Judgments nº T-68/08 of The General Court, February 17, 2011

• Resolution Date: February 17, 2011
• Issuing Organization: The General Court
• Decision Number: T-68/08

In Case T‑68/08,

Fédération Internationale de Football Association (FIFA), established in Zurich (Switzerland), represented initially by E. Batchelor, F. Young, Solicitors, A. Barav, D. Reymond, lawyers and F. Carlin, Barrister, and subsequently by E. Batchelor, A. Barav, D. Reymond, lawyers and F. Carlin, Barrister,

applicant,

v

European Commission, represented initially by F. Benyon, E. Montaguti and N. Yerrell, and subsequently 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 and A. Joachimowicz, lawyers,

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 initially by T. de la Mare and subsequently by 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

Legal context

1 Article 43 EC is worded as follows:

‘Within the framework of the provisions set out below, restrictions on the freedom of establishment of nationals of a Member State in the territory of another Member State shall be prohibited. Such prohibition shall also apply to restrictions on the setting-up of agencies, branches or subsidiaries by nationals of any Member State established in the territory of any Member State.

Freedom of establishment shall include the right to take up and pursue activities as self-employed persons and to set up and manage undertakings, in particular companies or firms within the meaning of the second paragraph of Article 48 [EC], under the conditions laid down for its own nationals by the law of the country where such establishment is effected, subject to the provisions of the chapter relating to capital.’

2 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.’

3 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]’.

4 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 [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 Member 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.’

   5 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

   6 The applicant, the Fédération Internationale de Football Association (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 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 United Kingdom society, including 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 contained in a document from the Ministry of Culture, Media and Sports dated November 1997, which the Secretary of State uses 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...