Hof van Jusititie: WK/EK wedstrijden niet achter decoder, maar moeten op open net. Geen exclusieve verkoop rechten door UEFA/FIFA aan betaalzenders

The full text of the judgments: (C-201/11 P, C-204/11 P and C-205/11 P)

The Court of Justice dismisses the appeal brought by FIFA and UEFA against the judgments of the General Court on television broadcasts of the World Cup and the EURO.

Although those judgments are vitiated by errors of law, those errors did not have any impact in the present cases The directive concerning the pursuit of television broadcasting activities (Council Directive 89/552/EEC of 3 October 1989 amended Directive 97/36/EC) authorises the Member States to prohibit the exclusive broadcasting of events which they deem to be of major importance for society, where such broadcasts would deprive a substantial proportion of the public of the possibility of following those events on free television.

The Fédération internationale de football association (FIFA) organises the final stage of the football World Cup (‘the World Cup’) and the Union des associations européennes de football (UEFA) organises the final stage of the European football championship (‘the EURO’). Sales of television broadcasting rights for those competitions make up a significant part of their revenues.

Belgium and the United Kingdom each drew up a list of the events they regarded as being of major importance for society in their respective states. Those lists contained, inter alia, in the case of Belgium, all the matches in the final stage of the World Cup and, in the case of the United Kingdom, all the matches in the final stage of the World Cup and the EURO. Those lists were sent to the Commission, which decided that they were compatible with European Union law.

FIFA and UEFA challenged those decisions before the General Court, arguing that not all those matches could constitutes events of major importance for the general public in those States. The General Court dismissed their actions, Judgments of 17 February 2011 in Cases T-385/07, T-55/08 and T-68/08 FIFA and UEFA v Commission,which led them to lodge appeals before the Court of Justice.

In today’s judgments, the Court of Justice notes, first of all, that the designation by a Member State of certain events as being of major importance for society and the prohibition on their exclusive broadcasting constitute obstacles to the freedom to provide services, the freedom of

establishment, the freedom of competition and the right to property. However, such obstacles are justified by the objective of protecting the right to information and ensuring wide public access to television coverage of those events.

In that context, the Court points out that it is for the Member States alone to determine the events which are of major importance and that the Commission’s role in that respect is limited to determining whether the Member States have complied with European Union law in exercising their discretion. Thus, if an event has validly been designated by a Member State as being of major importance, the Commission is to carry out only a limited review of that designation and is  required, in particular, to examine only the effects thereof on the freedoms and rights recognised under European Union law which exceed those which are intrinsically linked to such a designation.

Next, the Court notes that not all the matches in the final stage of the World Cup and the EURO are of equal importance for the general public, which tends to attach particular importance to decisive matches between the best teams – such as the final and semi-finals – and those involving the national team. Consequently, those tournaments must be regarded as events which are, in principle, divisible into different matches or stages, not all of which are necessarily capable of being characterised as an event of major importance.

In that regard, the Court also states that, contrary to the grounds given in the judgments under

appeal, the Member States are required to communicate to the Commission the reasons

justifying why they consider that the final stage of the World Cup or the EURO constitutes,

in its entirety, a single event of major importance for society in the States concerned.

However, those errors did not have any impact in the present cases. The General Court found,

on the basis of the information provided by FIFA and UEFA and in the light of the actual perception of the public in the United Kingdom and Belgium, that all the matches in the final stages of those two tournaments actually attracted sufficient attention from the public to form part of an event of major importance. In particular, it is apparent from the file, first, that those tournaments, in their entirety, have always been very popular among the general public and not only viewers who generally follow football matches on television. Second, those competitions have traditionally been broadcast on free television channels in those Member States.

Finally, the Court finds that, given the Commission’s limited power of review of the designation by a Member State of an event as being of major importance and the in-depth knowledge of broadcasters of the grounds underlying such a designation, it is permissible for the Commission to indicate only succinct grounds for its decision on the list of events of major importance drawn up by a Member State. Moreover, where the effects of such a designation on the freedom to provide services, the freedom of competition and the right to property do not go beyond those which are intrinsically linked to the classification of the event concerned as being of major importance, it is not necessary to provide specific grounds for concluding that it is compatible with European Union law. In the present case, it has not been shown that the effects on the freedoms and rights recognised by European Union law of the designation of the final stages of the World Cup and the EURO, in their entirety, as events of major importance were excessive.

In those circumstances, the Court dismisses the appeals brought by FIFA and UEFA in their

entirety.