4

The background to the dispute was set out by the General Court in paragraphs 5 to 17 of the judgment under appeal, as follows: ‘5 [FIFA] is an association of 208 national football associations and is the world governing body of football. Its objectives are, inter alia, to promote football globally and to organise its international competitions. The applicant’s primary source of income is the sale of television broadcasting rights to the finals of the football World Cup (“[the final stage of] the World Cup”), which it organises. 6 In Belgium, the Flemish Community and the French Community are competent to adopt measures for the purposes of Article 3a of Directive 89/552. Thus, the authorities of each community adopted separate measures, which were then notified to the Commission of the European Communities by the Belgian federal authorities. 7 Under Article 76(1) of the Decrees relating to radio broadcasting and television (décrets relatifs à la radiodiffusion et à la télévision), consolidated on 25 January 1995, which were adopted by the Flemish Council (Moniteur belge of 30 May 1995, p. 15092), “the Flemish Government shall draw up a list of events considered to be of major importance for the public and which, for this reason, may not be broadcast on an exclusive basis so that a substantial proportion of the public of the Flemish Community cannot watch them live or deferred on free television”. 8 By Order of 28 May 2004 (Moniteur belge of 19 August 2004, p. 62207), the Flemish Government designated the events to be regarded as of major importance for society, including the World Cup. In order for an event to be eligible for inclusion in the list of events of major importance for society, it must, under the terms of that order, fulfill at least two of the following criteria: — have great topical value and attract considerable public interest; — take place in the context of an important international competition or be a competition in which the national team, a Belgian club team or one or more Belgian athlete(s) is/are taking part; — belong to an important sporting discipline and represent an important cultural asset to the Flemish Community; — be broadcast traditionally by free television and have a high viewer rating for its category. 9 Under Article 1 of the Order of 28 May 2004, certain events included in the list, including [the final stage of] the World Cup, must be broadcast via whole live coverage. Under Article 2 of the order, the exclusive rights over the events included in the list may not be exercised in such a way as to prevent a substantial proportion of the population from following those events on free television. Moreover, under the second paragraph of Article 2, a substantial proportion of the population of the Flemish Community is considered to be able to follow an event of major importance for society on free television when the event is broadcast by a television station transmitting in the Dutch language and can be received by at least 90% of the population without any payment in excess of the television distribution subscription price. 10 Under Article 3 of the Order of 28 May 2004, television broadcasters which do not satisfy the requirements of Article 2 thereof and which acquire exclusive broadcasting rights in the Dutch-speaking region and the bilingual Brussels Capital region for the events included in the list may not exercise those rights unless they can guarantee, on the basis of contracts concluded, that a substantial proportion of the population will not be prevented from following those events on free television. To that end, the broadcasters in question may grant sub-licenses, at reasonable market prices, to broadcasters which fulfill those conditions. If, however, no broadcaster fulfilling the conditions in question declares itself willing to take such sub-licenses, the broadcaster having acquired exclusive rights may make use of them. 11 Under Article 4(1) of the Decree of 27 February 2003 (Moniteur belge of 17 April 2003, p. 19637), adopted by the Parliament of the French Community, the Government of the French Community may, after consulting the Conseil supérieur de l’audiovisuel (Broadcasting Authority), adopt a list of events which it considers to be of major importance for the public of that community. Such events may not be subject to the exercise of exclusive rights by a television broadcaster or by the RTBF in such a way as to deprive a substantial proportion of the public in that community of access to these events via a free television service. 12 In order for an event to be eligible for inclusion in the list of events of major importance for society, it must, under Article 4(2) of the Decree of 27 February 2003, fulfill at least two of the following criteria: — be particularly popular with the public of the French Community in general, not just those who follow such events as a matter of course; — have a cultural importance generally recognised by the public of the French Community and be part of that community’s cultural identity; — involve a Belgian personality or team participating in the event concerned in the context of a competition or event of international importance; — be traditionally broadcast in a program of a free television service in the French Community and attract a wide public. 13 Under Article 4(3) of the decree, a television broadcasting service is considered to be “free” if it broadcasts in the French language and can be received by 90% of households with television reception equipment that are located in the French speaking region or the bilingual Brussels-Capital region. Apart from the technical costs, reception of this service cannot be subject to payment other than the subscription price for the basic cable package. 14 Under Article 2 of the Order of 8 June 2004 (Moniteur belge of 6 September 2004, p. 65247), adopted by the Government of the French Community, “[a] television broadcaster service in the French Community intending to exercise the exclusive broadcasting rights it holds to an event of major importance must broadcast it on a free television service in accordance with the Annex to this Order”. 15 The annex to the Order of 8 June 2004 and the consolidated list of events of major importance for the Kingdom of Belgium include [the final stage of] the World Cup, live and in full. 16 By letters of 15 January 2001 and 16 May 2002, FIFA submitted its observations to the ministry of the Flemish Community concerning the possible inclusion of [the final stage of] the World Cup in a list of events of major importance for Belgian society, expressing opposition to the inclusion of the entire World Cup in such a list. 17 By letter of 10 December 2003, the Kingdom of Belgium notified the Commission of the measures taken pursuant to Article 3a of Directive 89/552.’