(Decision of the Court of the EU in cases C-201/11 P, C-204/11 P and

C-205/11 P, UEFA and FIFA/ EU Commission)

 

Hristo Kirilov [1]

 

The article examines the scope of the control effectuated by the European Commission under the Audiovisual Directive [2] over the national lists of events of major importance for the society. It presents the legal framework, the facts in the three cases, and the conclusion of the Advocate General and the decision of the Court. In the Conclusion chapter the main findings of the Court are commented and the authors dedicates also some paragraphs to present its opinion.

According to the directive the Member States may 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 national public of the possibility of following those events on free television. Belgium included all the matches in the final stage of the World Cup (organised by FIFA) and the United Kingdom all the matches in the final stage of the World Cup and the EURO (organised by UEFA). Those lists were sent to the Commission, which decided that they were compatible with European Union law. FIFA and UEFA, which receive from the selling of those rights significant part of their revenues, 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 which led them to lodge appeals before the Court of Justice.

The main findings of the Court are 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 the light of this conclusion, 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.

The Commission will examine thus only the effects of the national measures which would be proved by the parties to constitute obstacles on the freedoms and rights recognised under European Union law which exceed those intrinsically linked to such a designation. The Court finds that, where the effects of the 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 and the Court dismisses the appeals brought by FIFA and UEFA in their entirety.

The decision represents the visionary legal basis included back in 1958 in the Treaty for Establishing the European Communities which remains the same nowadays for the adoption of the Audio-visual Directive. They also show the expert approach of the European Commission and the Court of Justice of the European Union who does not go beyond their competence delimited by EU law keeping thus very precisely the principle of subsidiarity. Finally the cases are indicative that the internal market for audio-visual services is composed and driven not only by economical rights but also affects the rights to information and the politic of the EU for the developing the EU dimension of sports. It might be expected that the regulation of that audio-visual internal market and the case-law will develop in the following years and this process will develop the more and more complex system of rights and obligations in the European Union.

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[1] Attorney at Law (Kirilov, Gorchev и Co.), LLM in European Union Law from the University Carlos III in Madrid and LLM in International Commercial Law from the University Paris X – Nanterre.

[2] Council Directive 89/552/EEC of 3 October 1989 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities, as amended by Directive 97/36/EC of the European Parliament and of the Council of 30 June 1997.

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Линк към статията на български език: ОБХВАТ НА КОНТРОЛА НА ЕВРОПЕЙСКАТА КОМИСИЯ ВЪРХУ НАЦИОНАЛНИТЕ СПИСЪЦИ  СЪС ЗНАЧИМИ СПОРТНИ СЪБИТИЯ 

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