Case C-204/11 P

Fédération internationale de football association (FIFA)

v

European Commission

‛Appeal — Television broadcasting — Directive 89/552/EEC — Article 3a — Measures taken by the Kingdom of Belgium concerning events of major importance for the society of that Member State — Football World Cup — Decision declaring the measures compatible with EU law — Statement of reasons — Articles 43 EC and 49 EC — Right to property’

Summary — Judgment of the Court (Third Chamber), 18 July 2013

Freedom to provide services — Television broadcasting activities — Directive 89/552 — Events of major importance — Final stage of the football World Cup — National legislation implicitly prohibiting the exclusive broadcasting of that event by pay television channels — Infringement of the property rights of the Fédération internationale de football — Justification based on grounds in the general interest — Commission’s power of supervision — Limits

Appeals — Grounds — Mistaken assessment of the facts — Inadmissibility — Review by the Court of Justice of the assessment of the facts put before the General Court — Possible only where the clear sense of the evidence has been distorted

Actions for annulment — Jurisdiction of the European Union judicature — Scope — Power of the General Court to substitute the grounds of the author of the contested act for its own grounds — Not included

Acts of the institutions — Statement of reasons — Obligation — Scope — Decision which forms part of circumstances known to the interested party and enabling it to understand the scope of the measure taken in relation to it — Whether a summary statement of reasons is sufficient

Freedom to provide services — Television broadcasting activities — Directive 89/552 — Determination of events of major importance for society — Competence of the Member States — Supervision by the Commission — Succinct but relevant grounds provided by a Member State as to the designation of an event as being of major importance — Lawfulness — Power of the Commission to make a request for clarification to the Member State concerned

Freedom to provide services — Television broadcasting activities — Directive 89/552 — Events of major importance — Reasons enabling the final stage of the football World Cup to be regarded as being of major importance in the specific context of the society of a Member State — Obligation on that Member State to communicate those reasons to the Commission

Freedom to provide services — Television broadcasting activities — Directive 89/552 — Events of major importance — Meaning — Limitation to only the final stage of the football World Cup — No such limitation — Event divisible into different matches or stages, not all of which are capable of being characterised as an event of major importance

Freedom to provide services — Television broadcasting activities — Directive 89/552 — Determination of events of major importance for society — Competence of the Member States — Supervision by the Commission — Limited to manifest errors of assessment — Examination of the effects going beyond inevitable obstacles to the principles of the Union

It is for the Member States alone to determine the events which are of major importance; they have a broad discretion in that respect. Instead of harmonising the list of such events, Directive 89/552 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities is based on the premiss that considerable social and cultural differences exist within the European Union in so far as concerns their importance for the general public. Given the relatively imprecise nature of the criteria for assessing whether an event is of major importance for society, it is for each Member State to give substance to the criteria and to assess the interest of the general public in the events concerned, taking account of the social and cultural particularities of society in that Member State. (see paras 13, 14, 16)

The Commission’s power of review of the legality of national measures designating events as being of major importance, provided for in Article 3a of Directive 89/552 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities must, in the light of the broad discretion of the Member States in that respect, be limited to determining whether the Member States have committed any manifest errors of assessment in designating events as being of major importance. As regards, more specifically, the question whether the designation of the event concerned as an event of major importance is compatible with the general principles of EU law, such as the principles of proportionality and non-discrimination, with fundamental rights, the principles of the freedom to provide services and the freedom of establishment, and the rules on free competition, it is undeniable that a valid designation of an event as being of major importance leads to inevitable obstacles to the freedom to provide services, the freedom of establishment, the freedom of competition and the right to property, obstacles which the EU legislature has considered and regards as justified by the objective in the general interest of protecting the right to information and ensuring wide access by the public to television coverage of those events. In order to ensure the effectiveness of Article 3a of Directive 89/552, if an event has validly been designated by the Member State concerned as being of major importance, the Commission is required to examine only the effects of that designation on the freedom to provide services, the freedom of establishment, the freedom of competition and the right to property which exceed those which are intrinsically linked to the inclusion of that event in the list provided for in Article 3a(1). (see paras 17, 18, 20-22)

The EU legislature did not intend to specify that the football World Cup, within the meaning of recital 18 in the preamble to Directive 97/36, amending Directive 89/552 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities, is limited to only the final stage and that it constitutes a single and indivisible event. On the contrary, the World Cup must be regarded as an event which is, in principle, divisible into different matches or stages, not all of which are necessarily capable of being characterised as an event of major importance (see para. 34)

Given that the final stage of the football World Cup cannot validly be included in its entirety in a list of events of major importance irrespective of the interest generated by the individual matches in the Member State concerned, that State is not freed from its obligation to communicate to the Commission the reasons justifying the designation, in the specific context of the society of the Member State concerned, of the final stage of the World Cup as a unique event which must be regarded in its entirety as being of major importance for that society, rather than a compilation of individual events divided into matches of different levels of interest. (see para. 40)

An error of law committed by the General Court does not invalidate the judgment under appeal if its operative part is well founded on other legal grounds. (see paras 43, 58)

For the Commission to be able to exercise its power of review, the statement of reasons which led a Member State to designate an event as being of major importance, within the meaning of Article 3a of Directive 89/552 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities, may be succinct, so long as it is appropriate. Thus, it cannot be required, in particular, that the Member State provide, in the actual notification of the measures concerned, detailed information and figures regarding each element or part of the event which has been notified to the Commission. In that regard, if the Commission has doubts, on the basis of the evidence at its disposal, in relation to the designation of an event as one of major importance, it is required to seek clarification from the Member State which designated the event as such. (see paras 44, 45)

See the text of the decision. (see paras 54, 82, 86)

The question whether the grounds of a judgment of the General Court are incoherent is indeed a question of law which may be raised on appeal, since the statement of the reasons on which a judgment is based must clearly and unequivocally disclose the General Court’s reasoning. However, the obligation that the statement of the reasons must be coherent does not constitute an objective in itself, but seeks to enable the persons concerned to ascertain the reasons for the decision taken. Since, after having concluded that the findings of the General Court were erroneous, the Court of Justice then substituted grounds which justify the decision taken, the grounds of the General Court no longer constitute the basis for the decision taken. (see paras 59-62)

See the text of the decision. (see para. 65)

See the text of the decision. (see paras 66, 76)

See the text of the decision. (see paras 79, 80)

See the text of the decision. (see para. 85)