4

The background to the dispute was set out by the General Court in paragraphs 6 to 16 of the judgment under appeal, as follows: ‘6 [FIFA] is an association of 208 national football associations and is the world governing body of football. Its objectives are, inter alia, to promote football globally and to organise its international competitions. FIFA’s primary source of income is the sale of television broadcasting rights to the finals of the football World Cup (“[the final stage of] the World Cup”), which it organises. 7 By decision of 25 June 1998, the Secretary of State for Culture, Media and Sports of the United Kingdom of Great Britain and Northern Ireland (“the Secretary of State”), acting pursuant to Part IV of the Broadcasting Act 1996, drew up a list of events of major importance for the society of that Member State, including [the final stage of] the World Cup. 8 The adoption of that list was preceded by a consultation of 42 different bodies launched by the Secretary of State in July 1997 concerning the criteria in the light of which the importance of various events for United Kingdom society was to be assessed. That procedure led to the adoption of a list of criteria contained in a document from the Ministry of Culture, Media and Sports dated November 1997, which the Secretary of State was to apply for the purpose of drawing up a list of events of major importance for United Kingdom society. According to that document, an event is particularly liable to be included in the list when it has a special national resonance, not simply a significance to those who ordinarily follow the sport concerned. According to that same document, in order to qualify as such, a national or international sport must be pre-eminent or involve the national team or athletes from the United Kingdom. Of the events which fulfil those criteria, those which command large television audiences or which are traditionally broadcast live on free television channels stand a greater chance of being included in the list. For the purposes of the assessment, the Secretary of State also takes into account other factors relating to the consequences for the sport concerned, such as the suitability of live broadcasting of an event in its entirety, the impact on income for the sport in question, the consequences for the broadcasting market and whether there are arrangements to ensure that access to the event is available by means of delayed coverage or radio commentary. 9 Subsequently, the Secretary of State launched a consultation procedure pursuant to section 97 of the Broadcasting Act 1996 concerning which specific events to include in the list. During that consultation procedure, the Secretary of State sought the views of a number of bodies and interested parties and of holders of television broadcasting rights, such as FIFA. Moreover, the Advisory Group on listed events, established by the Secretary of State, delivered its opinion on the events to be included, proposing with respect to [the final stage of] the World Cup the inclusion of the final, the semi-finals and matches involving the national teams of the United Kingdom. 10 Under section 98 of the Broadcasting Act 1996, as amended by the Television Broadcasting Regulations 2000, broadcasters are divided into two categories. The first category includes broadcasters providing a free service which, in addition, can be received by at least 95% of the population of the United Kingdom [“broadcasters operating free television channels”]. The second category includes broadcasters which do not fulfil those conditions [and covers, inter alia, broadcasters operating pay television channels]. 11 Moreover, under section 101 of the Broadcasting Act 1996, as amended by the Television Broadcasting Regulations 2000, a television programme provider coming within one of those categories can broadcast live all or part of an event included in the list only if a provider coming within the other category can broadcast live, in whole or in part, the same event in the same, or essentially the same, region. If that condition is not fulfilled, a broadcaster wishing to broadcast all or part of the event in question must obtain prior authorisation from the Office of Communications. 12 According to section 3 of the Code on Sports and Other Listed and Designated Events, as in force in 2000, the events included in the list of events of major importance for society are divided into two groups. “Group A” includes events which cannot be covered live on an exclusive basis if certain criteria are not met. “Group B” includes events which may be broadcast live on an exclusive basis only if arrangements have been made to ensure deferred broadcast. 13 Under section 13 of the Code on Sports and Other Listed and Designated Events, an authorisation may be granted by the Office of Communications for listed “Group A” events, which includes [the final stage of] the World Cup, where the relevant broadcasting rights have been openly offered on equitable and reasonable terms to all television broadcasting bodies and no body in the other category has expressed its interest in acquiring them. 14 By letter of 25 September 1998, the United Kingdom provided the Commission of the European Communities with the list of events drawn up by the Secretary of State, as required by Article 3a(2) of Directive 89/552, together with other information concerning the United Kingdom legislation adopted pursuant to Article 3a(1) of the same Directive. Following an exchange of correspondence between the United Kingdom and the Commission and a fresh notification of measures on 5 May 2000, the Director-General of the Directorate-General (DG) Education and Culture informed the United Kingdom, by letter of 28 July 2000, that the Commission would not raise objections to the United Kingdom measures, which would, accordingly, be published shortly thereafter in the Official Journal of the European Communities. 15 By judgment of 15 December 2005 in Case T-33/01 Infront WM v Commission [2005] ECR II-5897, the General Court annulled the decision contained in the letter of 28 July 2000, on the ground that it constituted a formal decision within the meaning of Article 249 EC that the College of Commissioners itself ought to have adopted (Infront WM v Commission, paragraph 178). 16 Following [that judgment], the Commission adopted [the contested decision].’