ORDER OF THE PRESIDENT OF THE SEVENTH CHAMBER
OF THE COURT OF FIRST INSTANCE
14 October 2008(*)
« Intervention »
In Case T‑385/07,
Fédération Internationale de Football Association (FIFA), established in Zurich (Switzerland), represented initially by R. Denton, E. Batchelor and F. Young, solicitors, A. Barav, barrister, and subsequently by E. Batchelor, F. Young, A. Barav and D. Reymond, lawyer,
applicant,
v
Commission of the European Communities, represented by E. Montaguti and N. Yerrell, acting as Agents,
defendant,
supported by
The United Kingdom of Great Britain and Northern Ireland, represented by S. Behzadi-Spencer and E. Jenkinson, acting as Agents, assisted by T. de la Mare, barrister,
The Federal Republic of Germany, represented by M. Lumma and J. Möller, acting as Agents,
and
The Kingdom of Belgium, represented by L. Van den Broeck and C. Pochet, acting as Agents, assisted by J. Stuyck, A. Berenboom and A. Joachimowicz, lawyers,
interveners,
ACTION for annulment of Commission Decision 2007/479/CE of 25 June 2007, on the compatibility with Community law of measures taken by Belgium pursuant to Article 3a(1) of Council Directive 89/552/EEC on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities (JO L 180, p. 24),
THE PRESIDENT OF THE SEVENTH CHAMBER
OF THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES,
makes the following
Order
Background and Procedure
1 On 25 June 2007, the Commission adopted a decision (the ‘contested decision’), by which it approved, for the purposes of the application of Article 3a(1) of Council Directive 89/552/EEC on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities, the list of sporting events (the ‘Belgian list’) submitted to it by Belgium and which the Flemish and French autonomous communities in Belgium had adopted.
2 By application lodged at the Registry of the Court of First Instance on 4 October 2007, the Fédération internationale du football d’association (‘FIFA’) brought an action for annulment of the contested decision which gave rise to the present proceedings. In its application, FIFA set out the form of order it sought as follows:
‘For the above reasons FIFA respectfully requests:
(i) The annulment of the Decision, in particular Articles 1-2 thereof; and
(ii) An order that the Commission pay its own costs and FIFA’s costs in connection with these proceedings.’
3 By application lodged at the Registry of the Court of First Instance on 13 February 2008, the Union des associations européennes de football (‘UEFA’), established in Nyon (Switzerland), represented by A. Bell and K. Learoyd, solicitors, applied for leave to intervene in the present proceedings in support of the form of order sought by FIFA.
4 That application to intervene was notified to the principal parties to the proceedings in accordance with Article 116 of the Rules of Procedure of the Court of First Instance. By a letter lodged at the Registry of the Court of First Instance on 14 March 2008, the Commission indicated that it opposed the application to intervene on the ground that UEFA did not have an interest in the outcome of the present proceedings. FIFA did not submit observations on the application to intervene within the time limit communicated to it.
5 In its reply, lodged at the Registry of the Court of First Instance on 17 June 2008, FIFA set out the form of order sought in the following terms:
‘In the light of the preceding considerations FIFA has the honour to request the CFI to reject the objections to the admissibility of the present Application and to dismiss the pleas-in-law and arguments raised in the Commission’s defence as to the substance of the Application and, consequently, to:
(i) annul, in whole or in part, the Commission’s decision 2007/4791 EC of 25 June 2007 on the compatibility with Community law of measures taken by Belgium pursuant to Article 3a(1) of Council Directive 89/5521 EEC on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities (OJEU L 180 of 10 July 2007 page 24) in so far as it concerns the FIFA World Cup.
(ii) order the Commission to pay its own costs and FIFA’s costs incurred in connection with these proceedings.’
6 By a letter dated 4 July 2008 the Court informed UEFA of the clarification provided by FIFA in its reply as to the form of order sought, asked UEFA to indicate whether it maintained its request to intervene and invited UEFA to make any other observations it considered appropriate.
7 By a letter lodged at the Registry of the Court of First Instance on 21 July 2008, UEFA informed the Court that it maintained its request to intervene and made further observations in support of its contention that it should be admitted to intervene in the present proceedings.
8 By a letter lodged at the Registry of the Court of First Instance on 12 August 2008, FIFA made observations in respect of those submitted by UEFA without formally expressing a view on the merits of the application to intervene. In particular, FIFA informed the Court that it is seeking annulment of the contested decision only to the extent that the Commission has approved the inclusion of FIFA World Cup matches on the Belgian list.
UEFA’s interest in the result of the case
9 The right to intervene is open to any natural or legal person establishing an interest in the result of the case. This interest is to be defined in relation to the subject-matter of the case, which is framed by the form of order sought by the parties (order of the Court of Justice of 8 April 1981 in Joined Cases 197/80 to 200/80, 243/80, 245/80 and 247/80 Ludwigshafener Walzmühle v Council and Commission [1981] ECR 1041, at paragraph 7, and order of the President of the Court of Justice of 17 June 1997 in Joined Cases C‑151/97 P(I) and C‑157/97 P(I) National Power and PowerGen v Commission [1997] ECR I-3491, paragraphs 51 and 52).
10 To be granted leave to intervene, a person must, therefore, establish a direct and existing interest in the grant of the form of order sought by the party whom it intends to support and thus, in the ruling on the specific act whose annulment is sought (order of the Court of Justice of 25 November 1964 in Case 111/63 Lemmerz-Werk v High Authority [1965] ECR 883, 884; order in National Power and PowerGen v Commission, paragraph 9 above, paragraph 53, and order of the President of the Court of Justice of 6 March 2003 in Case C-186/02 P Ramondínand Ramondín Cápsulas v Commission [2003] ECR I-2415, paragraph 7). Indeed, if it were not so, any person alleging that a case is such as to affect its interests in any given way would be granted leave to intervene, with the result that the effectiveness and proper course of the procedure would be compromised (order in National Power andPowerGen v Commission, cited above, paragraph 66; order of the Court of First Instance of 15 June 1993 in Joined Cases T‑97/92 and T‑111/92 Rijnoudt and Hocken v Commission [1993] ECR II-587, paragraph 21, and order of the Court of First Instance of 8 December 1993 in Case T‑87/92 Kruidvat v Commission [1993] ECR II-1375, paragraphs 13 and 14).
11 In the present case, it falls to the President of the seventh chamber to examine whether UEFA has established such an interest.
12 In support of its application, UEFA submits that it has a direct and existing interest in the grant of the form of order sought by FIFA in its initial application and that it should, therefore, be granted leave to intervene in the case. UEFA observes that FIFA has sought the annulment of the contested decision in its entirety. It further notes that all of the matches in the UEFA European Football Championships (the ‘EURO’) are designated by the Belgian List, which was approved by the contested decision, as events of ‘major importance for society’ in Belgium. UEFA concludes that the annulment sought by FIFA in the present proceedings would therefore, if granted, have a direct impact on its legal position.
13 In its letter of 21 July 2008, UEFA argues, in response to the Court’s written question, that FIFA was not entitled to change the form of order it seeks in the present proceedings in its reply since, according to case law, an applicant is not entitled to modify the form of order initially sought at a later stage. According to UEFA, the differences between the forms of order sought as set out, respectively, in the application and the reply do not constitute a clarification but a modification of that form of order. As such, only the form of order sought in the application should be regarded as defining the scope of the present proceedings.
14 The Commission contends that if FIFA’s application for annulment is admissible at all it could only be so in respect of that part of the contested decision which relates to the FIFA World Cup. To the extent that the contested decision affects other sporting events, such as the EURO, FIFA clearly has no right to contest its legality. The Commission therefore argues that if the form of order sought by FIFA were to be interpreted in the manner suggested by UEFA then the present application would in any event be manifestly inadmissible to the extent that it affected those other sporting events.
15 The Court holds that, as FIFA correctly pointed out in its letter of 12 August 2008, an applicant is entitled to modify the form of order it initially sought by reducing the scope of that order (Case T‑177/03, Strohm v Commission [2005] ECR SC I‑A‑147 et II‑651, paragraph 21; see also, to that effect and by analogy, Case C‑456/03 Commission v Italy [2005] ECR I‑5335, paragraphs 39 and 40).
16 In the present proceedings, it is apparent that the form of order sought, as set out by FIFA in its reply, is more limited in scope than the one set out in its initial application. In particular, in seeking the form of order set out in the reply, FIFA requests that the Court annul the contested decision only to the extent that it affects the FIFA World Cup. In its letter of 12 August 2008, FIFA confirmed that limitation on the annulment which it seeks in the present proceedings.
17 In the light of the above, the Court therefore notes, firstly, that FIFA has clearly expressed its intention to proceed on the basis of the form of order set out in the reply. Secondly, the Court observes that, even assuming that the differences between the forms of order sought as set out in the application and the reply, respectively, are more properly described as a modification, rather than as a clarification of that form of order, FIFA was entitled so to change the form of order sought because that change amounts to a limitation in scope of the annulment initially requested.
18 It is therefore by reference to the form of order sought set out in the reply that the application of UEFA to intervene in the present proceedings must be assessed.
19 Since FIFA now seeks annulment of the contested decision only in so far as it concerns the FIFA World Cup, and such annulment would not affect the legal status of the EURO organised by UEFA, UEFA does not have a direct and existing interest in the grant of the form of order sought by FIFA in the present proceedings, within the meaning of the case law cited at paragraph 10 above.
20 It follows from the foregoing that UEFA’s application for leave to intervene in the present proceedings must be refused.
Costs
21 None of the other parties having applied for its costs to be paid by the applicant for leave to intervene, each party shall bear its own costs in connection with the application for leave to intervene.
Oh those grounds,
THE PRESIDENT OF THE SEVENTH CHAMBER OF THE COURT OF FIRST INSTANCE
hereby orders:
1) The application for leave to intervene in Case T‑385/07, lodged by the Union des associations européennes de football, is dismissed.
2) Each party shall bear its own costs in connection with the application for leave to intervene.
Luxembourg, 14 October 2008.