62008TJ0055_EN
Parties
Grounds
Operative part
Parties
In Case T‑55/08,
Union des associations européennes de football (UEFA),
established in Nyon (Switzerland), represented by A. Bell, K. Learoyd, Solicitors, D. Anderson QC and B. Keane, Solicitor,
applicant,
v
European Commission,
represented 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, lawyer,
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 by T. de la Mare and 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. 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.’
2. 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].’
3. Article 3a of Council Directive 89/552/EEC of 3 October 1989 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities (OJ 1989 L 298, p. 23), as inserted by Directive 97/36/EC of the European Parliament and of the Council of 30 June 1997 amending Council [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 State in accordance with the preceding paragraphs via whole or partial live coverage or, where necessary or appropriate for objective reasons in the public interest, whole or partial deferred coverage on free television as determined by that other Member State in accordance with paragraph 1.’
4. Recitals 18 to 22 of Directive 97/36 are worded as follows:
‘(18)	Whereas it is essential that Member States should be able to take measures to protect the right to information and to ensure wide access by the public to television coverage of national or non-national events of major importance for society, such as the Olympic games, the football World Cup and European football championship; whereas to this end Member States retain the right to take measures compatible with Community law aimed at regulating the exercise by broadcasters under their jurisdiction of exclusive broadcasting rights to such events;
(19) Whereas it is necessary to make arrangements within a Community framework, in order to avoid potential legal uncertainty and market distortions and to reconcile free circulation of television services with the need to prevent the possibility of circumvention of national measures protecting a legitimate general interest;
(20) Whereas, in particular, it is appropriate to lay down in this Directive provisions concerning the exercise by broadcasters of exclusive broadcasting rights that they may have purchased to events considered to be of major importance for society in a Member State other than that having jurisdiction over the broadcasters, …;
(21) Whereas events of major importance for society should, for the purposes of this Directive, meet certain criteria, that is to say be outstanding events which are of interest to the general public in the European Union or in a given Member State or in an important component part of a given Member State and are organised in advance by an event organiser who is legally entitled to sell the rights pertaining to that event;
(22) Whereas, for the purposes of this Directive, “free television” means broadcasting on a channel, either public or commercial, of programmes which are accessible to the public without payment in addition to the modes of funding of broadcasting that are widely prevailing in each Member State (such as licence fee and/or the basic tier subscription fee to a cable network)’.
Background to the case and contested decision
5. The applicant, the Union des associations européennes de football (UEFA), is the governing body for European football. Its core mission is to safeguard the development of European football and it organises a number of international football competitions, including the final stage of the European Football Championship (‘the EURO’), in which 16 national teams play each other once every four years in a total of 31 matches. It is the revenues generated by the sale of the commercial rights associated with those competitions that enable the applicant to promote the development of European football. UEFA states that 64% of the revenue generated by the sale of the commercial rights relating to the EURO come from the sale of television broadcasting rights for the matches.
6. 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 EURO.
7. 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.
8. 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 UEFA. 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 EURO the inclusion of the final, the semi-finals and matches involving the national teams of the United Kingdom.
9. 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.
10. 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.
11. 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.
12. 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 EURO, 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.
13. 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. 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 .
14. 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).
15. Following the judgment in Infront WM
v Commission, paragraph 14 above, the Commission adopted Decision 2007/730/EC 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’).
16. 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].’
17. The statement of reasons for the contested decision includes the following recitals:
‘(4) The list of events of major importance for society included in the [United Kingdom] measures was drawn up in a clear and transparent manner and a far-reaching consultation had been launched in the [United Kingdom].
(5) The Commission was satisfied that the events listed in the [United Kingdom] measures met at least two of the following criteria considered to be reliable indicators of the importance of events for society: (i) a special general resonance within the Member State, and not simply a significance to those who ordinarily follow the sport or activity concerned; (ii) a generally recognised, distinct cultural importance for the population in the Member State, in particular as a catalyst of cultural identity; (iii) involvement of the national team in the event concerned in the context of a competition or tournament of international importance; and (iv) the fact that the event has traditionally been broadcast on free television and has commanded large television audiences.
(6) A significant number of the events listed in the [United Kingdom] measures, including the summer and winter Olympic Games as well as the World Cup Finals and the European Championship Finals tournaments, fall within the category of events traditionally considered to be of major importance for society, as referred to explicitly in recital 18 of Directive [97/36]. These events have a special general resonance in the [United Kingdom] in their entirety, as they are particularly popular with the general public (irrespective of the nationality of the participants), not just with those who usually follow sports events.
…
(18) The listed events, including those to be considered as a whole and not as a series of individual events, have traditionally been broadcast on free television and have commanded large television audiences. …
(19) The [United Kingdom] measures appear proportionate so as to justify a derogation from the fundamental EC Treaty freedom to provide services on the basis of an overriding reason of public interest, which is to ensure wide public access to broadcasts of events of major importance for society.
(20) The [United Kingdom] measures are compatible with [the EC Treaty] competition rules in that the definition of qualified broadcasters for the broadcasting of listed events is based on objective criteria that allow actual and potential competition for the acquisition of the rights to broadcast these events. In addition, the number of listed events is not disproportionate so as to distort competition on the downstream free television and pay television markets.
(21) The proportionality of the [United Kingdom] measures is reinforced by the fact that a number of the events listed require adequate secondary coverage only.
…
(24) It follows from the judgment [in Infront WM
v Commission ] that the declaration that measures taken pursuant to Article 3a(1) of Directive [89/552] are compatible with Community law constitutes a decision, which must therefore be adopted by the Commission. Accordingly, it is necessary to declare by this Decision that the measures notified by the [United Kingdom] are compatible with Community law. The measures, as set out in the Annex to this Decision, should be published in the Official Journal of the European Union
in accordance with Article 3a(2) of Directive [89/552].’
Procedure and forms of order sought
18. By document lodged at the Registry of the Court on 5 February 2008, UEFA brought the present action.
19. UEFA 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, would assist in the efficient conduct of the written proceedings, the clarification of the issues in dispute and the judicial review which the Court is called upon to conduct.
20. 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.
21. By order of 29 September 2008, the President of the Seventh Chamber of the Court granted those parties leave to intervene. The interveners lodged their statements in intervention and UEFA lodged its observations on those statements within the prescribed time-limit.
22. 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 UEFA and two to the Commission. The Court’s questions were replied to within the prescribed time-limit.
23. UEFA claims that the Court should:
– annul the contested decision in so far as it approves, for Community law purposes, the inclusion of the EURO in its entirety in the national list of the United Kingdom;
– order the Commission to pay the costs.
24. The Commission contends that the Court should:
– dismiss the action;
– order UEFA to pay the costs.
25. The Kingdom of Belgium and the United Kingdom contend that the Court should dismiss the action.
Law
Admissibility
Arguments of the parties
26. 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 UEFA and that the Court has no jurisdiction to rule on the lawfulness of national measures. Nor did UEFA 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.
27. UEFA submits that the contested decision is of direct and individual concern to it.
Findings of the Court
28. The grounds of inadmissibility put forward by the Kingdom of Belgium raise a matter of public policy, since they involve UEFA’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).
29. With respect to the issue whether UEFA 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).
30. In that regard, under section 101 of the Broadcasting Act 1996 (see paragraph 10 above), no television broadcaster coming within one of the categories described in paragraph 9 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 12 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.
31. It follows from those rules that the sale of exclusive broadcasting rights for the EURO, of which UEFA 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.
32. 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 the consolidated list annexed to the contested decision and are 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 UEFA (see, to that effect, Commission
v Infront WM, paragraph 29 above, paragraphs 62 and 63).
33. 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 31 above by television broadcasters under their jurisdiction, with the result that the rights originally held by UEFA are also affected when they are offered publicly to broadcasters not under the United Kingdom’s jurisdiction, but rather that of another Member State.
34. It follows that the contested decision directly affects UEFA’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 29 above, paragraphs 60 and 61).
35. The contested decision is therefore of direct concern to UEFA.
36. Regarding the question whether UEFA 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 29 above, paragraph 70, and the case-law cited).
37. In the present case, it is not disputed that, irrespective of the legal nature and source of the broadcasting rights for the EURO, the latter 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 UEFA is the organiser in question. Since that situation also held true at the time of adoption of the contested decision, UEFA was perfectly identifiable at that time.
38. The contested decision is therefore of individual concern to UEFA.
39. 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 UEFA did not challenge the United Kingdom measures before the national courts, suffice it to state that, by its action, UEFA is challenging, inter alia, the lawfulness of Article 1 of the contested decision, according to which the United Kingdom measures are compatible with Community law.
40. 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 14 above, paragraph 109).
41. The arguments alleging inadmissibility of the action put forward by the Kingdom of Belgium must, accordingly, be rejected.
Substance
42. UEFA puts forward eight pleas in law: first, infringement of Article 3a(1) of Directive 89/552; second, failure to state reasons; third, infringement of Article 3a(2) of Directive 89/552; fourth, infringement of the Treaty provisions on competition; fifth, infringement of the Treaty provisions on the freedom to provide services; sixth, infringement of UEFA’s property rights; seventh, infringement of the principle of proportionality; and, eighth, infringement of the principle of equal treatment.
43. Before examining the pleas put forward by UEFA, it is appropriate to set out a number of general considerations which must be taken into account in determining whether they are well founded.
44. 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.
45. 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).
46. 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, United Pan-Europe Communications Belgium and Others, paragraph 45 above, paragraph 39, and the case-law cited).
47. 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 45 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.
48. 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.
49. 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.
50. Next, as noted in paragraph 46 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.
51. 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.
52. It follows that recital 18 in the preamble to Directive 97/36 cannot be construed as meaning that the inclusion of the EURO 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 EURO may, in any event, be validly included in its entirety in such a list, irrespective of the interest in EURO matches in the Member State concerned.
53. On the other hand, in the light of the findings set out in paragraphs 44 to 49 above, that recital implies that, when a Member State includes EURO 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.
54. It is in the light of those considerations that the merits of the pleas put forward by UEFA fall to be examined.
55. Lastly, since in its second plea, put forward in the reply, UEFA alleges a failure to state reasons in respect of the Commission’s assessment relating to the clarity and transparency in the procedure established in the United Kingdom, the Court will first examine that plea before turning to the first plea, which questions the merits of that assessment. The Court will furthermore examine the fifth plea in law before turning its attention to the fourth plea.
The second plea: failure to state reasons
– Arguments of the parties
56. UEFA argues that the contested decision does not contain a proper statement of reasons, and the Court is therefore unable to review its legality. Since it introduced restrictions on the freedom to provide services, competition and property rights, the contested decision ought to have contained a detailed statement of reasons. Nor does the contested decision contain a proper statement of reasons concerning the clarity and transparency of the procedure followed in the United Kingdom or the free dom to provide services and competition law.
57. It is clear from the terms of the contested decision that the Commission did not take into account any developments which had taken place since 2000, so that it did not have before it the necessary information to adopt a properly reasoned decision in 2007. The audience viewing figures for the 2000 and 2004 EURO show that matches not involving a national team of the United Kingdom attracted only a third as many television viewers as matches involving a United Kingdom national team. By failing to gather information about any change in circumstances following the judgment in Infront WM
v Commission, paragraph 14 above, which necessitated the adoption of a decision on the United Kingdom list, the Commission also infringed the principle of good administration. Moreover, that judgment did not endorse the assessment in the letter of 28 July 2000 (see paragraphs 13 and 14 above) regarding the compatibility of the United Kingdom list with Community law.
58. Yet the Commission merely converted the letter of 28 July 2000 into a decision, without carrying out a more in-depth analysis than the cursory analysis it did, according to its own statements before the Court, in the case which led to the judgment in Infront WM
v Commission, paragraph 14 above. That failure to carry out a detailed investigation inevitably led to an infringement of the obligation to state reasons and to manifest errors of assessment in terms of the freedom to provide services and competition law.
59. In that regard, UEFA argues that the restriction on freedom to provide services is justified by a mere reference to televised access to events of major importance for society, which is merely a reference to Article 3a of Directive 89/552 without any explanation of the elements of fact and law justifying that derogation from a fundamental provision of the Treaty. Moreover, as regards competition law, the contested decision does not even attempt to define the relevant markets.
60. Lastly, UEFA argues that the Commission ought to have given specific reasons for its choice to follow a different approach from that used in respect of those Member States which included only certain EURO matches in their lists.
61. The Commission, supported by the interveners, disputes the merits of this plea.
– Findings of the Court
62. 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 and 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).
63. Moreover, it must be borne in mind that the obligation to provide a statement of reasons is an essential procedural requirement, as distinct from the question whether the reasons given are correct, which goes to the substantive legality of the contested measure (see T‑112/05 Akzo Nobel and Others v Commission [2007] ECR II‑5049, paragraph 94).
64. Regarding the question whether the procedure established in the United Kingdom satisfies the requirements of clarity and transparency, the Commission stated, in recital 4 of the contested decision, that the list of events of major importance for United Kingdom society had been drawn up in a clear and transparent manner and that a far-reaching consultation had been launched in that Member State (see paragraph 17 above).
65. In that regard, it should be noted, first, that UEFA itself participated in the procedure in question, as organiser of the EURO, in submitting, by letter of 23 December 1997 addressed to the Secretary of State, its observations on the potential inclusion of that competition in the list of events of major importance for United Kingdom society.
66. Second, the provisions of the Broadcasting Act 1996 relating to events of major importance for society are annexed to the contested decision. Section 97 of that act provides that the list in question is to be drawn up by the Secretary of State following consultation with, inter alia, the person from whom the television broadcasting rights may be acquired in respect of any event of national interest which the Secretary of State proposes to include in, or omit from, the list.
67. Third, it is clear from recital 5 of the contested decision, read in conjunction with recitals 6 and 18 thereof, that the inclusion of the EURO in the United Kingdom list was approved by the Commission on the ground that that competition has a special general resonance within that Member State and not simply a significance to those who ordinarily follow sporting events on television, and has traditionally been broadcast on free television and commanded large television audiences. Moreover, the criteria in question are among those which the Ministry established prior to the consultation procedure on individual events to be included in the United Kingdom list (see paragraphs 7 and 8 above).
68. It follows that the contested decision contains the necessary information to enable UEFA to understand the reason why the Commission concluded that the procedure followed by the Secretary of State was clear and transparent having regard to the criteria used for the selection of events to include in the list, the consultation relating to that selection and the definition of the competent authority for that purpose and the Court to conduct its review of the merits of that appraisal.
69. Since UEFA further submits generally that there was a failure to provide an adequate statement of reasons in regard to the freedom to provide services and competition law, it should be borne in mind that, in recitals 19 and 20 of the contested decision, the Commission set out its reasons for finding that the United Kingdom measures are not contrary to Community law provisions relating to those areas (see paragraph 17 above).
70. In that regard, the Commission stated that the United Kingdom measures appear proportionate so as to justify a derogation from the freedom to provide services on grounds of overriding reasons in the public interest, such as televised access for the general public to events of major importance for society. Recital 19 of the contested decision shows that the Commission set out the reasons why it found that the Treaty provisions relating to the freedom to provide services do not preclude the inclusion of the EURO in the list of events of major importance for United Kingdom society in a manner which enables UEFA to understand those reasons and to challenge them on their merits and the Court to conduct its review. Since recitals 5, 6 and 18 of the contested decision set out the Commission’s grounds for finding that the EURO is an event of major importance for society, UEFA, as the original holder of the broadcast rights for the EURO, is in a position to assess whether there are factors which may call that assessment in question or potentially show that it is disproportionate or otherwise contrary to Community law to include all EURO matches in the list of events of major importance for United Kingdom society.
71. Regarding competition law, the Commission stated, in recital 20 of the contested decision, that the criteria used for classifying the broadcasters are objective and that the United Kingdom measures allow actual and potential competition for the acquisition of the rights to broadcast the events in question. The Commission found that the number of events included is not disproportionate so as to distort competition on the downstream free television and pay television markets.
72. It should be observed that, in that recital, the Commission stated the reasons why it takes the view that the United Kingdom measures do not infringe Article 86 EC. In that same recital, the Commission also sets out its position by reference to the market for acquiring the broadcasting rights for the events in question and the downstream free television and pay television markets. It should also be noted that the object of the contested decision is not to assess the lawfulness of the undertakings’ conduct in the light of Articles 81 EC and 82 EC and, where necessary, adopt measures on the basis of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (OJ 2003 L 1, p. 1), but rather to determine the compatibility of the State measures with Article 86 EC. Accordingly, the Commission’s obligation to state reasons under Article 253 EC has been satisfied when it provides an unequivocal explanation of the reasons why it finds that the national legislation does not give rise to a restriction on competition which is incompatible with the relevant Treaty rules in respect of the undertakings to which special or exclusive rights have been granted.
73. Since those grounds are given in recital 20 of the contested decision, UEFA is in a position to understand the Commission’s reasoning and to challenge the merits thereof before the Court, which is able to exercise its power of review in that regard.
74. Regarding UEFA’s arguments to the effect that the Commission did not provide reasons in the contested decision to the requisite legal standard by failing to take into account factors arising after the year 2000 to determine the accuracy of the Secretary of State’s assessments which led to the inclusion of the EURO in the list of events of major importance for United Kingdom society, those factors do not relate to the reasoning in the contested decision, but rather to the merits of its reasons. Since the Commission did set out, in recitals 5, 6 and 18 of the contested decision, its reasons for finding that the EURO could legitimately be included in the list in question, a failure to take into account factors liable to invalidate its assessment in that regard, if it were to be established, affects the lawfulness of the contested decision as to its merits. Those arguments therefore fall to be examined under the third plea in law.
75. As to the argument that the Commission ought to have given specific reasons for its choice to follow a different approach from that used in respect of Member States which included only certain EURO matches in their lists, it is clear that the Commission had no such obligation in the present case.
76. In that regard, as Article 3a of Directive 89/552 does not effect a harmonisation of specific events which Member States might consider to be of major importance for society (see paragraphs 51 and 52 above), different approaches concerning the inclusion of EURO matches in a national list may be equally compatible with that provision.
77. In those circumstances, if the inclusion of the EURO in its entirety in a national list is compatible with Community law, there is nothing preventing the inclusion of only certain matches of that competition from being equally compatible with Community law. Accordingly, contrary to the applicant’s submissions, the fact that the Commission stated, in its decisions, that different approaches were also compatible with Community law is not necessarily contradictory and does not call for any specific statement of reasons.
78. The second plea in law must accordingly be rejected.
The first plea: infringement of Article 3a(1) of Directive 89/552
– Arguments of the parties
79. UEFA observes that Article 3a(1) of Directive 89/552 requires Member States to draw up the list of events of major importance for society in a clear and transparent manner in due and effective time. In that regard, the contested decision merely states, in recital 4, that that requirement had been fulfilled and that a far‑reaching consultation was launched in the United Kingdom.
80. That consultation was incomplete, however, as the Secretary of State failed to take proper account of UEFA’s comments. The Secretary of State also ignored the advice of the Advisory Group on listed events (see paragraph 8 above), which recommended including matches not involving the United Kingdom’s national teams in the list’s ‘Group B’, and that of the Office of Fair Trading (OFT), which proposed that matches be included in the list of events of major importance for society only where warranted by an ‘overwhelming public interest’. Nevertheless, the Secretary of State failed to explain why he did not follow that advice or why each EURO match must be considered as being of major importance for United Kingdom society.
81. Nor was any consultation held regarding the definition of qualified broadcasters in the categories established by section 98 of the Broadcasting Act 1996 (see paragraph 9 above), criteria which exacerbate the restrictions on competition imposed by the United Kingdom legislation and make it practically impossible for broadcasters established outside the United Kingdom to acquire exclusive television broadcasting rights for events included in the list. The classification of broadcasters into categories also affects the scope of the consequences of an event’s being included in the list.
82. UEFA observes that the United Kingdom has not amended the list of events of major importance for society since 1998; yet the market has changed profoundly since then. A consultation held in 1997 and in 1998 cannot, therefore, be considered appropriate for the purposes of adopting a Commission decision in October 2007.
83. The Broadcasting Act 1996 does not meet the requirements of Article 3a of Directive 89/552, as it does not require the Secretary of State to consider whether a deferred broadcast is sufficient to safeguard the public interest in televised access to an event of major importance. Moreover, the procedure by which each event is placed on one list or another is neither clear nor transparent. Accordingly, the statement in recital 21 of the contested decision, to the effect that the proportionality of the United Kingdom measures is reinforced by the fact that a number of the events listed require adequate secondary coverage only, does not explain why it was reasonable and proportionate to include all EURO matches in the ‘Group A’ list.
84. UEFA observes that the United Kingdom measures impose restrictions on exclusive rights acquired as from 1 October 1996, whereas the EURO was included in that Member State’s list only on 25 June 1998. Yet the Commission did not examine the lawfulness of the imposition of retroactive restrictions on the rights relating to the EURO, even though such a course of action does not seem compatible with either the United Kingdom legislation or Article 3a(3) of Directive 89/552.
85. Lastly, UEFA observes that its complaints call in question the validity of the contested decision, since the Commission found incorrectly that the procedure followed at national level was clear and transparent, and that the fact that it did not challenge the United Kingdom measures before the national courts does not preclude it from raising this plea.
86. The Commission, supported by the interveners, disputes the merits of this plea.
– Findings of the Court
87. 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.
88. 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 46 above).
89. 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 47 to 49 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).
90. It is in this 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 45 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 119 below).
91. 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.
92. 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, by services coming under the competent authority or by interested parties who participated in the procedure.
93. Therefore, UEFA’s arguments alleging a failure to take account of the recommendations of the Advisory Group on listed events, the Office of Fair Trading and its own observati ons are not apt to call into 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 6 to 8 above).
94. Moreover, 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. UEFA’s arguments alleging that neither the Secretary of State nor the Commission set out the reasons why the opinion of the Advisory Group on listed events was not followed are thus not suitable for establishing that the contested decision is vitiated by error in concluding that the procedure put in place in the United Kingdom is clear and transparent.
95. That conclusion is all the more compelling in relation to the EURO, 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 ‘gala’ and ‘non-gala’ matches and into matches involving the relevant national team (see paragraph 103 below).
96. In those circumstances, if an interested party takes the view that the opinions or observations put forward during the consultation procedure contain aspects which invalidate the final assessment of the competent 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 UEFA has, moreover, done with its third plea in law.
97. Furthermore, a failure to consult as to the criteria for grouping the broadcasters, if it were established, does not affect the validity of 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. Under Article 3a(1) of Directive 89/552, the obligation of clarity and transparency concerns the procedure for drawing up the list in question and not the procedure under which the entire legal framework for safeguarding the right to information has been put in place. Lastly, the compatibility of that legal framework with Community law falls to be assessed by the Commission under Article 3a(2) of that same directive.
98. Nor does the question whether the Commission could legitimately base itself on information gleaned from a consultation held prior to 1998 for the purposes of adopting the contested decision in 2007 go to the clarity or transparency of the procedure put in place at national level, but concerns rather the merits of the Commission’s assessment of the inclusion of the EURO in the United Kingdom list, a question which will be considered as part of the examination of the third plea.
99. Similarly, UEFA’s arguments to the effect that the Broadcasting Act 1996 does not oblige the Secretary of State to consider first whether the public interest may be adequately safeguarded by a deferred broadcast of events of major importance for United Kingdom society by free channels cannot succeed. It is clear, in that regard, that that line of argument is based on an incorrect reading of the last sentence of Article 3a(1) of Directive 89/552. That part of the provision in question does not oblige Member States to consider whether the object of televised access for a significant proportion of the public to an event of major importance for society may be adequately safeguarded where it is broadcast live by a pay channel and deferred by a free channel. That sentence allows Member States to provide that an event of major importance for society must be broadcast on television, a possibility of which the United Kingdom has not availed itself. The national legislation in question does not set out any broadcasting obligations for broadcasters, as indicated, moreover, in section 9 of the Code on Sports and Other Listed and Designated Events.
100. By way of corollary, Article 3a(1) of Directive 89/552 does not require Member States to provide for separate procedures for establishing each of the categories in which they have found it appropriate to classify events of major importance for their society. In fact, that provision requires that the events included in the list actually be of major importance for society, although it does not intervene in a Member State’s assessment as to the appropriateness of grouping those events into various categories. Accordingly, the fact that there is a single procedure for drawing up the list in question as a whole does not invalidate the Commission’s assessment of the clarity and transparency of the procedure put in place in the United Kingdom. UEFA’s complaint cannot, therefore, succeed.
101. Consequently, the Commission was not required to set out specifically in the contested decision the reasons as to why it was appropriate to include all EURO matches in ‘Group A’ in the United Kingdom list; UEFA’s argument in that regard must, accordingly, be dismissed.
102. Regarding the argument to the effect that the Secretary of State did not set out the reasons why each EURO match had to be considered as being of major importance for society, first, it must be borne in mind that the EURO is referred to in recital 18 in the preamble to Directive 97/36 as an example of an event of major importance for society. Second, as part of its third plea, UEFA submits that only the so-called ‘gala’ matches, such as the opening match and the final, and matches involving a national team of the United Kingdom are actually of major importance for United Kingdom society.
103. Third, although it is true that no position is adopted in recital 18 in the preamble to Directive 97/36 on the question of whether all or some of the EURO matches should be included in a national list of events of major importance for society (see paragraph 52 above), there is no valid consideration leading to the conclusion that, in principle, only ‘gala’ matches and matches involving a national team of the United Kingdom may be thus categorised for the society of that Member State and therefore included in such a list. In fact, the EURO is a competition which may reasonably be regarded as a single event as a whole rather than as a series of individual events divided up into ‘gala’ and ‘non-gala’ matches and into matches involving the relevant national team. It is well known that, in the EURO, the participation of the teams in ‘gala’ matches or in matches involving the relevant national team may depend on the results of ‘non-gala’ matches, which determine the fate of those teams. Thus ‘non-gala’ matches determine the opponents of the relevant national team in the subsequent stages of the competition. In addition, the results of ‘non-gala’ matches may even determine whether or not that national team advances to the subsequent stage of the competition.
104. Given that specific context which characterises the EURO as a single event, the Secretary of State did not have to provide more detailed reasons for its appraisal in respect of ‘non-gala’ matches, especially when the relevant statistics do not show that those matches regularly attract a negligible number of television viewers (see paragraphs 126 to 135 below).
105. Moreover, the argument alleging retroactive effect of the United Kingdom legislation does not go to the clarity or transparency of the procedure followed for drawing up the list of events of major importance for United Kingdom society. In so far as, by that argument, UEFA intends to allege an infringement of Article 3a(3) of Directive 89/552, it should be noted that that provision lays down, as part of the mechanism of mutual recognition, the obligations of the Member States other than the one which adopted a list of events of major importance for society. Accordingly, the reference to rights acquired after publication of Directive 97/36 concerns the rules which the other Member States must adopt in order to comply with their obligations of mutual recognition and not the course of action taken by the Member State which adopted the list, in this case the United Kingdom.
106. Therefore, UEFA’s arguments fail to establish that the Commission erred in finding that the procedure described in paragraphs 7 and 8 above was clear and transparent.
107. The first plea must, accordingly, be dismissed.
The third plea: infringement of Article 3a(2) of Directive 89/552
– Arguments of the parties
108. UEFA submits that none of the criteria referred to by the Commission in recital 5 of the contested decision (see paragraph 17 above) is met by the totality of the matches of the EURO.
109. In regards to the first criterion, UEFA submits that the Commission’s assessment described in recital 6 of the contested decision, to the effect that the EURO in its entirety has a special general resonance in the United Kingdom, as it is particularly popular with the general public, not just with viewers who usually follow sports events on television, is vitiated by a manifest error of assessment. That error affects the categorisation of the EURO in its entirety as an event of major importance for United Kingdom society because, contrary to the Commission’s submissions, the EURO does not meet the first criterion referred to in recital 5 of the contested decision.
110. Two surveys relating to the United Kingdom carried out by a market research company commissioned by UEFA show that, of the people ‘not usually interested’ or ‘not at all interested’ by football, only a low percentage is interested in the matches of the EURO not involving a national team of the United Kingdom. Thus, 20% of those who are ‘not usually interested’ by football would be ‘somewhat interested’ in such matches, as compared with 1% who would be ‘extremely interested’ and 45% who would be interested in EURO matches involving a national team of the United Kingdom. Moreover, among those who ‘occasionally’ watch television broadcasts of football matches, only 33% would be interested in a match not involving a national team of the United Kingdom, as compared with 56% who would be interested in a match involving a national team of the United Kingdom. Meanwhile, among those who ‘never’ watch football on television, only 4% would be interested in a match not involving a national team of the United Kingdom.
111. Those findings are corroborated by viewing figures for the United Kingdom, according to which matches from EURO 2004 not involving a national team of the United Kingdom attracted an average of only 32% of the television viewing audience at the time of the matches, as compared with an average of 67% of television viewers who watched when a match involved a national team of the United Kingdom. The figures for EURO 2000 and 2008 show a similar pattern, whilst in EURO 1996 the group stage matches not involving a national team of the United Kingdom attracted, on average, half of the television viewers who watched the group stage matches involving a national team of the United Kingdom. In UEFA’s submission, those figures show that EURO matches not involving a national team of the United Kingdom do not have a special resonance in the society of the United Kingdom, with the result that it would be incorrect to conclude that television viewers who do not usually watch football would be interested in those matches and that those matches are of major importance for United Kingdom society.
112. UEFA adds that two matches from EURO 2004 and two matches from EURO 2008 were broadcast, with the authorisation of the Office of Communications, by television channels in the second category as established by the United Kingdom legislation (see paragraph 9 above) and attracted between 4 000 and 739 000 viewers. Yet, in UEFA’s submission, if those matches really were of major importance for United Kingdom society, BBC and ITV would not have asked for authorisation to broadcast them on their secondary channels and those matches would not have had such low viewing figures. UEFA adds that the channels which broadcast those matches cover a significant proportion of the public in the United Kingdom (31.6 million in 2004 and 50.4 million in 2008), with the result that those viewing figures cannot be attributed to a low rate of coverage.
113. Regarding the fourth of those criteria, which the Commission seems to have endorsed in recital 18 of the contested decision in respect of the EURO, UEFA submits that it does not constitute an appropriate basis for measuring the importance of an event for society. In fact, before the development of pay television, this criterion would have applied to every sporting event that was televised.
114. Moreover, EURO matches not involving a national team of the United Kingdom regularly attract much lower numbers of viewers there than matches involving such a national team, with the result that, apart from the ‘gala’ matches, only matches involving a national team of the United Kingdom are really of importance for United Kingdom society as a whole. This point was even recognised in the context of a Commission decision on competition in the television broadcasting sector. It is also quite telling that EURO matches not involving a national team did not achieve the viewing figures of the last of the top 10 sporting events of 2007 nor of the last of the top 100 television programmes of 2006 and 2007.
115. The predominant interest for the national team also features in viewer habits in other Member States, such as Germany, Spain, France, Italy and the Netherlands, with the data for the United Kingdom showing an even stronger tendency in that vein, in respect of other sports as well. Yet, in respect of the EURO, apart from the Kingdom of Belgium and the United Kingdom, almost all Member States which have drawn up lists of events of major importance for their society have included only ‘gala’ matches and matches involving the relevant national team. There is, however, no objective difference justifying the approach adopted by the United Kingdom, which the Commission could have found out for itself had it investigated the matter.
116. Consequently, in concluding that the EURO, in its entirety, assumes major importance for United Kingdom society, the Commission made a manifest error of assessment. That error also constitutes de facto
discrimination against UEFA in the sale of television broadcasting rights for the EURO in the United Kingdom. Thus, the Commission did not correctly verify the compatibility of the national measures with Community law, thereby infringing its obligation under Article 3a(2) of Directive 89/552.
117. UEFA adds that if recital 18 in the preamble to Directive 97/36 is to be interpreted as meaning that the EURO as a whole must be considered of major importance for society, it is vitiated by unlawfulness which can be reviewed by virtue of Article 241 EC.
118. The Commission, supported by the interveners, disputes the merits of this plea and adds that UEFA did not validly raise an objection to Directive 97/36 pursuant to Article 241 EC. The Commission further confirms that the EURO, taken in its entirety, fulfils the first and fourth criteria referred to in recital 5 of the contested decision, as indicated in recitals 6 and 18 thereof.
– Findings of the Court
119. 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 for the purposes of recital 21 in the preamble to Directive 97/36, Article 3a of Directive 89/552 leaves the Member States considerable discretion in that regard.
120. Next, 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 51 and 52 above), the reference to the EURO in recital 18 in the preamble to Directive 97/36 implies that the Commission cannot consider the inclusion of EURO 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 them as an event of major importance for society (see paragraph 53 above). However, any finding by the Commission that the inclusion of the entire EURO in a list of events of major importance for society of a Member State is compatible with Community law, on the ground that the EURO is, by its nature, legitimately regarded as a single event, may be called in question on the basis of specific factors showing that the ‘non-gala’ matches are not of such importance for the society of that Member State.
121. As stated in paragraphs 51 and 52 above, neither recital 18 of Directive 97/36 nor Article 3a of Directive 89/552 addresses the question of whether the EURO in its entirety may legitimately be included in a list of events of major importance for society, irrespective of the interest for the matches, particularly ‘non-gala’ matches, in the Member State concerned.
122. Consequently, any discussion about the lawfulness of Directive 97/36 in relation to categorisation of the EURO in its entirety as an event of major importance for society, rather than only the ‘gala’ matches and matches involving a national team of the United Kingdom (see paragraph 117 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 UEFA could legitimately put forward a plea pursuant to Article 241 EC in its reply.
123. Moreover, as explained in paragraph 103 above, the EURO may reasonably be regarded as a single event rather than as a series of individual events divided into matches of various levels of interest, with the result that the Secretary of State’s approach is not arbitrary but within the limits of his discretion.
124. The importance of the ‘non-gala’ matches arises, moreover, from the simple fact that they are part of the EURO tournament, just like other sports for which interest, usually low, is heightened when they take place in the Olympic Games.
125. It follows that, in not questioning the view that it was not necessary to distinguish between ‘gala’ matches and matches involving a national team of the United Kingdom, on the one hand, and ‘non-gala’ matches, on the other, for the purpose of determining the importance of the EURO for United Kingdom society and that the EURO should be considered in its entirety and not as a series of individual events (recitals 6 and 18 of the contested decision, see paragraph 17 above), the Commission did not make any error.
126. Lastly, the results of the studies commissioned by UEFA confirm that finding rather than invalidate it, with the result that the arguments put forward by UEFA in that regard as part of the present plea do not affect the findings in recitals 6 and 18 of the contested decision.
127. It should be observed, first, that the inclusion of ‘non-gala’ matches in the national list of events of major importance for society does not require that they draw the same number of viewers as ‘gala’ matches and matches involving the relevant national team, nor that they foster, among non-fans of football, an interest of equal intensity to that generated by ‘gala’ matches or matches involving the relevant national team.
128. Second, contrary to UEFA’s submissions, the fact that 21% of United Kingdom residents who are not usually interested in football state that they are interested in EURO matches not involving a national team of the United Kingdom, as compared with 45% stating they are interested in matches involving such a team (see paragraph 110 above), shows that the first category of matches arouses much greater interest among non-fans of football than do matches which are not part of a major international football competition involving national teams and not involving a national team of the United Kingdom. The same holds true for the 7% of United Kingdom residents who are completely uninterested in football, who state that they nevertheless are interested in EURO matches not involving a national team of the United Kingdom, as compared with 17% of the same group who state that they are interested in matches involving such a team. In contrast, therefore, to what is seen to be the case for ‘non-gala’ matches of the EURO, per sons who, according to the very premiss of the survey in question, are usually or completely uninterested in football will, by definition, not be interested in matches which are not part of a major international football competition involving national teams and which, in addition, do not involve a national team of the United Kingdom.
129. The foregoing conclusions are further confirmed by the fact that, according to the same survey, 33% of United Kingdom residents who occasionally watch football on television are interested in EURO matches not involving a national team of the United Kingdom, as compared with 56% who are interested in matches involving such a team. The percentages rise to 36% and 55% respectively when the sample is expanded to include those who never watch football on television and show that the Commission’s finding that all EURO matches have a special resonance with the general public is not vitiated by error.
130. Regarding the information on the viewing figures produced by UEFA concerning EURO 2004, it should be observed that the ‘non-gala’ matches attracted between 25.5% and 44.2% of all television viewers, with a maximum of 8.8 million viewers, whilst the corresponding percentages for matches involving the England national team are between 65.9% and 72.5%, with a maximum of 20.7 million viewers.
131. The data for EURO 2000 show a similar pattern, with ‘non-gala’ matches drawing between 25.7% and 49.6% of all television viewers, with a maximum of 9.7 million viewers, and matches involving the England national team attracting between 58.5% and 74.9% of all viewers, with a maximum of 16.9 million viewers.
132. The figures for EURO 1996, which are expressed in absolute numbers of viewers, show that ‘non-gala’ matches drew between 2.9 and 8.5 million viewers, whilst matches involving the England national team drew between 8.7 and 23.8 million viewers.
133. It should also be noted that, according to the same survey, the final of the 2007 Football Association Cup (FA Cup) drew approximately 10.1 million viewers.
134. Viewed both in the absolute and in relation to the percentages and viewing figures achieved by matches involving the England national team, but also to the viewing figures for the final of the 2007 FA Cup, the percentages and viewing figures for ‘non-gala’ matches confirm that those matches draw exceptionally large numbers of viewers in the United Kingdom, which can only be explained by the fact that they are included in the EURO fixture list. Those statistical data thus confirm the findings in paragraphs 103 and 124 above and support the position set out in recital 18 of the contested decision, to the effect that EURO matches, including ‘non-gala’ matches, have traditionally drawn large numbers of viewers. Therefore, even if the Commission did not take account of data subsequent to the year 2000, as UEFA maintains, that does not call in question the conclusions it reached on the basis of older information.
135. That analysis is not called into question by the allegedly particularly low viewing figures relied on by UEFA in respect of two matches from EURO 2004 and two matches from EURO 2008 (see paragraph 112 above). As pointed out by UEFA, three of the matches in question were played at the same time as other matches not involving a national team of the United Kingdom, which drew between 4.6 and 8.8 million viewers on free channels in the first category as established by the United Kingdom legislation. It follows that that argument does not show that the matches not involving a national team of the United Kingdom do not generally attract many viewers. As to the fourth match, between France and Switzerland, it was played at the same time as a match involving the England national team, which drew 18.2 million viewers, which clearly explains why it drew merely 4 000 viewers, especially when it was shown on an Internet channel, BBCi.
136. The argument to the effect that, if those ‘non-gala’ matches were of major importance for society, broadcasters would have broadcast them on their main channels, cannot succeed. It should be borne in mind, first, that the inclusion of those matches in the list of events of major importance for United Kingdom society is justified by the fact that the EURO as a whole may legitimately be regarded as such an event (see paragraph 103 above) and, second, that the inclusion of ‘non-gala’ matches in that list does not require them to be of equal importance as the ‘gala’ matches or matches involving the relevant national team (see paragraph 127 above). Furthermore, not all ‘non-gala’ matches need to be of major importance for United Kingdom society in order for the EURO to be legitimately included, in its entirety, in that Member State’s list of such events. Rather, it is sufficient that the characteristics described in paragraph 103 above concern some of the ‘non-gala’ matches, the number and participants of which cannot be known at the times when the list is drawn up and when broadcast rights are acquired, in order to justify not distinguishing between the different matches of the EURO in terms of their importance for society. Thus, in the light of the exceptional and understandable nature of the viewing figures for those specific matches (see paragraphs 134 and 135 above), the fact that BBC or ITV did not choose to broadcast them on one of their main channels does not affect the conclusion set out in paragraph 125 above.
137. Moreover, the finding in paragraph 134 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 UEFA (see paragraph 114 above). That recital states that international events tend to be more attractive for the public 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. In the vast majority of cases, the EURO does involve a national team of the United Kingdom. Even when, exceptionally, it does not, the absence of any United Kingdom national team in the EURO 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.
138. The fact that the United Kingdom adopted a different approach than that of other Member States, who included primarily ‘gala’ matches and matches involving their respective national teams in their lists, does not affect the foregoing assessments, which afforded a proper appraisal of the EURO in its entirety 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 might consider to be of major importance for their society (see paragraphs 51 and 52 above), different approaches about the inclusion of EURO matches in a national list may be equally compatible with that provision.
139. It follows that UEFA’s arguments, to the effect that the assessments in recitals 6 and 18 of the contested decision concerning the special resonance the EURO has for United Kingdom society as a whole and the number of viewers attracted by all EURO matches are vitiated by error, cannot succeed.
140. The same holds true for the argument alleging that, before the advent of pay television, all events were broadcast on free channels, with the result that the criterion relating to that argument is irrelevant. It should be observed that, even if pay television emerged well after free television, the fact that an event was traditionally broadcast on a free channel up to that point remains a relevant criterion. Even before the advent of pay television, many events were not broadcast on the free channels of the time, with the result that that criterion cannot be regarded as being automatically met today in respect of such an event. Moreover, 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 statement in defence, states that the EURO has traditionally been broadcast on free channels in the United Kingdom and that, since 1988, every EURO match has been broadcast live. As UEFA has not challenged this point, its argument about traditional broadcast of the EURO by free channels must be dismissed.
141. Given that UEFA’s arguments to the effect that the Commission erred in upholding the Secretary of State’s assessment that the EURO in its entirety constitutes an event of major importance for United Kingdom society must be rejected, so too must this plea.
The fifth plea: infringement of the Treaty provisions relating to freedom to provide services
– Arguments of the parties
142. UEFA submits that, as recognised in recital 19 of the contested decision, that decision deprives broadcasters established in other Member States of the possibility of broadcasting EURO matches live in the United Kingdom, with the result that it places a restriction on freedom to provide services. Although it is true that restrictions on that freedom may be justified by overriding reasons in the public interest, they must be compatible with the objectives of the Treaty, apply without discrimination and be proportionate. The burden of proof is with the party alleging that the restriction in question is justified.
143. In the present case, the United Kingdom list includes events such as matches not involving a national team of that Member State, which cannot be regarded as being of major importance for society. Therefore, the restriction on freedom to provide services arising from the inclusion of those matches on the United Kingdom list does not serve a public interest and is not compatible with the objectives of the Treaty.
144. Furthermore, the restrictions in issue also lead to de facto discrimination against broadcasters established in Member States other than the United Kingdom, since only three United Kingdom broadcasters, the BBC, ITV and Channel 4, are capable of qualifying for the first category. The legislation in question thus effectively shields those three operators from any competition from broadcasters established in other Member States. Yet experience has shown that such broadcasters can penetrate the United Kingdom market by acquiring television broadcast rights for football matches not included in the list of events of major importance for United Kingdom society.
145. UEFA also questions the proportionality of the measures taken by the United Kingdom on the ground that a number of EURO matches are not of major importance for United Kingdom society, with the result that the contested decision is also vitiated because it infringes the principle of proportionality. The disproportionate nature of the United Kingdom measures is exacerbated by the requirements imposed in order for broadcasters to qualify for the first category of broadcasters.
146. The Commission, supported by the interveners, disputes the merits of this plea.
– Findings of the Court
147. As recognised in recital 19 of the contested decision, 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.
148. As stated by UEFA, notwithstanding the fact that the legislation described in paragraphs 9 and 10 above applies without distinction to operators coming within both of the 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 EURO, thereby giving a competitor established in another Member State the opportunity to obtain authorisation from the Office of Communications to broadcast that event in practice on an exclusive basis (see paragraph 12 above), than the reverse situation.
149. Nevertheless, those restrictions on freedom to provide services 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 not go beyond what is necessary in order to attain it (see paragraphs 44 to 50 above).
150. In that regard, it must be borne in mind that UEFA disputes the lawfulness of the contested decision in the light of the Treaty provisions on freedom to provide services in so far as the Commission approves the inclusion of matches not involving a national team of the United Kingdom in the list of events of major importance for United Kingdom society. In UEFA’s submission, those matches do not qualify as such, with the result that the restriction on freedom to provide services is disproportionate.
151. However, UEFA’s argument suffers from 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 a restriction of a fundamental freedom guaranteed by the Treaty (see paragraphs 44 to 49 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 50 above).
152. Against that background, it should be observed that, as held in paragraphs 123 to 141 above, the EURO may legitimately be regarded as a single event of major importance for United Kingdom society, the viewing figures for matches not involving a national team of the United Kingdom 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 plea does not invalidate the Commission’s conclusion that the inclusion of all EURO matches in the list of events of major importance for United Kingdom society was appropriate and proportionate, given the unitary nature of the EURO.
153. The fifth plea in law must accordingly be rejected.
The fourth plea: infringement of the provisions of the Treaty on competition
– Arguments of the parties
154. UEFA submits that, in disregard of the directions given in Infront WM
v Commission, paragraph 14 above, the Commission did not conduct an assessment of the impact of the United Kingdom measures on competition. In fact, the wording of recital 20 of the contested decision (see paragraph 17 above) shows that the Commission did not even define the relevant market or markets. In that regard, UEFA observes that, further to Decision 2000/400, the acquisition of broadcast rights for certain major sporting events, such as the EURO, is a separate market. Yet the Commission did not consider whether the acquisition of the rights to broadcast the EURO live constitutes a separate upstream television market in which a number of broadcasters compete.
155. If it is recognised that such a market exists, the contested decision, and not Directive 89/552, will lead to a substantial reduction and distortion of competition in that market. UEFA states in that regard that the definition of broadcasters in the first category established by the United Kingdom legislation (see paragraph 9 above) has the effect in practice that only the BBC, ITV and Channel 4 can acquire the rights to broadcast EURO matches live, with the result that all their competitors operating pay channels are simply excluded from that market.
156. The United Kingdom measures therefore have the effect of placing those three broadcasters in a privileged position; and two of them have used it to the detriment of UEFA. The practical result of that situation is similar to granting special or exclusive rights within the meaning of Article 86(1) EC. What the United Kingdom legislation does in effect is to grant to a limited number of broadcasters, in this case broadcasters coming within the first category established by it, the possibility of acquiring live broadcast rights for the EURO in the United Kingdom and de facto
excludes pay channel operators from that procedure. The result is that there is only one potential purchaser of the broadcast rights for the EURO in the United Kingdom, since the BBC and ITV, the only operators to show interest, have traditionally submitted joint offers. Thus, the restrictive definition of broadcasters in the first category established by the United Kingdom legislation has the effect of reinforcing and encouraging the anti-competitive conduct of the broadcasters who are shielded from any competition from operators established in the United Kingdom or in other Member States, to the detriment of UEFA and consumers in the United Kingdom. In any event, broadcasters coming within the first category established by the United Kingdom legislation are in a joint dominant position in the market for the acquisition of rights to broadcast the EURO in the United Kingdom.
157. Moreover, recital 20 of the contested decision indicates that the Commission did not consider those effects on competition before finding that the United Kingdom measures are compatible with the Treaty provisions on competition. The Commission also ignored the views of the Director-General of the Office of Fair Trading, to the effect that the inclusion of an event in the list of events of major importance for society should be an exceptional measure, used only where clearly warranted, precisely because of the anti-competitive effects it would generate.
158. The Commission also erred in distinguishing, in recital 20 of the contested decision, between the free television market and the pay television market, ignoring the fact that both types of operators compete in order to acquire broadcasting rights, achieve better audiences and compete on the advertising market. This fact was recognised by the United Kingdom Competition Commission.
159. Those omissions become all the more glaring in the present case, where the Commission failed to take account of the evolution of the television market since the year 2000. Yet any competition analysis must take account of the situation as it exists at the time the Commission decision is adopted.
160. The Commission therefore erred in finding that the United Kingdom measures would not lead to a significant and disproportionate distortion of competition.
161. The Commission, supported by the interveners, disputes the merits of this plea.
– Findings of the Court
162. UEFA’s line of argument under this plea can be divided into two complaints.
163. The first complaint concerns the consequences resulting from the fact that, in light of the importance of the exclusivity of broadcasting rights for the EURO 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 UEFA’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 reduc tion in the number of broadcasters active on those markets. UEFA also complains that the Commission failed to define those markets and failed to explain its assessment of those restrictions.
164. 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 fifth plea, restrictions on freedom to provide services resulting from the inclusion of all EURO 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.
165. The second complaint concerns the special rights allegedly granted to the 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 UEFA’s submission, the market for broadcast rights for EURO matches.
166.
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).
167. 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.
168. 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 167 above, paragraphs 7, 23 and 25) or labour market requirements ( Becu and Others, paragraph 166 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; Case C‑260/89 ERT
[1991] ECR I‑2925, paragraph 37; GB-Inno-BM, paragraph 166 above, paragraph 25; and Case C‑49/07 MOTOE
[2008] ECR I‑4863, paragraph 43).
169. However, far from prohibiting itself or empowering the BBC, ITV or Channel 4 to prohibit any broadcaster from acquiring the broadcast rights for the EURO 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 9 and 10 above). It should be clarified that UEFA alleges, incorrectly, that the BBC and ITV are the only broadcasters which may acquire broadcast rights for the EURO for the United Kingdom. First, section 101 of the Broadcasting Act 1996 provides, essentially, for a prohibition on exclusive broadcasting. Next, as just stated, that prohibition applies equally to all broadcasters in both categories established by the United Kingdom legislation. Lastly, the prohibition in question 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.
170. 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 EURO matches.
171. 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 EURO 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 12 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 EURO.
172. The fourth plea in law must accordingly be rejected.
The sixth plea: infringement of UEFA’s property rights
– Arguments of the parties
173. UEFA observes that the right to property is guaranteed by the Community legal order as a general principle of Community law and enshrined in Article 17 of the Charter of Fundamental Rights of the European Union, proclaimed at Nice on 7 December 2000 (OJ 2000 C 364, p. 1). UEFA observes that the Member States are required to observe fundamental rights when implementing a Community provision such as Article 3a of the Directive.
174. In the present case, as the Commission and the Court acknowledged in Infront WM
v Commission, paragraph 14 above, the list approved by the Commission affects UEFA’s property rights, as it precludes the possibility of granting exclusive broadcast rights for the EURO, which reduces significantly the number of parties interested in such a transaction. Yet that restriction on UEFA’s property rights, which is moreover acknowledged by the Commission in the present case, was not justified, as the contested decision does not contain an analysis of the United Kingdom measures from this perspective.
175. Moreover, in the present case, the Commission authorised not only the inclusion of matches of major importance for United Kingdom society but also of all EURO matches, with the result that the measures in question are not the least restrictive in the light of the objective pursued.
176. The Commission, supported by the interveners, disputes the merits of this plea.
– Findings of the Court
177. It should be borne in mind that, as is common ground between the parties, UEFA is the organiser of the EURO within the meaning of recital 21 of Directive 97/36, so that any person wishing to exploit television broadcasting rights for that event must obtain those rights from UEFA or from a party who has obtained them from UEFA.
178. Thus, since the value of those rights is liable to be affected by the legal effects arising from the contested decision (see paragraphs 30 to 34 above), UEFA’s property right is also affected.
179. 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
[1991] 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.
180. 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).
181. It must be borne in mind in that regard that, for the reasons set out in paragraphs 123 to 141 above and contrary to UEFA’s submissions, the EURO may legitimately be regarded as a single event of major importance for United Kingdom society, the viewing figures relating to ‘non-gala’ matches confirming rather than invalidating the assessment in recitals 6 and 18 of the contested decision. In this context, as held in paragraph 152 above, the fact that the EURO is, by nature, a single event means that the Commission did not err in finding that the inclusion of all EURO matches in the United Kingdom list is a proportionate measure.
182. Accordingly, the complaint that the inclusion of ‘non-gala’ matches in the list of events of major importance for United Kingdom society is a disproportionate and intolerable interference with UEFA’s property rights on the ground that those matches are not such events is based on an incorrect assumption.
183. Furthermore, although the legislation in question is liable to affect the price which UEFA will obtain for grant of the rights to broadcast the EURO in the United Kingdom, it does not destroy the commercial value of those rights because, first, it does not oblige UEFA to sell them under whatever conditions it can obtain and, secondly, UEFA is protected against collusive and abusive practices by Community and national competition law. Accordingly, the Commission did not err in finding that the United Kingdom measures were proportionate.
184. The sixth plea in law must accordingly be rejected.
The seventh plea: infringement of the principle of proportionality
– Arguments of the parties
185. In UEFA’s submission, the Commission infringed the principle of proportionality laid down in Article 5 EC in approving the inclusion of all EURO matches in the list of events of major importance for United Kingdom society, whereas matches not involving a national team of that Member State do not qualify as such.
186. The Commission, supported by the interveners, disputes UEFA’s assertions in that regard.
– Findings of the Court
187. It must be borne in mind that any measure adopted for overriding reasons in the public interest and restricting the exercise of a fundamental freedom established by the Treaty must be proportionate to the objective it pursues (see paragraph 46 above). This plea also suffers from the confusion referred to in relation to the fifth plea (see paragraph 151 above).
188. It must be observed in that regard that, for the reasons set out in paragraphs 123 to 141 above and contrary to UEFA’s assertions, the EURO may legitimately be regarded as a single event of major importance for United Kingdom society, as the statistics for the ‘non-gala’ matches of the EURO and those not involving a national team of the United Kingdom confirm rather than invalidate the assessment referred to in recitals 6 and 18 of the contested decision.
189. Therefore, the complaint that the inclusion of the ‘non-gala’ matches of the EURO and those not involving a national team of the United Kingdom in the list of events of major importance for society of that Member State is disproportionate on the ground that those matches do not qualify as such is, at the very least, based on an incorrect assumption.
190. The seventh plea in law must accordingly be rejected.
The eighth plea: infringement of the principle of equal treatment
– Arguments of the parties
191. UEFA submits, within the framework of the present plea, that the contested decision gives rise to unequal or discriminatory treatment to its detriment in relation to the marketing of broadcasting rights for the EURO. The contested decision makes no reference to objective reasons justifying the inclusion of all EURO matches in the list of events of major importance for United Kingdom society, whereas other events clearly have a much greater resonance in the United Kingdom and yet have not been included in the list. Thus the Commission did not act consistently or rationally, with the result that its infringement of the principle of equal treatment leads to a distortion of competition and impedes the functioning of the common market.
192. The Commission, supported by the interveners, disputes the merits of this plea.
– Findings of the Court
193. It should be observed, first, that the principle of non-discrimination prohibits, first, treating similar situations differently and, secondly, treating different situations in the same way unless there are objective reasons for such treatment (Case C‑422/02 P Europe Chemi-Con (Deutschland)
v Council [2005] ECR I‑791, paragraph 33).
194. Next, it should be noted that Article 3a(1) of Directive 89/552 does not oblige the Member States to draw up a list of events of major importance for society; nor does it require them, should such a list be drawn up, to include an event in the list even if the event could legitimately have been included. In addition to stating that each Member State ‘may’ adopt measures attaining the objectives to which it refers, that provision gives concrete expression to the ability of the Member States to derogate from certain rules of the Treaty, such as those governing freedom to provide services. Where a selection is made from among a number of specific events of major importance for society for the purposes of Directive 97/36, the Member States may not be required, directly or indirectly, to include in their lists events other than the ones they choose to include, or to derogate from the Treaty any more than they wish to do. Furthermore, the Commission’s assessment under Article 3a(2) of Directive 89/552 as to the nature of the events included as events of major importance for society is conducted in relation to their own features and not in relation to the features of other events which have not been included.
195. Therefore, when an event is of major importance for the society of a Member State, the Commission does not infringe the principle of equal treatment if, in the review it carries out pursuant to Article 3a(2) of Directive 89/552, it does not oppose its inclusion in the list drawn up by the Member State in question on the ground that another event, possibly of greater importance for that society, is not included.
196. Thus even if there are other events, within the meaning of recital 21 of Directive 97/36, of greater importance for United Kingdom society than the EURO which are not included in the list drawn up by the Secretary of State, the Commission did not infringe the principle of equal treatment in accepting the inclusion of the EURO in that list.
197. It has, moreover, been held above that the EURO may legitimately be regarded as a single event of major importance for United Kingdom society, as the statistics for the ‘non-gala’ matches of the EURO and those not involving a national team of the United Kingdom confirm rather than invalidate the assessment referred to in recitals 6 and 18 of the contested decision (see paragraphs 123 to 141 above).
198. Contrary, therefore, to UEFA’s assertions, the Commission did not act inconsistently or irrationally and did not infringe the principle of equal treatment.
199. The eighth plea in law must accordingly be rejected.
Consideration of UEFA’s request for measures of organisation of procedure
200. The assessments of the various pleas put forward by UEFA mean that it is not necessary to adopt the measures of organisation of procedure requested by it (see paragraph 19 above).
201. In that regard, it should be observed that, as was held in the course of the examination of the pleas put forward by UEFA, none of the arguments in support of which UEFA 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.
202. In those circumstances, the request for measures of organisation of procedure must be rejected and the action as a whole must be dismissed.
Costs
203. 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 UEFA has been unsuccessful, it must be ordered to pay the costs in accordance with the form of order sought by the Commission.
204. 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 Union des associations européennes de football (UEFA) to bear its own costs and to pay those incurred by the European Commission;
3. Orders the Kingdom of Belgium and the United Kingdom of Great Britain and Northern Ireland to bear their own costs.