Case C‑205/11 P

Fédération internationale de football association (FIFA)

v

European Commission

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

Summary — Judgment of the Court (Third Chamber), 18 July 2013

1.        Freedom to provide services — Television broadcasting activities — Directive 89/552 — Determination of events of major importance for society — Criteria for assessment — Broad discretion of the Member States

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

2.        Freedom to provide services — Television broadcasting activities — Directive 89/552 — Determination of events of major importance for society — Competence of the Member States — Supervision by the Commission — Limited to manifest errors of assessment — Examination of the effects going beyond inevitable obstacles to the principles of the Union

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

3.        Freedom to provide services — Television broadcasting activities — Directive 89/552 — Events of major importance — Meaning — Limitation to only the final stage of the football World Cup — No such limitation — Event divisible into different matches or stages, not all of which are capable of being characterised as an event of major importance

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

4.        Freedom to provide services — Television broadcasting activities — Directive 89/552 — Events of major importance — Reasons enabling the final stage of the football World Cup to be regarded as being of major importance in the specific context of the society of a Member State — Obligation on that Member State to communicate those reasons to the Commission

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

5.        Appeals — Grounds — Grounds of judgment vitiated by a breach of EU law — Operative part well founded for other legal reasons — Rejection

(Art. 256(1) TFEU; Statute of the Court of Justice, Art. 58, first para.)

6.        Freedom to provide services — Television broadcasting activities — Directive 89/552 — Determination of events of major importance for society — Competence of the Member States — Supervision by the Commission — Succinct but relevant grounds provided by a Member State as to the designation of an event as being of major importance — Lawfulness — Power of the Commission to make a request for clarification to the Member State concerned

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

7.        Appeals — Grounds — Plea submitted for the first time in the context of the appeal — Inadmissibility

(Art. 256(1) TFEU; Statute of the Court of Justice, Art. 58, first para.)

8.        Appeals — Grounds — Insufficient or contradictory grounds — Admissibility — Scope of the duty to state reasons

(Art. 256(1) TFEU; Statute of the Court of Justice, Art. 58, first para.)

9.        Appeals — Grounds — Specific criticism of a point of the General Court’s reasoning necessary

(Art. 256(1) TFEU; Statute of the Court of Justice, Art. 58, first para.; Rules of Procedure of the Court of Justice, Art. 112(1)(c))

10.      Acts of the institutions — Statement of reasons — Obligation — Scope — Decision which forms part of circumstances known to the interested party and enabling it to understand the scope of the measure taken in relation to it — Whether a summary statement of reasons is sufficient

(Art. 296, second para. TFEU)

11.      Freedom to provide services — Television broadcasting activities — Directive 89/552 — Determination of events of major importance for society — Competence of the Member States — Obligation of clarity and transparency — Scope — Right of the Member States to submit additional information following the adoption of the list of events of major importance

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

12.      Freedom to provide services — Television broadcasting activities — Directive 89/552 — Determination of events of major importance for society — Discretion of the Member States — Obligation to state the reasons for not following the opinions of national advisory bodies — No such obligation

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

13.      Appeals — Grounds — Inadequate or contradictory grounds — Scope of the obligation to state reasons — Reliance by the General Court on implied reasoning — Lawfulness — Conditions

(Art. 256(1) TFEU; Statute of the Court of Justice, Art. 58, first para.)

14.      Actions for annulment — Jurisdiction of the European Union judicature — Scope — Power of the General Court to substitute the grounds of the author of the contested act for its own grounds — Not included

(Art. 263 TFEU)

15.      Appeals — Grounds — Mistaken assessment of the facts — Inadmissibility — Review by the Court of Justice of the assessment of the facts put before the General Court — Possible only where the clear sense of the evidence has been distorted

(Art. 256(1) TFEU; Statute of the Court of Justice, Art. 58, first para.)

16.      Freedom to provide services — Television broadcasting activities — Directive 89/552 — Events of major importance — Final stage of the football World Cup — National legislation implicitly prohibiting the exclusive broadcasting of that event by pay television channels — Infringement of the property rights of the Fédération internationale de football — Justification based on grounds in the general interest — Commission’s power of supervision — Limits

(Charter of Fundamental Rights of the European Union, Art. 17; European Parliament and Council Directive 97/36, Art. 1; Council Directive 89/552, Art. 3a)

1.        It is for the Member States alone to determine the events which are of major importance; they have a broad discretion in that respect.

Instead of harmonising the list of such events, 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 is based on the premiss that considerable social and cultural differences exist within the European Union in so far as concerns their importance for the general public. Given the relatively imprecise nature of the criteria for assessing whether an event is of major importance for society, it is for each Member State to give substance to the criteria and to assess the interest of the general public in the events concerned, taking account of the social and cultural particularities of society in that Member State.

(see paras 14, 15, 17)

2.        The Commission’s power of review of the legality of national measures designating events as being of major importance, provided for in 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 must, in the light of the broad discretion of the Member States in that respect, be limited to determining whether the Member States have committed any manifest errors of assessment in designating events as being of major importance.

As regards, more specifically, the question whether the designation of the event concerned as an event of major importance is compatible with the general principles of EU law, such as the principles of proportionality and non-discrimination, with fundamental rights, the principles of the freedom to provide services and the freedom of establishment, and the rules on free competition, it is undeniable that a valid designation of an event as being of major importance leads to inevitable obstacles to the freedom to provide services, the freedom of establishment, the freedom of competition and the right to property, obstacles which the EU legislature has considered and regards as justified by the objective in the general interest of protecting the right to information and ensuring wide access by the public to television coverage of those events.

In order to ensure the effectiveness of Article 3a of Directive 89/552, if an event has validly been designated by the Member State concerned as being of major importance, the Commission is required to examine only the effects of that designation on the freedom to provide services, the freedom of establishment, the freedom of competition and the right to property which exceed those which are intrinsically linked to the inclusion of that event in the list provided for in Article 3a(1).

(see paras 18, 19, 21-23)

3.        The EU legislature did not intend to specify that the football World Cup, within the meaning of recital 18 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, is limited to only the final stage and that it constitutes a single and indivisible event. On the contrary, the World Cup must be regarded as an event which is, in principle, divisible into different matches or stages, not all of which are necessarily capable of being characterised as an event of major importance.

(see para. 35)

4.        Given that the final stage of the football World Cup cannot validly be included in its entirety in a list of events of major importance irrespective of the interest generated by the individual matches in the Member State concerned, that State is not freed from its obligation to communicate to the Commission the reasons justifying the designation, in the specific context of the society of the Member State concerned, of the final stage of the World Cup as a unique event which must be regarded in its entirety as being of major importance for that society, rather than a compilation of individual events divided into matches of different levels of interest.

(see para. 41)

5.        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 paras 44, 59)

6.        For the Commission to be able to exercise its power of review, the statement of reasons which led a Member State to designate an event as being of major importance may be succinct, so long as it is appropriate. Thus, it cannot be required, in particular, that the Member State provide, in the actual notification of the measures concerned, detailed information and figures regarding each element or part of the event which has been notified to the Commission. In that regard, 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 paras 45, 46)

7.        See the text of the decision.

(see paras 54, 90, 102)

8.        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. However, the obligation that the statement of the reasons must be coherent does not constitute an objective in itself, but seeks to enable the persons concerned to ascertain the reasons for the decision taken. Since, after having concluded that the findings of the General Court were erroneous, the Court of Justice then substituted grounds which justify the decision taken, the grounds of the General Court no longer constitute the basis for the decision taken.

(see paras 60-63)

9.        See the text of the decision.

(see para. 66)

10.      See the text of the decision.

(see para. 67)

11.      The obligation of clarity and transparency, laid down in the third sentence of 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 seeks to prevent conduct on the part of the competent national authorities from negating the effectiveness of provisions of EU law relating to a fundamental freedom. In that regard, 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. For the same reasons the national procedure must determine, in advance, the authority responsible for that designation and fix the conditions under which interested parties or, where appropriate, certain advisory bodies may submit observations to it before it makes its decision. In that regard, given the impact of such a decision on the broadcasting rights to an event, it is necessary, in particular, that the broadcasters concerned and the holders of those rights have the possibility of submitting observations to that authority.

That being so, the requirement of clarity and transparency requires that those interested parties and advisory bodies be able to submit observations in relation only to the essential elements on the basis of which that authority is required to make its decision. Consequently, there is nothing to preclude a Member State from submitting, at a later point in time, additional information to the Commission which confirms that decision and which may also relate to a period after the date of adoption of the list of events of major importance.

(see paras 72-74)

12.      When implementing 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 a national authority in charge of designating events as being of major importance for society enjoys a broad margin of discretion in determining the bodies entrusted with broadcasting such an event. Although it is true that, as is required of the EU institutions when adopting measures, 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, in order to achieve that objective, the authority does not however have to set out the specific reasons for not following the advice of certain advisory bodies even in circumstances where it is not required to follow such advice. The fact that that advice comes from several advisory bodies which all adopt the same approach is irrelevant in that respect.

(see paras 77-79)

13.      The General Court’s grounds may be implicit, provided that they enable the persons concerned to know the reasons for which a particular ruling was made and provide the competent court 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 para. 89)

14.      See the text of the decision.

(see para. 95)

15.      See the text of the decision.

(see paras 101, 103)

16.      In so far as concerns the qualification of the final stage of the football World Cup as an event of major importance for the society of a Member State and the ensuing impossibility of that event being broadcasted exclusively by pay television broadcasters, it is clear from 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 that the Fédération internationale de football (FIFA)’s property rights are affected and that that effect may, in principle, be justified by the objective of protecting the right to information and ensuring wide access by the public to television coverage of events of major importance. Second, provided that the matches in the final stage of the World Cup, in their entirety, are validly designated by the Member State concerned as an event of major importance, the Commission is required to examine only the effects of that designation on FIFA’s property rights which go beyond those which are intrinsically linked to the inclusion of that event in the list of events designated by those authorities.

(see para. 126)