EU law allows national measures preventing exclusive broadcast of World Cup and EURO

A Member State may prohibit the exclusive broadcast of all World Cup and EURO football matches on pay television, in order to allow the general public to follow those events on free television

The judgments T-385/07, T-55/08 and T-68/08 of the General Court can be found on the website of the Court of Justice of the European Union http://curia.europa.eu.

When World Cup and EURO football matches are of major importance for society, a restriction on the freedom to provide services and freedom of establishment is justified by the right to information and by the need to insure wide public access to television broadcasts of those events.

The directive on the pursuit of television broadcasting activities1 allows Member States to prohibit the exclusive broadcasting of events they deem to be of major importance for society, if this exclusive broadcasting would not allow a substantial proportion of the public to be able to follow those events on free television.

In application of this directive, Belgium and the United Kingdom drew up a list of events they judged to be of major importance for their societies. Belgium listed, inter alia, all matches of the football World Cup finals (“the World Cup”) and the United Kingdom listed, among others, all matches of the World Cup and the European Football Championship finals (“the EURO”). The Commission found those lists to be compatible with European Union law2.

However, for the Fédération Internationale de Football Association (“FIFA”), organising the World Cup and the Union des associations européennes de football (“UEFA”), organising the EURO, the sale of television broadcasting rights constitutes a major source of their income. Therefore, they challenged the Commission decisions before the General Court (hereinafter: “Court”) the, disputing the qualification of all World Cup and EURO matches as events of major importance for the Belgian and British public.

In its judgments T-385/073, T-55/084 and T-68/085 delivered on 17 February 2011, the Court firstly examines certain features of the World Cup and EURO organizations in terms of impact on television broadcasts of those competitions. Secondly, it examines the European and national legal rules relating to the broadcasting of those events. Lastly, the Court examines the specific issue whether restrictions may be placed on FIFA’s and UEFA’s broadcasting rights for the World Cup and the EURO for reasons of public interest.

The Court elaborates on the reference to the World Cup and the EURO in recital 18 in the preamble to Directive 97/36. This recital means, according to the Court, that a Member State, when including matches from those competitions in the list it has decided to draw up, does not have to include in its notification to the Commission specific grounds concerning their nature as an event of major importance to the society. However, if the Commission finds that the inclusion of the entire World Cup and/or EURO in a list of events of major importance to the society by a Member State, on the grounds that those competitions are, by their nature, regarded as single events, this may be questioned on the basis of specific factors showing that “non-prime” matches6 of the World Cup and/or “non-gala” matches7 of the EURO are not of such importance for the society of that Member State.

The Court states, in that context, that the “prime” and “gala” matches and, in case of the EURO, matches involving a relevant national team are accepted to be of major importance for the public of a given Member State and may, therefore, be included in a national list of events to which the public should be able to have access on free television.

As regards the other EURO and World Cup matches the Court finds that those competitions may be seen as single events. The participation of the teams in “prime” and “gala” matches may depend on the results of “non-prime” and “non-gala” matches, which may therefore generate a particular interest for the public to follow those matches.

In that regard, the Court observes that it cannot be specified in advance (at the time of drawing up the national list) which matches will be decisive for the subsequent stages of those competitions or which ones may affect the fate of a given national team. According to the Court, this may justify the decision of a Member State to consider that all of the matches of those competitions are of major importance.

The applicants relied on statistics in order to show that the “non-prime” and/or “non-gala” matches are not of major importance to the Belgian or British society. However, the Court find that the figures mentioned in those statistics in fact show that these matches have drawn large numbers of viewers, a significant proportion of whom are not usually interested in football.

Next, the Court holds that, in the absence of harmonization in the EU of specific events which Member States may consider to be of major importance to the society, different approaches concerning inclusion of the World Cup and the EURO matches in a national list may be equally compatible with the directive. Therefore, certain Member States may consider that only “prime” and “gala” matches are of major importance to the society, whereas other Member States may come to the conclusion also “non-prime” and “non-gala” matches should appear on the list.

About the categorisation of the World Cup and EURO as events of major importance to the society, the Court is of the opinion that it is indeed liable to affect the price which FIFA and UEFA will obtain for the grant of the rights of those competitions. However, this does not have to destroy the commercial value of those rights, since it does not oblige FIFA and UEFA to sell them on whatever conditions they can obtain. Similarly, although such a categorisation restricts the freedom to provide services and freedom of establishment, it may be justified, because it is meant to protect the right to information and to ensure wide public access to television broadcast of events of major importance to the society. Lastly, the Court finds that the United Kingdom legislation does not grant special or exclusive rights to certain broadcasters.

Having taken the above mentioned into consideration, the Court holds that the Commission did not err in finding that the United Kingdom’s categorisation of all World Cup and EURO matches and Belgium’s categorisation of all Word Cup matches as events of major importance for their respective societies are compatible with European Union law. Therefore, the actions introduced by FIFA and UEFA are dismissed.

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1 Council Directive 89/550/EEC of 3 October 1989 on the coordination of certain provisions laid down by law, regulation or administrative action in Member Sates concerning the pursuit of television broadcasting activities (OJ 1989, L 298/23-, as amended by Directive 97/36/EC of the European Parliament and of the Council of 30 June 1997 (OJ 1997, L202/60).
2 Commission Decision 2007/479/EC of 25 June 2007 on the compatibility with Community law of measures taken by Belgium pursuant to Article 3a(1) of Council Directive 89/552/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 (OJ 2007 L 180/24).
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 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/ 12).
3 Case T-385/07, 17 February 2011, FIFA v. Commission, not yet published in ECR
4 Case T-55/08, 17 February 2011,UEFA v. Commission, not yet published in ECR
5 Case T-68/08, 17 February 2011, FIFA v. Commission, not yet published in ECR
6 “Prime” matches include the semi-finals, the final and the matches involving the relevant national team(s) of the country in question. Other matches are considered to be “non-prime”.
7 “Gala” matches include the opening match and the final. Other matches are considered to be “non-gala”.