directive [89/552] and notified by the United Kingdom to the Commission on 5 May 2000, as published in the Official Journal of the European Communities
C 328 of 18 November 2000, are compatible with Community law.
Article 2
The measures, as set out in the Annex to this Decision, shall be published in the Official Journal of the European Union
in accordance with Article 3a(2) of Directive [89/552].’
18. The statement of reasons for the contested decision includes the following recitals:
‘(4) The list of events of major importance for society included in the [United Kingdom] measures was drawn up in a clear and transparent manner and a far-reaching consultation had been launched in the [United Kingdom].
(5) The Commission was satisfied that the events listed in the [United Kingdom] measures met at least two of the following criteria considered to be reliable indicators of the importance of events for society: (i) a special general resonance within the Member State, and not simply a significance to those who ordinarily follow the sport or activity concerned; (ii) a generally recognised, distinct cultural importance for the population in the Member State, in particular as a catalyst of cultural identity; (iii) involvement of the national team in the event concerned in the context of a competition or tournament of international importance; and (iv) the fact that the event has traditionally been broadcast on free television and has commanded large television audiences.
(6) A significant number of the events listed in the [United Kingdom] measures, including the summer and winter Olympic Games as well as the World Cup Finals and the European Championship Finals tournaments, fall within the category of events traditionally considered to be of major importance for society, as referred to explicitly in recital 18 of Directive [97/36]. These events have a special general resonance in the [United Kingdom] in their entirety, as they are particularly popular with the general public (irrespective of the nationality of the participants), not just with those who usually follow sports events.
…
(18) The listed events, including those to be considered as a whole and not as a series of individual events, have traditionally been broadcast on free television and have commanded large television audiences. …
(19) The [United Kingdom] measures appear proportionate so as to justify a derogation from the fundamental EC Treaty freedom to provide services on the basis of an over riding reason of public interest, which is to ensure wide public access to broadcasts of events of major importance for society.
(20) The [United Kingdom] measures are compatible with [the EC Treaty] competition rules in that the definition of qualified broadcasters for the broadcasting of listed events is based on objective criteria that allow actual and potential competition for the acquisition of the rights to broadcast these events. In addition, the number of listed events is not disproportionate so as to distort competition on the downstream free television and pay television markets.
(21) The proportionality of the [United Kingdom] measures is reinforced by the fact that a number of the events listed require adequate secondary coverage only.
…
(24) It follows from the judgment [in Infront WM
v Commission ] that the declaration that measures taken pursuant to Article 3a(1) of Directive [89/552] are compatible with Community law constitutes a decision, which must therefore be adopted by the Commission. Accordingly, it is necessary to declare by this Decision that the measures notified by the [United Kingdom] are compatible with Community law. The measures, as set out in the Annex to this Decision, should be published in the Official Journal of the European Union
in accordance with Article 3a(2) of Directive [89/552].’
Procedure and forms of order sought
19. By document lodged at the Registry of the Court on 6 February 2008, FIFA brought the present action.
20. By separate document, lodged at the Court Registry on 28 February 2008, FIFA asked the Court to invite the Commission, by way of measures of organisation of procedure, to produce a number of documents which, in its view, are essential in order for it to exercise its rights and for the purposes of the judicial review which the Court is called upon to conduct.
21. 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.
22. By documents lodged at the Court Registry on 11 and 16 June 2008, the United Kingdom and the Kingdom of Belgium applied for leave to intervene in the present proceedings in support of the form of order sought by the Commission.
23. By order of 14 August 2008, the President of the Seventh Chamber of the Court granted them leave to intervene. The interveners lodged their statements in intervention and FIFA lodged its observations on those statements within the prescribed time-limits.
24. By order of 15 December 2009, the present case was joined with Case T‑385/07 FIFA
v Commission
for the purposes of the oral procedure.
25. Acting on a report of the Judge-Rapporteur, the Court decided to open the oral procedure and, by way of measures of organisation of procedure, put one question to FIFA and two to the Commission. The Court’s questions were replied to within the prescribed time-limit.
26. FIFA claims that the Court should:
– annul the contested decision, in whole or in part, in so far as it concerns the World Cup;
– order the Commission, the Kingdom of Belgium and the United Kingdom to pay the costs.
27. The Commission contends that the Court should:
– dismiss the action;
– order FIFA to pay the costs.
28. The Kingdom of Belgium and the United Kingdom contend that the Court should dismiss the action.
Law
1. Admissibility
Arguments of the parties
29. The Kingdom of Belgium submits that the action is inadmissible on the grounds that the contested decision is not of direct or individual concern to FIFA and that the Court has no jurisdiction to rule on the lawfulness of national measures. Nor did FIFA bring any action against the national measures before the national courts, so that its action before the Court was brought out of time, as any annulment of the contested decision will not affect the validity of the national legislation at issue.
30. FIFA submits that the contested decision is challengeable and, moreover, is of direct and individual concern to it.
Findings of the Court
31. The grounds of inadmissibility put forward by the Kingdom of Belgium raise a matter of public policy, since they involve FIFA’s legal standing to bring proceedings, compliance with the time-limit and the Court’s jurisdiction. The Court should therefore examine those pleas of inadmissibility of its own motion, even though, under the fourth paragraph of Article 40 of the Statute of the Court of Justice and Article 116(3) of the Rules of Procedure of the General Court, the Kingdom of Belgium, as intervener, does not have standing to raise the issue as the Commission does not dispute the admissibility of the action (see, to that effect and by analogy, Case C‑313/90 CIRFS and Others v Commission
[1993] ECR I‑1125, paragraphs 21 to 23).
32. With respect to the issue whether FIFA is directly concerned, it must be borne in mind that, according to settled case-law, the condition that the decision must be of direct concern to a natural or legal person, as laid down in the fourth paragraph of Article 230 EC, requires the contested Community measure to affect directly the legal situation of the individual and leave no discretion to its addressees, who are entrusted with the task of implementing it, such implementation being purely automatic and resulting from Community rules without the application of other intermediate rules (see Case C‑125/06 P Commission
v Infront WM
[2008] ECR I‑1451, paragraph 47 and the case-law cited).
33. In that regard, under section 101 of the Broadcasting Act 1996 (see paragraph 11 above), no television broadcaster coming within one of the categories described in paragraph 10 above may broadcast, live and on an exclusive basis, an event included in the United Kingdom list. It is only if no broadcaster in the other category has shown any interest in acquiring the broadcast rights for that event and if the other conditions referred to in paragraph 13 above are fulfilled that the Office of Communications may give authorisation to a broadcaster having acquired the exclusive rights to broadcast the event in question live.
34. It follows from those rules that the sale of exclusive broadcasting rights for the World Cup, of which FIFA is the organiser within the meaning of recital 21 in the preamble to Directive 97/36, to television broadcasters under the jurisdiction of the United Kingdom in a manner which deprives other broadcasters coming under the jurisdiction of that same Member State which have manifested an interest in acquiring those rights of the possibility of broadcasting all or part of that event in that country does not produce the legal effects normally resulting from such an exclusivity clause.
35. Although, admittedly, those legal consequences arise from the United Kingdom legislation and not from the contested decision, the fact remains that the mechanism of mutual recognition triggered by the latter, in accordance with Article 3a(3) of Directive 89/552, creates an obligation for the Member States to safeguard those consequences. The Member States must, in particular, ensure that television broadcasters coming under their jurisdiction comply with the conditions which govern the broadcasting on United Kingdom television of the events included in its list, as defined by the United Kingdom in its measures which have been approved and published in the Official Journal of the European Union . The obligation to achieve that result has a direct adverse effect on the legal position of the television broadcasters under the jurisdiction of Member States other than the United Kingdom wishing to purchase broadcasting rights for the United Kingdom originally held by FIFA (see, to that effect, Commission
v Infront WM, paragraph 32 above, paragraphs 62 and 63).
36. Therefore, the mechanism of mutual recognition triggered by the contested decision obliges the Member States to preclude the exercise of rights such as those described in paragraph 34 above by television broadcasters under their jurisdiction, with the result that the rights originally held by FIFA are also affected when they are offered publicly to broadcasters not under the United Kingdom’s jurisdiction, but rather that of another Member State.
37. It follows that the contested decision directly affects FIFA’s legal position in respect of the rights originally held by it and does not leave any discretion to the Member States as to the result to be obtained, which is imposed automatically and results from the Community rules alone, irrespective of the content of the specific mechanisms which the national authorities put in place to attain that result (see, to that effect, Commission
v Infront WM, paragraph 32 above, paragraphs 60 and 61).
38. The contested decision is therefore of direct concern to FIFA.
39. Regarding the question whether FIFA is individually concerned by the contested decision, it should be remembered that persons other than those to whom a decision is addressed may claim to be individually concerned only if that decision affects them by reason of certain attributes which are peculiar to them or by reason of circumstances in which they are differentiated from all other persons and by virtue of these factors distinguishes them individually just as in the case of the person addressed by such a decision (see Commission
v Infront WM, paragraph 32 above, paragraph 70 and the case-law cited).
40. In the present case, it is not disputed that, irrespective of the legal nature and source of the broadcasting rights for the World Cup, it is an event for the purposes of recital 21 in the preamble to Directive 97/36 in that it is organised in advance by an organiser legally empowered to sell those rights and that FIFA is the organiser in question. Since that situation also held true at the time of adoption of the contested decision, FIFA was perfectly identifiable at that time.
41. The contested decision, moreover, mentions FIFA by name when it refers, in its Annex, to ‘[t]he FIFA World Cup Finals Tournament’.
42. The contested decision is therefore of individual concern to FIFA.
43. With respect to the Kingdom of Belgium’s argument that the Court has no jurisdiction to rule on the lawfulness of national measures under Article 230 EC and that FIFA did not challenge the United Kingdom measures before the national courts, suffice it to state that, by its action, FIFA is challenging, inter alia, the lawfulness of Article 1 of the contested decision, according to which the measures in question are compatible with Community law.
44. It follows that the review which the Court is being asked to conduct in the present case relates to the lawfulness of that finding, so that the failure to challenge the United Kingdom measures before the national courts does not affect, in one way or other, the admissibility of the action, which, moreover, was lodged within the time-limit laid down in Article 230 EC (see, to that effect, Case T‑33/01 Infront WM
v Commission, paragraph 15 above, paragraph 109).
45. The arguments alleging inadmissibility of the action put forward by the Kingdom of Belgium must, accordingly, be rejected.
2. Substance
46. FIFA puts forward six pleas in law: first, failure to state reasons; secondly, infringement of Article 3a(1) of Directive 89/552; thirdly, infringement of FIFA’s right to property; fourthly, infringement of the Treaty provisions on the freedom to provide services; fifthly, infringement of the Treaty provisions on competition; and, sixthly, infringement of the Treaty provisions on freedom of establishment.
47. 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.
48. 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.
49. Even if measures adopted by Member States pursuant to Article 3a(1) of Directive 89/552 apply in a non-discriminatory manner both to undertakings established in their national territory and to undertakings established in other Member States, it is sufficient that those measures benefit certain undertakings established in that national territory in order to be considered a restriction on freedom to provide services within the meaning of Article 49 EC (see, to that effect, Case C‑398/95 SETTG
[1997] ECR I‑3091, paragraph 16, and Case C‑250/06 United Pan-Europe Communications Belgium and Others
[2007] ECR I‑11135, paragraphs 37 and 38). Similarly, those measures may impede freedom of establishment when they are liable to place companies from other Member States in a less favourable factual or legal situation than companies from the Member State which adopted them (see, to that effect, Case C‑255/97 Pfeiffer
[1999] ECR I‑2835, paragraph 19).
50. Such restrictions on the fundamental freedoms guaranteed by the Treaty may yet be justified, provided they serve overriding reasons in the public interest, are appropriate for attaining the objective which they pursue and do not go beyond what is necessary in order to attain it (see, to that effect, Pfeiffer, paragraph 49 above, paragraph 19, and United Pan-Europe Communications Belgium and Others, paragraph 49 above, paragraph 39 and the case-law cited).
51. In that regard, it must be borne in mind that freedom of expression, as protected by Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed at Rome on 4 November 1950 (‘the ECHR’), is one of the fundamental rights guaranteed by the Community legal order and is an overriding reason in the public interest which is capable of justifying such restrictions (see, to that effect, United Pan-Europe Communications Belgium and Others, paragraph 49 above, paragraph 41 and the case-law cited). Moreover, under Article 10(1) of the ECHR, freedom of expression also includes the freedom to receive information.
52. In the present case, as noted in recital 19 of the contested decision, the measures adopted by the United Kingdom are obstacles to freedom to provide services. However, as is apparent from recital 18 in the preamble to Directive 97/36, the measures contemplated in Article 3a of Directive 89/552 are intended to protect the right to information and to ensure wide public access to television broadcasts of national or non-national events of major importance for society. Recital 21 in the preamble to Directive 97/36 states that an event is of major importance when it is outstanding, is of interest to the general public in the European Union or in a given Member State or in an important component part of a given Member State, and is organised in advance by an event organiser who is entitled to sell the rights pertaining to that event.
53. It follows that, since they relate to events which are of major importance for society, the measures contemplated in Article 3a(1) of Directive 89/552 are justified by overriding reasons in the public interest, a point which FIFA does not dispute.
54. Next, as noted in paragraph 50 above, the measures in question must still be appropriate for attaining the objective which they pursue and not go beyond what is necessary in order to attain it.
55. 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.
56. It follows that, as pointed out moreover by the Commission, reci tal 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.
57. On the other hand, in the light of the findings set out in paragraphs 48 to 53 above, that recital implies that, when a Member State includes World Cup matches in the list it has decided to draw up, it does not need to include in its notification to the Commission specific grounds concerning their nature as an event of major importance for society.
58. It is in the light of those considerations that the merits of the pleas put forward by FIFA fall to be examined.
The first plea: failure to state reasons
Arguments of the parties
59. In FIFA’s submission, the Commission gives no reasons in the contested decision to justify the inclusion of all 64 World Cup matches on the United Kingdom list. While it is true that the World Cup is mentioned in recital 18 of the preamble to Directive 97/36 as an example of an event of major importance, that does not mean that all the matches in the World Cup may automatically be considered to be of such importance or that they must be given unlimited public access. Furthermore, there is nothing leading to the conclusion that that recital refers to the World Cup in its entirety. FIFA states in that regard that a division of the World Cup matches into, on the one hand, ‘prime’ matches, including the semi-finals, the final and the matches involving the relevant national team, in this case United Kingdom teams, and liable to be categorised as events of major importance for United Kingdom society and, on the other, ‘non-prime’ matches, including all other matches, not necessarily liable to be categorised as such, is warranted and corresponds to the approach adopted by other Member States which have notified their measures pursuant to Article 3a(2) of Directive 89/552. The Commission itself recognised such a categorisation of matches in its working document CC TVSF(97) on the application of Article 3a of Directive 89/552.
60. By considering that its review of the national choices of events of major importance is purely marginal and therefore virtually redundant, the Commission disregarded its obligation to conduct a detailed review of the compatibility of the United Kingdom measures with Community law, which led it to fail to provide an adequate statement of reasons for approving the inclusion of all World Cup matches as being of major importance for United Kingdom society.
61. FIFA adds that the United Kingdom authorities did not take account of viewing figures relating to the 1998 World Cup for the purpose of their decision of 25 June 1998 (see paragraph 7 above), as that tournament ended on 12 July 1998, although the Commission did use that data for the purpose of adopting the decision of 28 July 2000. Nor did those authorities take those viewing figures into account before re-notifying their list to the Commission on 5 May 2000 (see paragraph 14 above).
62. Since all World Cup matches were included in the list in the decision of 25 June 1998 (see paragraph 7 above), despite the recommendations of the Advisory Group on listed events (see paragraph 9 above) and against the advice of officials of the Ministry of Culture, Media and Sports and of the Director-General of the Office of Fair Trading, as well as the initial position of the Ministry recommending the inclusion of only ‘prime’ matches, the Commission ought to have provided very strong grounds to justify the inclusion of all matches on the United Kingdom list. Furthermore, the Commission ought to have obtained information about viewing figures for the 1998, 2002 and 2006 World Cup tournaments, instead of reiterating, unaltered, the decision adopted seven years previously, in July 2000. FIFA observes in that regard that the Commission itself states that it took account of 1998 World Cup viewing figures when adopting its decision of 28 July 2000, even though they were not available when the United Kingdom adopted its list on 25 June 1998, which confirms that the most recent figures should have been taken into account for the purpose of adopting the contested decision. FIFA adds that, in Infront WM
v Commission, paragraph 15 above, this Court did not take a position on any grounds of annulment other than that alleging infringement of a procedural requirement, on the basis of which it annulled the decision of 28 July 2000.
63. FIFA states that correspondence was exchanged between the Commission and the United Kingdom authorities between August 2006 and February 2007. It states that administrative proceedings were initiated with a view to obtaining the documents concerned, at both Community and national level, but that it has never succeeded in having access to the documents in question. FIFA asserts that the Commission ought to have disclosed in the contested decision all facts relevant to its assessment of the compatibility of the United Kingdom measures with Community law, in particular viewing figures relating to the World Cups of 1998, 2002 and 2006, as well as the content of that correspondence, since it relied on the correspondence for the purposes of adopting the contested decision.
64. Lastly, FIFA submits that the statement of reasons in the contested decision cannot be completed in the present proceedings, with the result that any grounds relied on for the first time before this Court, such as those put forward by the Commission in its statement in defence, cannot be taken into account for that purpose, whatever their probative value may be from a substantive viewpoint.
65. It follows from the foregoing that, in respect of the finding that all World Cup matches, rather than just ‘prime’ matches, are events of major importance for United Kingdom society, the Commission disregarded its obligation to provide a statement of reasons, contrary to Article 253 EC.
66. The Commission, supported by the interveners, disputes the merits of this plea.
Findings of the Court
67. 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).
68. FIFA complains that the Commission failed to provide a specific statement of reasons for finding that all of the World Cup matches, rather than only the ‘prime’ matches, fell to be considered as being of major importance for United Kingdom society. It should also be noted that, in its written response to the question asked by the Court by way of measures of organisation of procedure (see paragraph 25 above), FIFA explicitly confirmed what was indirectly evident from a number of points in its written pleadings, namely that it considers the inclusion of the ‘prime’ World Cup matches in a national list to be compatible with Community law, provided that the requirements of a clear and transparent procedure are also satisfied.
69. Moreover, although, admittedly, no position is adopted in recital 18 in the preamble to Directive 97/36 on the crucial question of whether all or some of the World Cup matches should be included in a national list of events of major importance for society, there is no valid consideration leading to the conclusion that, in principle, only ‘prime’ matches may be thus categorised and therefore included in such a list.
70.
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.
71. Given that specific context which enables the World Cup to be regarded as a single event, as observed in recital 18 of the contested decision, the Commission did not have to provide more detailed reasons for its appraisal in respect of ‘non-prime’ matches, especially when the relevant statistics do not show that those matches regularly attract a negligible number of television viewers (see paragraphs 122 to 129 below). Those circumstances allowed the Commission to provide reasons for its decision by reference also to the special general resonance that the World Cup has in the United Kingdom, in that it is a particularly popular event for the general public and not only for football fans, as observed in recital 6 of the contested decision.
72. It follows that the reasoning contained in recitals 6 and 18 of the contested decision (see paragraph 18 above) allows FIFA to identify the reasons why the Commission took the view that all World Cup matches could legitimately be included in the list of events of major importance for United Kingdom society and the Court to conduct its review of the merits of that appraisal, with the result that the contested decision does fulfil the requirements of Article 253 EC in that regard.
73. That finding is not affected by the fact that, during the procedure which led to the adoption of the list of events of major importance for United Kingdom society, certain bodies had proposed including only ‘prime’ matches on that list. Given that the importance of the ‘non-prime’ matches justifies categorising the entire World Cup as an event of major importance for society, the fact that certain officials or advisory bodies, in the course of their duties, suggested to the Secretary of State that only ‘prime’ matches be included in the list does not give rise to an obligation for the Commission to explain why the Secretary of State did not err in adopting a different but equally legitimate position.
74. The same holds true for the arguments concerning the fact that correspondence was exchanged between the Commission and the United Kingdom authorities, a point not referred to in the contested decision. Since the statement of reasons in the contested decision is sufficient, the Commission cannot be criticised for failing to include more information in it. Moreover, the question whether other evidence shows that ‘non-prime’ matches are not, in fact, of major importance for United Kingdom society goes to the lawfulness of the merits of the contested decision and will be examined under the consideration of the second plea (see paragraphs 118 to 129 below).
75. Regarding the argument that the viewing figures for the 1998 World Cup were not available on 25 June 1998, the date when the United Kingdom list was adopted (see paragraph 7 above) but that the Commission did base itself on those figures, it is clear that there is nothing pre§venting a Member State from submitting to the Commission evidence relating to a period subsequent to the date of adoption of the list of events of major importance for its society, or the Commission from taking account of that evidence. Such evidence may, moreover, lead the Commission to ask the Member State in question to amend its measures in order to make them compatible with Community law, on the basis of data which is as up to date as possible. That interpretation is supported by the fact that Article 3a(2) of Directive 89/552 invites Member States to submit their measures to the Commission even before their adoption.
76. Therefore, the Commission did not have to explain specifically in the contested decision why it chose to take account of evidence which did not exist at the time the list of events of major importance for United Kingdom society was drawn up.
77. The first plea in law must accordingly be rejected.
The second plea: infringement of Article 3a(1) of Directive 89/552
78. This plea is divided into two parts: the first alleges that the United Kingdom measures were not adopted under a clear and transparent procedure, whilst the second alleges that ‘non-prime’ matches are not of major importance for United Kingdom society.
The procedure followed by the United Kingdom authorities
– Arguments of the parties
79. FIFA submits that the inclusion of all World Cup matches in the list of events of major importance for United Kingdom society is incomprehensible and was characterised by a great lack of clarity. FIFA observes in that regard that the Secretary of State did not follow the unanimous advice which he received from competent Ministry officials, the Advisory Group on listed events and the Director-General of the Office of Fair Trading, or the initial Ministry position, and that the reasons for that choice were never disclosed. The failure to disclose the reasons which led the Secretary of State to depart from those independent recommendations is inconsistent with the requirements of clarity and transparency which are to govern the procedure in question. Moreover, in a document dated 23 September 1999, the United Kingdom authorities falsely stated that the viewing figures relating to the 1998 World Cup had been taken into account for the adoption of the decision of 25 June 1998 (see paragraph 61 above), which the Commission could have easily realised was not the case.
80. Furthermore, the viewing figures for the 1994 World Cup also contained a significant mathematical error. In any event, neither the viewing figures for the 1998 World Cup nor those relating to the 1994 World Cup justified the inclusion of all World Cup matches on the United Kingdom list. The renotification of the list on 5 May 2000 (see paragraph 14 above) does not affect the situation described above, since the 1998 figures were not reconsidered before the list was renotified.
81. Since, first, the reasons underlying the inclusion of all the matches in the list of events of major importance for United Kingdom society were clearly not the same as those notified to the Commission by the United Kingdom authorities and since, second, the reasons for inclusion were not disclosed, the only reasonable conclusion the Commission could reach was that the national procedure did not satisfy the requirements of clarity and transparency laid down in Article 3a(1) of Directive 89/552. In those circumstances, the Commission erred in finding that that procedure had been clear and transparent. This complaint is not directed at the validity of the national procedure as such, but rather at the lawfulness of the Commission’s assessment in that regard.
82. Lastly, FIFA states that its submissions are not affected by the establishment of a consultation procedure by the Secretary of State concerning the criteria in the light of which the importance of various events for United Kingdom society was to be assessed, as it is not challenging the relevance of those criteria.
83. The Commission, supported by the interveners, disputes the merits of FIFA’s assertions.
– Findings of the Court
84. 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.
85. Restrictions on the exercise of the fundamental freedoms guaranteed by the Treaty through national measures justified by overriding reasons in the public interest must still be appropriate for attaining the objective which they pursue and not go beyond what is necessary in order to attain that objective (see paragraph 50 above).
86. Thus, even where national legislation, such as that referred to in Article 3a(1) of Directive 89/552, has as its object the safeguarding of the freedom of expression (see paragraphs 51 to 53 above), the requirements imposed under measures designed to implement such a policy must in no case be disproportionate in relation to that aim and the manner in which they are applied must not bring about discrimination against nationals of other Member States (see, to that effect, Case C‑379/87 Groener
[1989] ECR 3967, paragraph 19, and Case C‑112/00 Schmidberger
[2003] ECR I‑5659, paragraph 82).
87. It is in that context that the procedures put in place by the Member States for adopting the list of events of major importance for society must be clear and transparent, in the sense that they must be based on objective criteria which are known in advance by the parties concerned, so as to prevent the Member States’ discretion for deciding on the specific events to include in their lists from being exercised in an arbitrary manner (see, to that effect, United Pan-Europe Communications Belgium and Others, paragraph 49 above, paragraph 46). Although it is true that, under Article 3a of Directive 89/552, in order for an event to be included in the list it must be of major importance for society, the fact remains that the prior establishment of specific criteria used to assess that importance is an essential factor in order for national decisions to be adopted in a transparent manner and within the parameters of the discretion which the national authorities have in that regard (see paragraph 112 below).
88. The requirement of clarity and transparency of the procedure also implies that the relevant provisions indicate the body which is responsible for drawing up the list of events and the conditions in which interested parties may submit their observations.
89. However, the mere presence of evidence aimed at invalidating the assessment of a national authority as to the importance of a specific event for society does not go to the clarity or transparency of the procedure followed, but rather to the merits of that assessment. The same is true when that evidence consists in opinions or observations set out by advisory bodies or services coming under the competent authority.
90. In the present case, it should be observed, first, that FIFA is challenging the clarity and transparency of the procedure established by the United Kingdom in so far as it included all World Cup matches in the list, as opposed to the ‘prime’ matches.
91. Next, it is clear that the complaints put forward by FIFA are not suitable for calling in question the Commission’s assessment as to the clarity or transparency of the procedure followed by the Secretary of State for the purposes of adopting the list of events of major importance for United Kingdom society (see paragraphs 7 to 9 above). Contrary to FIFA’s submissions, the requirement of clarity and transparency laid down in Article 3a of Directive 89/552 does not have either as its object or its effect to oblige the competent national authority to set out the reasons why it did not follow the opinions or observations put forward to it during the consultation procedure.
92. That conclusion is all the more compelling in relation to the World Cup, which is referred to in recital 18 in the preamble to Directive 97/36 and may reasonably be regarded as a single event rather than as a series of individual events divided up into ‘prime’ matches and ‘non-prime’ matches (see paragraph 70 above).
93. In those circumstances, if an interested party takes the view that the opinions put forward during the consultation procedure or even a position expressed by the services coming under the competent authority contain aspects which invalidate the final assessment of that authority as to the importance of the event in question for society, it may, first, challenge the assessment in question before the national courts and, second, challenge before the General Court the merits of any decision by the Commission endorsing that assessment, as FIFA has, moreover, done with the second part of this plea.
94. Regarding the arguments put forward concerning the viewing figures taken into account by the United Kingdom authorities, they, too, call into question the Commission’s assessment of the merits of the Secretary of State’s position on the importance of ‘non-prime’ matches for United Kingdom society. Thus, they do not concern, either, the question whether the procedure established by the United Kingdom authorities was clear and transparent.
95. The argument alleging that the viewing figures for the 1998 World Cup were not available on 25 June 1998, the date of adoption of the United Kingdom list (see paragraph 7 above), whilst the Commission based itself on those figures, must be rejected for the reasons set out in paragraph 75 above.
96. FIFA’s arguments do not, therefore, establish that the Commission erred in finding that the procedure established by the United Kingdom for including the World Cup in the list of events of major importance for United Kingdom society was clear and transparent.
97. The first part of the second plea must accordingly be rejected.
The importance of ‘non-prime’ matches for United Kingdom society
– Arguments of the parties
98. FIFA submits, in support of this plea, first, that ‘non-prime’ matches have a special resonance only with football fans and, second, that those matches have not traditionally been broadcast by free television channels, nor have they drawn large audiences. It follows that ‘non-prime’ matches do not satisfy the two criteria applied by the Commission in recitals 6 and 18 of the contested decision, with the result that the Commission erred in that regard.
99. In FIFA’s submission, it cannot legitimately be argued that all World Cup matches are events of major importance for United Kingdom society, that is, outstanding events which are of interest to the general public as contemplated in recital 21 in the preamble to Directive 97/36.
100. FIFA argues in that regard that while Member States are indeed free to choose the events which they consider to be of major importance for society, the Commission is required to review in detail the lawfulness of that choice under Community law. Thus, the Member States’ discretion does not allow for arbitrariness and is neither unbridled nor unfettered, and the Member States’ views are neither overriding nor preponderant, nor, a fortiori, incontestable.
101. In the present case, the surveys carried out confirm that persons who do not ordinarily follow football have only a very limited interest in ‘non-prime’ matches. FIFA adds that it is challenging not the legislator’s choice to draw up rules such as those laid down in Article 3a of Directive 89/552 concerning events of major importance for society, but the scope attributed to that concept by the Commission in the contested decision. FIFA states that ‘prime’ matches may legitimately be considered to be of major importance for society within the meaning of that provision, which is moreover consistent with its own policy, under which the semi-finals and the final, and also in matches played by the relevant national team and the opening match of the World Cup must be broadcast live on a free channel.
102. It follows from a survey based on information from the Broadcast Audience Research Board that the average number of non-fans who watched at least 30 consecutive minutes of all ‘non-prime matches’ in the 2006 World Cup represented a mere 2.8% of the total viewing audience, as compared with 14.7% of non-fans who watched at least 30 consecutive minutes of all ‘prime matches’, with the figure being 18.5% for the final, 7.1% for the semi-final and 17% for matches involving the England national team.
103. With respect to the information provided by the United Kingdom to the Commission, FIFA states that the data relating to the 1998 World Cup was not available on 25 June 1998, the date on which the list of events of major importance for United Kingdom society was established (see paragraph 7 above), whereas the document of 23 September 1999 (see paragraph 79 above) referred to an average number of 8.59 million viewers who watched matches in that competition. Apart from the fact that that figure is an overestimate – the correct figure being 6.518 million viewers – it gives no indication as to the importance of ‘non-prime’ matches for the general public in the United Kingdom. In fact not only does that figure take account of ‘prime’ matches, it also makes no distinction between fans and non-fans of football, the latter nevertheless choosing to watch a World Cup match because they perceive it to be of major importance for society. Moreover, the results of the survey referred to in paragraph 102 above show that, apart from football fans, the general public does not have any particular interest in ‘non-prime’ matches, with the result that those matches do not have any resonance with the general public. These conclusions are consistent with the Commission’s decision-making practice. The Commission therefore erred in finding that ‘non-prime’ matches are of major importance for non-fans of football.
104. The Commission also erred in finding that all World Cup matches have traditionally been broadcast live on free television, as 16, 8 and 8 matches of the 1994, 1998 and 2002 World Cups respectively were not, even though, in some cases, they were not being played at the same time as another match. Moreover, eight ‘non-prime’ matches in the 2006 World Cup were broadcast by broadcasters in the second category under section 98 of the Broadcasting Act 1996 (see paragraph 10 above). In addition, the approach taken for the 1994, 1998 and 2002 World Cups was not to broadcast a match if it took place at the same time as another match.
105. The viewing figures for the 1994, 1998, 2002 and 2006 World Cups, which were available at the time of adoption of the contested decision, show that ‘non-prime’ matches draw a fraction of the number of viewers who watch the ‘prime’ matches. Furthermore, contrary to the Commission’s assertion, the viewing figures for ‘non-prime’ matches for the 1994 and 1998 World Cups cannot in any way be regarded as being exceptionally high by reference to the population of the United Kingdom and the viewing figures for ‘prime’ matches.
106. Nine World Cup matches in 1994 and 23 World Cup matches in 2002 which were broadcast live drew fewer than 3 million viewers, whilst 12 World Cup matches in 1998 which were broadcast live drew fewer than 5 million viewers; five ‘non-prime’ World Cup matches in 2006 drew between 65 000 and 96 000 viewers.
107. Accordingly, the two criteria applied by the Commission in finding that ‘non-prime’ World Cup matches are of major importance for United Kingdom society, that is, that they have a special resonance there and have always been broadcast by free television channels and have drawn large audiences, are in fact not met.
108. Nor, in FIFA’s submission, can it be argued that ‘non-prime’ matches are of major importance for United Kingdom society when the United Kingdom legislation does not require television broadcasters to broadcast them, whilst such obligations do exist in respect of other events. FIFA’s reply to the Commission’s argument that it is impossible to broadcast two World Cup matches being played simultaneously on the same channel is that, if the matches in question were genuinely events of major importance for society, a broadcaster could broadcast them simultaneously on two different channels owned by it (such as BBC 1 and BBC 2) or grant a sub-licence to another broadcaster. As for the Commission’s argument that the figures relied on by FIFA do not take account of the day or time at which a match was broadcast, FIFA claims that those factors do not significantly impact on viewing figures and refers to many examples of World Cup matches between 1994 and 2006 in support of its argument.
109. FIFA adds that, since an event which is considered to be of major importance for one society may not necessarily be so for another, the Commission’s argument that the reference to the World Cup in recital 18 in the preamble to Directive 97/36 refers to all World Cup matches is indefensible. Furthermore, it is illogical to consider the World Cup to be an indivisible event, when it is organised in a number of stages and when the United Kingdom list treats other events consisting of different matches, including the Cricket World Cup, as divisible events. In addition, Member States other than the United Kingdom and the Kingdom of Belgium have drawn up lists which include only certain ‘prime’ World Cup matches and which the Commission approved, which proves that the World Cup need not necessarily be considered to be an indivisible event.
110. FIFA states that if, contrary to the arguments which it puts forward, Article 3a(1) of the directive is to be interpreted as meaning that the entire World Cup must be considered an event of major importance for society, on account of the terms of recital 18 of the preamble to Directive 97/36, then a plea pursuant to Article 241 EC must be deemed to have been raised implicitly against that provision in its application or, in any event, in its reply. Under that plea, FIFA relies on all the arguments showing, in its submission, that there is nothing to justify considering the World Cup as a whole as a single event of major importance for society.
111. The Commission, supported by the interveners, disputes the merits of this part of the second plea and states that FIFA did not validly raise a plea against Directive 97/36 pursuant to Article 241 EC.
– Findings of the Court
112. 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.
113. Secondly, even though Article 3a of Directive 89/552 does not effect a harmonisation of specific events which a Member State may consider to be of major importance for its society (see paragraphs 55 and 56 above), the reference to the World Cup in recital 18 in the preamble to Directive 97/36 means that the Commission cannot consider the inclusion of World Cup matches in a list of events to be contrary to Community law on the ground that the Member State concerned did not notify it of the specific reasons justifying their being an event of major importance for society (see paragraph 57 above). However, any finding by the Commission that the inclusion of the entire World Cup in a list of events of major importance for the society of a Member State is compatible with Community law, on the ground that the World Cup is, by its nature, legitimately regarded as a single event, may be called into question on the basis of specific factors showing that the ‘non-prime’ matches are not of such importance for the society of that Member State.
114. As stated in paragraphs 55 and 56 above, neither recital 18 in the preamble to Directive 97/36 nor Article 3a of Directive 89/552 addresses the question of whether the World Cup in its entirety may legitimately be included in a list of events of major importance for society irrespective of the interest in the matches, particularly ‘non-prime’ matches, in the Member State concerned.
115. Consequently, any discussion of the lawfulness of Directive 97/36 in relation to categorisation of the World Cup in its entirety as an event of major importance for society, rather than only the ‘prime’ matches of the tournament (see paragraph 110 above), is purposeless, since recital 18 in the preamble thereto does not address that question. It is therefore unnecessary to rule on the question whether FIFA could legitimately put forward a plea in that regard pursuant to Article 241 EC in its reply or whether such a plea must be regarded as having been put forward implicitly in the application.
116. Third, as explained in paragraphs 69 and 70 above, the World Cup may reasonably be regarded as a single event rather than as a series of individual events divided into ‘prime’ matches and ‘non-prime’ matches, with the result that the Secretary of State’s approach is not arbitrary but falls within the limits of his discretion.
117. 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.
118. It follows that, in not questioning the view that it is not appropriate to distinguish between ‘prime’ and ‘non-prime’ matches for the purpose of determining the importance of the World Cup for United Kingdom society and that the World Cup should be considered in its entirety and not as a series of individual events (recitals 6 and 18 of the contested decision, see paragraph 18 above), the Commission did not make any error.
119. The arguments put forward by FIFA in that regard within the framework of the present plea do not affect the findings in recitals 6 and 18 of the contested decision.
120. The fact that the only 2.8% of non-fans of football watched 30 consecutive minutes of all ‘non-prime’ World Cup matches in 2006 (see paragraph 102 above) is not conclusive, since not all ‘non-prime’ matches must necessarily be of major importance for United Kingdom society in order for the World Cup to be legitimately included, in its entirety, on the United Kingdom list of such events. On the contrary, it is sufficient that the characteristic described in paragraph 70 above concerns certain of the ‘non-prime’ matches, the number of and participants in which cannot be specified at the time the list is drawn up or the broadcasting rights acquired, in order to justify not distinguishing between ‘prime’ and ‘non-prime’ matches as regards their importance for society. It follows that the criterion employed for the purposes of the surveys carried out in the context of that study was overly restrictive and, accordingly, unsuited to both the structure of the World Cup and the specific features that that tournament must have in order to be able to be categorised as a whole as an event of major importance for society.
121. This finding also invalidates FIFA’s argument to the effect that certain ‘non-prime’ World Cup matches in 1994, 1998 and 2002 were not broadcast live or were broadcast by broadcasters coming in the second category under section 98 of the Broadcasting Act 1996 (see paragraph 10 above). Moreover, contrary to FIFA’s submissions, recital 18 of the contested decision (see paragraph 18 above) does not refer to matches which have always been broadcast live, but to matches which have always been broadcast by free television channels, which corresponds to the fourth criterion in recital 5 of the decision.
122. Nor can the arguments based on viewing figures for ‘non-prime’ World Cup matches in 1994, 1998, 2002 and 2006 (see paragraph 105 above) succeed.
123. It should be emphasised in that regard that, contrary to FIFA’s submissions, the viewing figures for ‘non-prime’ matches as compared to ‘prime’ matches do not show that ‘non-prime’ matches failed to attract large audiences. According to statistics provided by FIFA, ‘non-prime’ matches drew an average of 60% of the viewers who watched ‘prime’ World Cup matches in 1994, the percentages being 43%, 30% and 33% respectively for the World Cups of 1998, 2002 and 2006. Although, admittedly, those figures are lower than those for ‘prime’ matches, the fact remains that the inclusion of ‘non-prime’ matches in the national list of events of major importance for society does not require that they draw the same number of viewers as ‘prime’ matches. In the present case, those figures cannot be taken as representative of the number of viewers that would normally have been drawn, in the United Kingdom, by matches not taking place in the context of a major international football competition involving national teams and which, in addition, do not involve a United Kingdom national team.
124. These assessments are confirmed by various points in a memorandum from the United Kingdom to the Commission dated 24 March 1999, the content of which is found in a document entitled ‘Draft reply to European Commission’s letter of 23 December 1998’, annexed to the application. Annex E to that document contains an analysis of the viewing figures relating to the 1998 World Cup. That analysis shows that the ‘non-prime’ match between the Netherlands and Yugoslavia, the outcome of which would determine England’s opponent if it beat Argentina, drew roughly 10.55 million viewers, which was stated as 10.605 million in another document entitled ‘Viewer data for 1994-2006 FIFA World Cup matches’, annexed to the application (‘analytical viewing data’). At the same time, ‘non-prime’ matches between Brazil and Chile, on the one hand, and Nigeria and Denmark, on the other, drew 10.63 and 10.32 million viewers respectively. These figures are consistent with the analytical viewing data, even though neither of those matches had any bearing on the progress of a United Kingdom national team. In addition, according to those two documents, the Cameroon national team drew an average of approximately 9.18 million viewers for the two matches broadcast live in the 1998 World Cup, against Austria and Italy respectively, whilst the matches between the United States of America and Spain and Iran and Bulgaria drew 7.94 and 7.91 million viewers respectively. Lastly, according to those two documents, the Jamaica national team drew on average 7.89 million viewers for two matches against Croatia and Argentina respectively, the first drawing 10.234 million viewers.
125. The same memorandum from the United Kingdom authorities further states that the final of the 1998 Football Association (FA) Cup drew 7.81 million viewers, which shows the importance that ‘non-prime’ matches take on in the World Cup, given the viewing figures set out in the preceding paragraph.
126. It should be observed in that regard that, according to the analytical viewing data, of the ‘non-prime’ 1994 World Cup matches, 16 drew between 7.196 and 11.625 million viewers, whereas eight drew between 5.669 and 6.926 million viewers. The same document states that, for the 1998 World Cup, of the ‘non-prime’ matches, 21 drew between 7.161 and 10.632 million viewers and 13 drew between 5.254 and 6.761 million viewers. In the 2002 World Cup, the analytical viewing data indicate that 24 ‘non-prime’ matches drew between 3.073 and 5.317 million viewers. In the 2006 World Cup, the analytical viewing data indicate that 11 ‘non-prime’ matches drew between 7.058 and 9.645 million viewers, whilst 15 matches in the same category drew between 5 and 6.692 million viewers.
127. Viewed both in absolute terms and in relation to the viewing figures for the 1998 FA Cup final, those figures show that, in the United Kingdom, ‘non-prime’ matches command exceptionally large audiences, which can only be explained by the fact that those matches are included in the World Cup fixture list. Those viewing figures thus confirm the findings in paragraphs 69, 70 and 117 above and support the position set out in recital 18 of the contested decision to the effect that World Cup matches, including ‘non-prime’ matches, have traditionally drawn large numbers of viewers.
128. That analysis is not called into question by the allegedly particularly low viewing figures relied on by FIFA in respect of certain ‘non-prime’ matches (see paragraph 106 above). All nine 1994 World Cup matches which were broadcast live and drew fewer than 3 million viewers began at 0.30 hrs GMT, as the competition was taking place in the United States. Similarly, the time difference explains the viewing figures observed for certain matches of the 2002 World Cup, which took place in South Korea and Japan. Thus, of the 23 ‘non-prime’ matches relied on by FIFA which drew fewer than 3 million viewers, 14 began between 6.15 hrs and 7.15 hrs GMT and nine of them between 8.25 hrs and 12.15 hrs. The fact that the time difference, combined with the time at which the matches in question were played, is the reason behind that phenomenon observed for the 1994 and 2002 competitions is substantiated by the much higher viewing figures for ‘non-prime’ matches broadcast neither too early in the morning nor during working hours, like those referred to in paragraph 126 above. Moreover, according to a press release annexed to the rejoinder in Case T-385/07, to which the present case was joined for the purposes of the oral procedure (see paragraph 24 above), FIFA itself affirms the importance of the time difference, which determines the time of a match in each country, as this is recognised as being a factor which affected the size of the audiences in Asia and in Europe during the World Cups in 2002 and 2006.
129. As regards the 2002 World Cup, all 12 ‘non-prime’ matches relied on by FIFA were broadcast between 13.30 hrs and 16.30 hrs GMT, that is, during working hours. For the five ‘non-prime’ matches of the 2006 World Cup, for which viewing figures were indeed very low, it should be noted that the match between Paraguay and Trinidad & Tobago was played at the same time as the match between England and Sweden, which drew 18.464 million viewers. The match between Costa Rica and Poland began at 14.28 hrs and was played at the same time as the match between Ecuador and Germany, which was watched by 2.725 million viewers. The match between Iran and Angola began at 14.30 hrs and was played at the same time as the match between Portugal and Mexico, which was watched by 2.301 million viewers. The match between the Ivory Coast and Serbia-Montenegro was played at the same time as the match between the Netherlands and Argentina, which drew 8.740 million viewers, whilst the match between the Ukraine and Tunisia began at 15.00 hrs and was played at the same time as the match between Saudi Arabia and Spain, which was watched by 1.872 million viewers. Those facts are objective reasons which explain why the viewing figures for those ‘non-prime’ matches diverge from the figures usually recorded (see paragraph 126 above).
130. Accordingly, the viewing figures relating to ‘non-prime’ matches confirm rather than invalidate the finding in paragraph 118 above.
131. Moreover, the finding in paragraph 127 above does not conflict with the one set out in recital 40 of Commission Decision 2000/400/EC of 10 May 2000 relating to a proceeding pursuant to Article 81 [EC] (Case No IV/32.150 – Eurovision, OJ 2000 L 151, p. 18), referred to by FIFA (see paragraph 103 above). That recital states that international events tend to be more attractive for the audience in a given country than national ones, provided the national team or a national champion is involved, while international events in which no national champion or team is participating can often be of little interest. The World Cup often involves a United Kingdom national team and, even when it does not, the absence of a United Kingdom national team is usually established after the list of events of major importance for United Kingdom society has been drawn up, and also after the television broadcasting rights have been sold for the relevant year.
132. As regards the argument based on the absence of an obligation to broadcast ‘non-prime’ matches (see paragraph 108 above), suffice it to state that the choice not to require a television broadcaster to broadcast an event does not in any way imply that that event is not of major importance for society within the meaning of Article 3a of Directive 89/552, even where the establishment of such obligations forms part of the national legislature’s general practice. Article 3a is intended, in compliance with the principle of proportionality, to prevent a situation where the general public in a Member State is not able, due to exclusive television broadcasting, to follow certain events on free television. Its purpose is thus not to force indirectly States wishing to provide for such protection to require a free channel provider to broadcast those events. If, in order to include legitimately an event in a list of events of major importance for society, the Member States had to require a free television service to broadcast it, the provision in question would produce effects going beyond the scope of its objective.
133. The fact that the United Kingdom followed a different approach in respect of other events, such as the Cricket World Cup, or that other Member States included mainly ‘prime’ World Cup matches in their lists, does not affect the findings set out above, according to which the World Cup in its entirety may legitimately be regarded as an event of major importance for United Kingdom society. Since Article 3a of Directive 89/552 does not effect a harmonisation of specific events which Member States may consider to be of major importance for society (see paragraph 55 above), a number of different approaches concerning the inclusion of the World Cup matches in a national list may be equally compatible with the provision in question.
134. Given that FIFA’s arguments to the effect that the Commission erred in upholding the United Kingdom authorities’ assessment that the World Cup in its entirety constitutes an event of major importance for United Kingdom society must be rejected, so too must the second part of this plea as well the present plea in its entirety.
The third plea: infringement of FIFA’s right to property
Arguments of the parties
135. FIFA observes that the right to property is guaranteed by the Community legal order as a general principle of Community law. Restrictions may be placed on the exercise of that right, in order to meet objectives of general interest, on condition that the interference is not disproportionate and does not impair the very substance of the right. The exclusive exploitation of intellectual property rights by the use or grant of licences constitutes the essence of such rights.
136. The contested decision approving the inclusion of ‘non-prime’ World Cup matches in the United Kingdom list of events of major importance for society, when those matches should not be so categorised, has the effect not only of approving the restriction on FIFA’s right to exploit its property right but also of effectively annihilating it, irrespective of its effect on broadcasters. The prohibition on granting an exclusive licence to broadcast live any World Cup match in the United Kingdom arbitrarily deprives FIFA of the essence of its property right.
137. No objective of general interest justifies such a drastic and disproportionate interference with its property right, since the inclusion of only ‘prime’ matches in the list of events of major importance for society is appropriate and largely sufficient to guarantee public access to those events. FIFA observes that the grant and acquisition of exclusive rights to broadcast sporting events are of crucial importance and are a normal commercial practice accepted as such by the Commission itself. Exclusivity significantly enhances the value of the rights and the prohibition on the exclusive grant of such rights therefore affects their very essence.
138. The Commission therefore made a manifest error of assessment in considering, in the contested decision, that the United Kingdom measures appear to be proportionate by reference to the objective of ensuring wide access to television broadcasts of events of major importance for society.
139. The Commission, supported by the interveners, disputes the merits of this plea.
Findings of the Court
140. 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.
141. Thus, since the value of those rights is liable to be affected by the legal effects arising from the contested decision (see paragraphs 33 to 37 above), FIFA’s property right is also affected.
142. 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.
143. 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).
144. It must be borne in mind in that regard that, for the reasons set out in paragraphs 116 to 134 above and contrary to FIFA’s submissions, the World Cup may legitimately be regarded as a single event of major importance for United Kingdom society, the viewing figures relating to ‘non-prime’ matches confirming, rather than invalidating, the assessment in recitals 6 and 18 of the contested decision. In this context, the fact that the World Cup is, by nature, a single event means that the Commission did not err in finding that the inclusion of all World Cup matches in the United Kingdom list is a proportionate measure.
145. Accordingly, the complaint that the inclusion of ‘non-prime’ matches in the list of events of major importance for United Kingdom society is a disproportionate and intolerable interference with FIFA’s property right on the ground that those matches are not such events is based on an incorrect assumption.
146. Furthermore, although the legislation in question is liable to affect the price which FIFA will obtain for grant of the rights to broadcast the World Cup in the United Kingdom, it does not destroy the commercial value of those rights because, first, it does not oblige FIFA to sell them on whatever conditions it can obtain and, secondly, FIFA is protected against collusive and abusive practices by Community and national competition law. Accordingly, the Commission did not err in concluding that the United Kingdom measures were proportionate.
147. The third plea in law must accordingly be rejected.
The fourth and sixth pleas: infringement of the Treaty provisions on freedom to provide services and the freedom of establishment
Arguments of the parties
148. Under the first of these pleas in law, which it is appropriate to consider together, FIFA submits that the contested decision places a restriction on freedom to provide services since, first, it has the effect of preventing FIFA from granting exclusive broadcasting rights for any World Cup match to broadcasters in the second of the categories established by the United Kingdom legislation (see paragraph 10 above) and, secondly, broadcasters in that category established in other Member States cannot broadcast a World Cup match on an exclusive basis in the United Kingdom. The elimination of the possibility of acquiring such rights to broadcast in the United Kingdom on an exclusive basis removes all incentive for broadcasters from other Member States in obtaining those rights, thereby preventing them from broadcasting any World Cup match in the United Kingdom. The exclusivity is essential for broadcasters wishing to innovate or develop their services, especially in Member States other than the Member State where they are established.
149. In that regard, even if restrictions on freedom to provide services may be justified by overriding reasons in the public interest, the national measures adopted to that end must be necessary, appropriate and proportionate. The Commission, which has the burden of proving in the present case that those conditions are satisfied, must undertake a detailed assessment and show that it has received evidence to that effect.
150. Yet those restrictions, which are moreover recognised in recital 19 of the contested decision, are vastly disproportionate and inappropriate and should have been eliminated or attenuated through the inclusion in the list of events of major importance for United Kingdom society of only those World Cup matches which are of such importance, that is, the ‘prime’ matches. This position is in line with FIFA’s own policy, which requires that the opening match, the semi-finals, the final and matches involving the relevant national team be broadcast on free channels, with the possibility of other matches being broadcast on pay channels. FIFA adds that the proportionate or disproportionate nature of the decision to include each event on the United Kingdom list must be assessed separately, as in reality it constitutes a bundle of decisions, each relating to a specific event.
151. FIFA adds, in response to the arguments which the United Kingdom bases on the Office of Communications’ power to authorise an exclusive live broadcast, that non-qualifying broadcasters will have no interest in acquiring broadcasting rights if exclusivity is not guaranteed
152. Under the plea alleging infringement of freedom of establishment, FIFA submits that, since Article 66 EC in one of the legal bases for Directive 97/36 and the national measures adopted pursuant to Article 3a of Directive 89/552 must comply with all provisions of Community law, the national measures must inter alia be compatible with the articles of the EC Treaty on freedom of establishment. In FIFA’s submission, the United Kingdom list approved by the contested decision prevents broadcasters wishing to establish themselves in the United Kingdom and wishing to offer pay television services from obtaining exclusive rights to broadcast World Cup matches.
153. Whilst it is true that where national measures restricting freedom of establishment apply to all persons or undertakings pursuing an activity in the territory of the host Member State, they may be justified where warranted by overriding reasons in the public interest, yet they must still be appropriate for attaining the objective which they pursue and not go beyond what is necessary in order to attain it.
154. Since exclusive broadcast rights for sporting events is an important means of exercising freedom of establishment for new entrants in the United Kingdom market, the impossibility for a new potential entrant to broadcast a World Cup match on an exclusive basis constitutes a restriction on freedom of establishment. Consequently, the Commission erred in the contested decision by not recognising that this was the case.
155. The Commission, supported by the interveners, disputes the merits of the arguments put forward by FIFA under the present pleas in law.
Findings of the Court
156. It is not disputed, and is, moreover, acknowledged in recital 19 of the contested decision, that the mechanism of mutual recognition triggered by the contested decision pursuant to Article 3a of Directive 89/552 has the effect of restricting freedom to provide services in the common market, as established by Article 49 EC.
157. Moreover, as stated by FIFA, the United Kingdom measures are liable to place broadcasters established in other Member States in a less favourable factual or legal position than broadcasters established in the United Kingdom. In that regard, notwithstanding the fact that the legislation described in paragraphs 10 to 13 above applies without distinction to broadcasters in both categories established by the United Kingdom legislation, it is, in reality, much less likely that no broadcaster in the first category, most probably established in the United Kingdom, will be interested in broadcasting the World Cup, thereby giving a competitor wishing to establish itself in the United Kingdom the opportunity of obtaining authorisation from the Office of Communications to broadcast that event on an exclusive basis, than the reverse situation. It follows that the United Kingdom measures are in fact impediments to freedom of establishment as laid down in Article 43 EC.
158. Neverthe less, those restrictions on freedom to provide services and on freedom of establishment may be justified, since they are intended to protect the right to information and to ensure wide public access to television broadcasts of events, national or non-national, of major importance for society, subject to the additional conditions that they be appropriate for attaining the objective which they pursue and do not go beyond what is necessary in order to attain it (see paragraphs 48 to 54 above).
159. In that regard, it must be borne in mind that FIFA disputes the lawfulness of the contested decision in the light of the Treaty provisions on freedom to provide services and freedom of establishment in so far as the Commission approves the inclusion of ‘non-prime’ matches in the list of events of major importance for United Kingdom society. In FIFA’s submission, those matches do not qualify as such, with the result that the restriction on freedom to provide services and on freedom of establishment is disproportionate.
160. It should be noted that that argument put forward by FIFA reveals confusion between, on the one hand, the major importance of an event for society, which is the first condition to be met and which is the overriding reason in the public interest justifying the restriction of a fundamental freedom guaranteed by the Treaty (see paragraphs 48 to 53 above), and, on the other, the proportionality of the restriction in question, which is a second condition which must be met by the national legislation restricting such a freedom in order to be compatible with Community law (see paragraph 54 above).
161. In that context, it should be observed that, as evidenced by the analysis in paragraphs 116 to 134 above, and contrary to FIFA’s submissions under its fourth plea in law, the World Cup may legitimately be regarded as a single event of major importance for United Kingdom society, the viewing figures relating to ‘non-prime’ matches confirming rather than invalidating the assessment in recitals 6 and 18 of the contested decision. It is therefore clear that the argument alleging that the matches in question are not of major importance for society, with the result that the United Kingdom measures are disproportionate, is, in any event, based on an incorrect assumption. Consequently, this argument does not invalidate the Commission’s conclusion that the inclusion of all World Cup matches in the list of events of major importance for United Kingdom society was appropriate and proportionate, given that the World Cup is, by nature, a single event.
162. The same considerations apply in respect of freedom of establishment. Even though, in its line of argument under its sixth plea in law, FIFA did not state specifically whether it is challenging the validity of the Commission’s position in the contested decision as to the compatibility of the United Kingdom list with Community law, only in so far as the Commission approves the inclusion of ‘non-prime’ matches in that list, its application as a whole, along with its response to the written question from the Court (see paragraph 68 above), indicates that this is indeed so.
163. It follows from the considerations set out in paragraph 161 above that the arguments alleging infringement of the Treaty provisions on freedom of establishment cannot succeed.
164. The fourth and sixth pleas in law must accordingly be rejected.
The fifth plea: infringement of the Treaty on competition
Arguments of the parties
165. FIFA submits that the contested decision does not contain any analysis relating to distortion of competition caused by the inclusion of all World Cup matches in the list of events of major importance for United Kingdom society. That distortion consists in a reduction in the number of broadcasters competing to obtain rights to broadcast the World Cup in the United Kingdom, which affect’s FIFA’s earnings as organiser of that event. Nor does the contested decision identify the products or markets which were the subject-matter of its analysis which led to recitals 20 and 21 of the contested decision (see paragraph 18 above). A definition of the relevant markets was essential, however, for the purposes of analysing the competition situation, especially since the United Kingdom list concerns four different football competitions.
166. FIFA maintains that the definition of broadcasters in the first category established by the United Kingdom legislation was deliberately designed to enable only traditional United Kingdom broadcasters to satisfy the conditions laid down and thus to acquire the exclusive right to broadcast World Cup matches live. In practice, those rights have always been acquired jointly, since 1966, by two broadcasters, the BBC and ITV, with the result that, first, in reality there is no competition for the acquisition of the rights to broadcast World Cup matches in the United Kingdom and, second, BBC and ITV are in a collective dominant position. The Commission therefore erred in asserting, in recital 20 of the contested decision, that the United Kingdom measures allowed actual and potential competition for the acquisition of those rights. Those measures also give rise to a distortion of the advertising market, as well as the market for broadcasting sporting events on pay television.
167. The United Kingdom list thus grants special rights to the BBC and ITV; the fact that the criteria for granting those rights are objective is irrelevant in that regard. By always jointly acquiring the rights to the World Cup, those broadcasters act as a collective entity. Thus, in FIFA’s submission, they are in a collective dominant position and the grant of the rights in question is liable to entail an abuse of a dominant position. FIFA observes that, for a Member State to infringe the combined provisions of Article 86(1) EC and Article 82 EC, there is no need to establish that there has actually been such an abuse of a dominant position. The fact that an abuse could result is sufficient. Moreover, the United Kingdom measures created a market structure which authorises and favours abusive conduct.
168. In addition, the BBC and ITV did not fully exploit the rights which they acquired, since during the last four World Cup tournaments they broadcast live only 40 of the 244 matches played. In doing so, they limited production, contrary to Article 82 EC. The acquisition of the rights in issue by those two broadcasters also limited the development of markets such as the market in pay television channels and the market in television advertising for the World Cup, since there are considerable obstacles to acquiring broadcasting rights for sporting events of similar importance, all of which are held by pay channels for considerable periods.
169. FIFA adds that the grant of the special rights in question to the BBC and ITV, together with their agreement to acquire jointly the rights to broadcast the World Cup, is a measure which is contrary to Article 81(1) EC, thus infringing Article 86(1) EC.
170. The Commission, supported by the interveners, disputes the merits of FIFA’s assertions.
Findings of the Court
171. FIFA’s line of argument under this plea can be divided into two complaints.
172. The first complaint concerns the consequences resulting from the fact that, in light of the importance of the exclusivity of broadcasting rights for the World Cup matches for those broadcasters coming within the second category established by the United Kingdom legislation, the latter will not be interested in acquiring non-exclusive rights. In FIFA’s submission, that leads to restrictions on competition on a number of markets, including the market for acquisition of such rights, the advertising market and the market for broadcasting sporting events by pay television channels, due to the reduction in the number of broadcasters active on those markets. FIFA also complains that the Commission failed to define those markets and failed to explain its assessment of those restrictions.
173. It should be observed, in that regard, that the consequences in question result indirectly from the restrictions on freedom to provide services introduced by the United Kingdom measures. Yet, as was held in respect of the second and third pleas, restrictions on freedom to provide services resulting from the inclusion of all World Cup matches in the list of events of major importance for United Kingdom society are justified by overriding reasons in the public interest and are neither inappropriate nor disproportionate. The effects on the number of potential competitors, which are presented as being an unavoidable consequence of those obstacles to the freedom to provide services, cannot, therefore, be considered to be contrary to the Treaty articles on competition. In those circumstances, the Commission did not have to conduct a more in-depth analysis of those consequences than that which it did.
174. The second complaint concerns the special rights allegedly granted to BBC and ITV which had the effect of authorising or making possible the abuse of the dominant position of those broadcasters on the relevant market, which is, in FIFA’s submission, the market for broadcast rights for World Cup matches.
175. Under Article 86(1) EC, the competition rule applicable to State measures (Case C‑22/98 Becu and Others
[1999] ECR I‑5665, paragraph 31), Member States must not, by laws, regulations or administrative measures, put public undertakings and undertakings to which they grant special or exclusive rights in a position which the said undertakings could not themselves attain by their own conduct without infringing Articles 12 EC and 81 EC to 89 EC (see, to that effect, Case C‑18/88 GB-Inno-BM
[1991] ECR I‑5941, paragraph 20).
176. In that regard, although it is true that special or exclusive rights within the meaning of that provision are granted when protection is conferred by the State on a limited number of undertakings which may substantially affect the ability of other undertakings to exercise the economic activity in question in the same geographical area under substantially equivalent conditions (Case C‑475/99 Ambulanz Glöckner
[2001] ECR I‑8089, paragraph 24), the fact remains that the United Kingdom legislation does not confer such protection on the broadcasters in question.
177. Thus, such rights are at issue when the public authorities have granted a monopoly (Case C‑163/96 Raso and Others
[1998] ECR I‑533, paragraph 23), when they can prevent the entry of a competitor into the market sphere of the rights-holder on grounds relating to potential adverse effects on the operation and profitability of the rights-holder’s activities ( Ambulanz Glöckner, paragraph 176 above, paragraphs 7, 23 and 25) or labour market requirements ( Becu and Others, paragraph 175 above, paragraph 23), or where the rights-holder is entitled, under the relevant legislation, to influence the terms under which the activity in question may be pursued by his competitors according to his interests or according to the consequences of their activity on that market or even on a neighbouring market (see, to that effect, Case C‑202/88 France
v Commission
[1991] ECR I‑1223, paragraph 51; ERT, paragraph 142 above, paragraph 37; GB-Inno-BM, paragraph 175 above, paragraph 25; and Case C‑49/07 MOTOE
[2008] ECR I‑4863, paragraph 43).
178. However, far from prohibiting itself or empowering the BBC or ITV to prohibit any broadcaster from acquiring the broadcast rights for the World Cup matches or to influence the terms under which they may be broadcast, the United Kingdom legislation merely provides that they cannot be broadcast on an exclusive basis in the United Kingdom, without distinguishing between the two categories of broadcasters (see paragraphs 10 and 11 above). It should be clarified that FIFA alleges, incorrectly, that the BBC and ITV are the only broadcasters which may acquire exclusive broadcast rights for the World Cup for the United Kingdom. First, as just stated, the prohibition on exclusive broadcasting introduced by section 101 of the Broadcasting Act 1996 applies equally to all broadcasters in both categories established by the United Kingdom legislation. Next, that prohibition works together with section 99 of the Broadcasting Act 1996, which declares void any contract for the broadcast of an event included in the list in so far as it purports to grant an exclusive right to any one broadcaster, whoever that may be.
179. The United Kingdom legislation thus prohibits exclusivity for any broadcaster, not only at the broadcast stage, but also at the stage of concluding broadcasting contracts, with the result that no broadcaster coming under United Kingdom jurisdiction may validly conclude a contract for the exclusive broadcast of an event included in its list. That legislation does, however, allow broadcasters in both categories established by it the same opportunity to submit offers for the acquisition of non-exclusive broadcast rights for World Cup matches.
180. In those circumstances, the result that, with the authorisation of the Office of Communications, only certain broadcasters in the first category, such as the BBC and ITV, will ultimately broadcast the World Cup in the United Kingdom, since their competitors are interested only in exclusive broadcasting and will therefore not submit offers to acquire the relevant rights (see paragraph 13 above) is not tantamount to a grant of special or exclusive rights to them within the meaning of Article 86(1) EC. Even assuming that the measures at hand would entail such a result, this would be because of the importance of exclusivity as part of the business model implemented by those broadcasters operating pay television channels and would not in any way stem from the United Kingdom legislation, since the terms of that legislation are applicable without distinction to broadcasters in both categories. It follows that the United Kingdom measures as such do not affect the ability of operators of pay television channels to pursue their activities on largely equivalent terms as those enjoyed by the BBC or ITV with regard to the acquisition of broadcast rights for the World Cup.
181. The fifth plea must accordingly be rejected.
Consideration of FIFA’s request for measures of organisation of procedure
182. The assessments of the various pleas put forward by FIFA lead to the result that it is not necessary to adopt the measures of organisation of procedure requested by it (see paragraphs 20 and 21 above).
183. In that regard, it should be noted that, in FIFA’s submission, its request is intended to enable it and the Court to assess, first, whether the Commission had sufficient evidence to find that all World Cup matches have traditionally been considered to be of major importance for United Kingdom society and have a special resonance with the general public; secondly, whether the Commission was justified in approving the inclusion of all those matches in the United Kingdom list; and, thirdly, whether the Commission demonstrated sufficiently that the restrictions placed on fundamental freedoms, the right to property and competition are justified. That evidence would, moreover, enable FIFA to ascertain whether the Commission provided a sufficient statement of reasons in the contested decision in failing to explain why it did not take account of the information submitted by the United Kingdom authorities after 28 July 2000. That evidence is also relevant for determining whether the procedure put in place by the United Kingdom authorities was clear and transparent, particularly with regard to the information provided to the Commission which did not exist at the time the United Kingdom list was drawn up and opinions to the contrary were issued by competent national services.
184. In those circumstances, FIFA requested the Court to invite the Commission to produce all correspondence between it and the United Kingdom authorities concerning the list of events of major importance for United Kingdom society, including the letters exchanged after 15 December 2005, the date on which judgment was delivered in Infront WM
v Commission, paragraph 15 above.
185. In that regard, it should be observed that, as was held in the course of the examination of the pleas put forward by FIFA, none of the arguments in support of which FIFA wishes to rely on evidence which may be found in documents the production of which it requests, are such as to affect the lawfulness of the contested decision.
186. In particular, regarding the importance of the ‘non-prime’ matches for United Kingdom society and, by way of corollary, the categorisation of the World Cup in its entirety as an event of major importance for United Kingdom society, FIFA produced a series of statistical elements which by nature were among the most relevant and, in its submission, demonstrated that its assertions in that respect were correct; the Court, however, found that they did not refute the Commission’s findings. The same is true of the arguments concerning the alleged failure to take account of evidence subsequent to the year 2000, since FIFA did in fact produce relevant statistical information, which the Court found did not affect the merits of the Commission’s findings. Regarding the Commission’s taking account of information which was not available at the time when the United Kingdom drew up the list of events of major importance for United Kingdom society, it should be borne in mind that that approach does not give rise to any procedural or substantive irregularity (see paragraphs 75, 76 and 95 above), with the result that it is not necessary to order any measures of organisation of procedure in that respect.
187. In those circumstances, the request for measures of organisation of procedure must be rejected and the action as a whole must be dismissed.
Costs
188. 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.
189.
The Kingdom of Belgium 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.