Belgium

Advocate General: British and Belgian Lists of Events of Major Importance Confirmed

IRIS 2013-3:1/4

Peter Matzneller

Institute of European Media Law (EMR), Saarbrücken/Brussels

On 12 December 2012, Advocate General Jääskinen delivered his opinion to the Court of Justice of the European Union (CJEU) in the appeals procedure between UEFA and FIFA and the European Commission and thereby upheld the previous decisions of the European General Court (cases T-385/07, T-55/08 and T-68/08).

The General Court had dismissed the football authorities’ complaints about the British and Belgian lists of events of major importance that must be broadcast on free-to-air television. The member states concerned had prepared their lists in accordance with Article 3a of the Television Without Frontiers Directive 89/552/EEC (now Art. 14(1)(2) of the Audiovisual Media Services Directive 2010/13/EU). Belgium’s list included, inter alia, all of the matches of the World Cup finals, while the United Kingdom’s list also included all of the matches of the European Championship finals. FIFA and UEFA had brought actions against those decisions, contesting the finding that all of those matches may constitute events of major importance for the public of those states.

In his opinion, the Advocate General states, firstly, that the check which the Commission is authorised to carry out in respect of the exercise of the member state’s discretion in establishing national lists is limited to ascertaining whether there is a manifest error of assessment. Nevertheless, the Commission must examine carefully and impartially all the relevant aspects of the individual case. The review must remain restricted to ascertaining whether the Commission properly found or rejected the existence of a manifest error. There is no such manifest error in this case, he concludes.

The Advocate General explains that the restriction of exclusive broadcasting of sports events does not infringe the sports authorities’ right to property. A right to property that protects the exclusive broadcast of sports events is defined neither in national law nor in European Union law. Its field of application therefore depends on the provisions setting out its limits, such as those of the Directive. The disputed measure therefore does not represent a restriction of the right to property in the sense of the Charter of Fundamental Rights.

The fact that the World Cup and European Championship are mentioned in recital 49 of the Directive as examples of events of major importance for society does not mean that the entirety of these events can always be included in the national lists of every member state, irrespective of their interest to the public. However, the reference to both competitions in the Directive means that a member state, if it includes the matches in these tournaments in its national list, does not need to include them in its notification to the Commission giving specific grounds concerning their nature “as an event of major importance for society”.