Fédération internationale de football association (FIFA) v European Commission.
Date: 2013-07-18
13. The legitimacy of pursuing such an objective has also been recognised by the Court, which has stated that the marketing on an exclusive basis of events of high interest to the public is liable to restrict considerably the access of the general public to information relating to those events. However, in a democratic and pluralistic society, the right to receive information is of particular importance, and its importance is all the more evident in the case of such events (see Case C‑283/11 Sky Österreich  [2013] ECR I‑0000, paragraphs 51 and 52).
21. First, it is apparent from the significance of the discretion accorded to the Member States, referred to in paragraph 14 above, that the Commission’s power of review must be limited to determining whether the Member States have committed any manifest errors of assessment in designating events of major importance. In order to verify whether such an error of assessment has been committed, the Commission must therefore, inter alia, examine, carefully and impartially, all the relevant facts of the individual case, facts which support the conclusions reached (see, by analogy, Case C‑269/90 Technische Universität München  [1991] ECR I‑5469, paragraph 14, and Case C‑77/09 Gowan Comércio Internacional e Serviços  [2010] ECR I‑13533, paragraphs 56 and 57).
44. In that regard, it is apparent from the case‑law of the Court of Justice that 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, to that effect, Case C‑367/95 P Commission  v Sytraval and Brink’s France  [1998] ECR I‑1719, paragraph 47, and Case C‑352/09 P ThyssenKrupp Nirosata  v Commission  [2011] ECR I‑2359, paragraph 136).
46. In that regard, the Court points out that, 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, by analogy, the judgment of 29 March 2012 in Case C ‑505/09 P Commission  v Estonia  [2012] ECR I‑0000, paragraph 67).
54. It that regard, the Court points out that such a head of claim was not raised at first instance. Before the General Court, FIFA merely criticised the grounds of the contested decision, claiming that the decision was silent on the nature and the date of the information relating to the ‘United Kingdom media landscape’ as taken into account by the Commission. FIFA thus did not criticise the Commission’s supposedly inadequate review, which is a head of claim relating to the substance of the case. In accordance with settled case-law, to allow a party to put forward for the first time before the Court of Justice a plea in law which it has not raised before the General Court would in effect allow that party to bring before the Court a wider case than that heard by the General Court. In an appeal, the Court’s jurisdiction is, as a general rule, confined to a review of the assessment by the General Court of the pleas argued before it (see the judgment of 19 July 2012 in Joined Cases C‑628/10 P and C‑14/11 P Alliance One International and Standard Commercial Tobacco  v Commission and Commission  v Alliance One International and Others [2012] ECR I‑0000, paragraph 111 and the case‑law cited). Consequently, the head of claim referred to above must be dismissed as inadmissible.
60. In so far as concerns the first and second parts of the first ground of appeal, the Court notes that 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 (see, to that effect, the order of 29 November 2011 in Case C‑235/11 P Evropäiki Dynamiki  v Commission [2011] ECR I‑0000, paragraphs 29 and 30, and the judgment of 19 December 2012 in Case C‑314/11 P Commission  v Planet [2012] ECR I‑0000, paragraphs 63 and 64).
64. In order to respond to the fourth part of the first ground of appeal, the Court notes that the contested decision and the national measures annexed to it set out the reasons why the matches in the final stage of the World Cup, in their entirety, were designated as an event of major importance. Thus, given that acts of the European Union institutions are presumed to be lawful (Case C‑177/06 Commission  v Spain  [2007] ECR I‑7689, paragraph 36), and having regard to the limited review carried out by the Commission and the General Court, it was for FIFA to dispute those reasons before the General Court and to demonstrate that the Commission should have concluded that the United Kingdom had committed a manifest error in including all of those matches in the list of events of major importance. Moreover, FIFA has unsuccessfully tried to challenge those reasons (see paragraphs 55 to 58 above).
66. As regards the fifth part of the first ground of appeal, the Court notes that FIFA has not set out the precise reasons why it considers that the General Court went beyond the judicial review which it is required to exercise. Moreover, it has not stated the precise paragraphs of the judgment under appeal containing the grounds which it criticises. In accordance with the Court’s settled case law, that part must be rejected as inadmissible (see Case C‑202/07 P France Télécom  v Commission [2009] ECR I‑2369, paragraph 55, and the order of 2 February 2012 in Case C‑404/11 P Elf Aquitaine  v Commission  [2012] ECR I‑0000, paragraph 15).
72. As regards the second part of the second ground of appeal, the Court points out that the obligation of clarity and transparency, laid down in the third sentence of Article 3a(1) of Directive 89/552, transposes the Court’s case‑law which seeks to prevent conduct on the part of the competent national authorities from negating the effectiveness of provisions of European Union law relating to a fundamental freedom. In the light of that case‑law, the designation of an event as being of major importance must be made in accordance with objective criteria known in advance, so as to limit the discretion vested in the Member States so that it is not exercised arbitrarily (see, by analogy, Case C‑250/06 United Pan-Europe Communciations Belgium and Others  [2007] ECR I‑11135, paragraphs 45 and 46).
78. In so far as concerns the reasons why such advice was not followed by that authority, it is true that, as is required of the European Union institutions when adopting measures (see Case C‑413/06 P Bertelsmann and Sony Corporation of America  v Impala  [2008] ECR I‑4951, paragraph 166), that authority must disclose the reasons for designating an event as one of major importance in such a way as, on the one hand, to make the persons concerned aware of the reasons for the measure and thereby enable them to defend their rights and, on the other, to enable the Commission and the competent Courts to exercise their power of review.
89. As regards the first part of the third ground of appeal, it is settled case‑law of the Court of Justice that the General Court is not required to address exhaustively and one by one all the arguments put forward by the parties to the case. Consequently, the reasoning may be implicit on condition that it enables the persons concerned to know why the General Court has not upheld their arguments and provides the Court of Justice with sufficient material for it to exercise its power of review. In particular, the General Court is not required to respond to the arguments of a party which are not sufficiently clear and precise, in that they have not been expanded upon or accompanied by a specific line of argument intended to support them (see, to that effect, Joined Cases C‑120/06 P and C‑121/06 P FIAMM and Others  v Council and Commission  [2008] ECR I‑6513, paragraphs 91 and 96, and Case C‑263/09 P Edwin  v OHIM  [2011] ECR I‑0000, paragraph 64).
95. In so far as concerns the second part of the third ground of appeal, the Court points out that, in the context of the review of legality provided for in Article 263 TFEU, the General Court cannot substitute its own reasoning for that of the author of the contested act and cannot fill, by means of its own reasoning, a gap in the reasoning in that act in such a way that its examination does not relate to any assessment carried out in that act (see, to that effect, Case C‑73/11 P Frucona Košice  v Commission  [2013] ECR I‑0000, paragraphs 87 to 90 and the case‑law cited).