Fédération internationale de football association (FIFA) v European Commission.

• Jurisdiction: European Union
• ECLI: ECLI:EU:T:2011:44
• Court: General Court (European Union)
• Docket Number: T-68/08
• Date: 17 February 2011
• Celex Number: 62008TJ0068
• Procedure Type: Recurso de anulación - infundado

Case T-68/08

Fédération internationale de football association (FIFA)

v

European Commission

(Television broadcasting – Article 3a of Directive 89/552/EEC – Measures taken by the United Kingdom concerning events of major importance to United Kingdom society – Football World Cup – Decision declaring the measures compatible with Community law – Statement of reasons – Articles 43 EC, 49 EC and 86 EC – Right to property)

Summary of the Judgment

1. Actions for annulment – Natural or legal persons – Measures of direct and individual concern to them – Whether directly concerned – Commission decision declaring national measures adopted pursuant to Article 3a of Directive 89/552 compatible with Community law – No discretion for Member States – Action brought by the original holder of the broadcasting rights to an event covered by that decision – Whether directly concerned

(Art. 263, fourth para., TFEU; Council Directive 89/552, Art. 3a; Commission Decision 2007/730)

2. Actions for annulment – Natural or legal persons – Measures of direct and individual concern to them – Possibility of being individually concerned by a general decision – Conditions – Commission decision declaring national measures adopted pursuant to Article 3a of Directive 89/552 compatible with Community law – Action brought by the original holder of the broadcasting rights to an event covered by that decision – Applicant identifiable at the time of adoption of that decision – Applicant individually concerned

(Art. 263, fourth para., TFEU; Council Directive 89/552, Art. 3a; Commission Decision 2007/730)

3. Freedom to provide services – Television broadcasting activities – Directive 89/552 – Possibility for Member States to impose restrictions on the exercise of fundamental freedoms established by European Union law – Justification – Guarantee of right to information

(European Parliament and Council Directive 97/36, recitals 18 and 21; Council Directive 89/552, Art. 3a(1))

4. Freedom to provide services – Television broadcasting activities – Directive 89/552 – Events of major importance

(European Parliament and Council Directive 97/36, recital 18; Council Directive 89/552, Art. 3a)

5. Freedom to provide services – Television broadcasting activities – Directive 89/552 – National procedures for determining events of major importance for society

(Council Directive 89/552, Art. 3a(1))

6. Freedom to provide services – Freedom of establishment – Restrictions – Justification on grounds of overriding reasons of public interest – Assessment in the light of general principles of law – Measures infringing fundamental rights not acceptable

(Arts 46 EC and 55 EC)

7. Freedom to provide services – Television broadcasting activities – Directive 89/552 – Restrictions imposed by a Member State justified on grounds of overriding reasons of public interest and in keeping with the principle of proportionality – Indirect effect on competition

(Council Directive 89/552)

1. The mechanism of mutual recognition, provided for by Article 3a(3) 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, triggered by a Commission decision declaring measures taken by a Member State in accordance with Article 3a(1) thereof compatible with Community law, creates an obligation for the Member States to safeguard the legal consequences of those measures. The Member States must, in particular, ensure that television broadcasters under their jurisdiction comply with the conditions which govern the television broadcasting in the Member State in question of the events of major importance for society included in the list of that Member State, as defined by it in its measures which have been approved and published in the Official Journal of the European Union. The obligation to achieve that result has a direct adverse effect on the legal position of the television broadcasters under the jurisdiction of Member States other than the Member State which adopted the measures and which wishes to purchase broadcasting rights for that Member State originally held by the organiser of an event. It follows that such a decision directly affects the legal position of organisers of such events in respect of the rights originally held by them and does not leave any discretion to the Member States as to the result to be obtained, which is imposed automatically and results from the Community rules alone, irrespective of the content of the specific mechanisms which the national authorities put in place to attain that result. Such a decision is therefore of direct concern to the organisers.

(see paras 35-38)

2. Persons other than those to whom a decision is addressed may claim to be individually concerned only if that decision affects them by reason of certain attributes which are peculiar to them or by reason of circumstances in which they are differentiated from all other persons and by virtue of these factors distinguishes them individually just as in the case of the person addressed by such a decision.

Irrespective of the legal nature and the source of the broadcasting rights for the final stage of the football World Cup, it is an event for the purposes of recital 21 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, in that it is organised in advance by an organiser legally empowered to sell those rights and that that situation also held true at the time of adoption of Commission Decision 2007/730 on the compatibility with Community law of measures taken by the United Kingdom pursuant to Article 3a(1) of Directive 89/552. That organiser was perfectly identifiable at the time of adoption of that decision, which is therefore of individual concern to it.

(see paras 39-42)

3. Article 3a(1) 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 gave concrete expression to the possibility for the Member States to restrict the exercise, in the audiovisual field, of fundamental freedoms established by primary Community law, on the basis of overriding reasons in the public interest.

Freedom of expression, as protected by Article 10 of the European Convention on Human Rights, is one of the fundamental rights guaranteed by the Community legal order and is an overriding reason in the public interest which is capable of justifying such restrictions. Under Article 10(1) of the ECHR, freedom of expression also includes the freedom to receive information.

However, as is apparent from recital 18 in the preamble to Directive 97/36 amending Directive 89/552, the measures contemplated in Article 3a of Directive 89/552 are intended to protect the right to information and to ensure wide public access to television broadcasts of national or non-national events of major importance for society. Recital 21 in the preamble to Directive 97/36 states that an event is of major importance when it is outstanding, is 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 is organised in advance by an event organiser who is entitled to sell the rights pertaining to that event.

It follows that, since they relate to events which are of major importance for society, the measures contemplated in Article 3a(1) of Directive 89/552 are justified by overriding reasons in the public interest. Those measures must also be appropriate for attaining the objective which they pursue and not go beyond what is necessary in order to attain it.

(see paras 48, 51-54)

4. 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, to which recital 18 in the preamble to Directive 97/36 amending Directive 89/552 refers, does not effect a harmonisation of specific events which Member States may consider to be of major importance for society. It follows that recital 18 in the preamble to Directive 97/36 cannot be construed as meaning that the inclusion of the World Cup in a national list of events of major importance for society is automatically compatible with Community law. A fortiori, that recital cannot be understood as indicating that the World Cup may, in any event, be validly included in its entirety in such a list, irrespective of the interest in World Cup matches in the Member State concerned.

Even though there is no harmonisation of specific events which a Member State may consider to be of major importance for its society, the reference to the World Cup in recital 18 in the preamble to Directive 97/36 means that the Commission cannot consider the inclusion of World Cup matches in a list of events to be contrary to Community law on the ground that the Member State concerned did not notify it of the specific reasons justifying their importance for society. However, any finding by the Commission that the inclusion of the entire World Cup in a list of events of major importance for the society of a Member State is compatible with Community law, on the ground that the World Cup is, by its nature, legitimately regarded as a single event, may be called into question on the basis of specific factors showing that the ‘non‑prime’ matches are not of such importance for the society of that Member State.

(see paras 55-56, 113)

5. The procedures put in place by the Member States under Article 3a(1) of Directive 89/552 on the coordination of certain provisions laid down by law, regulation or administrative action in Member...