Parties Grounds Operative part

In Case C‑125/06 P,

APPEAL under Article 56 of the Statute of the Court of Justice, brought on 28 February 2006,

Commission of the European Communities, represented by K. Banks and M. Huttunen, acting as Agents, with an address for service in Luxembourg,

appellant,

the other parties to the proceedings being:

Infront WM AG, formerly FWC. Medien AG, then KirchMedia WM AG, established in Zug (Switzerland), represented by M. Garcia, Solicitor,

applicant at first instance,

French Republic,

United Kingdom of Great Britain and Northern Ireland,

European Parliament,

Council of the European Union,

interveners at first instance,

THE COURT (Fourth Chamber),

composed of K. Lenaerts, President of the Chamber, G. Arestis, R. Silva de Lapuerta, E. Juhász and J. Malenovský (Rapporteur), Judges,

Advocate General: Y. Bot,

Registrar: R. Grass,

having regard to the written procedure,

after hearing the Opinion of the Advocate General at the sitting on 18 October 2007,

gives the following

Judgment

1. By its appeal, the Commission of the European Communities seeks the setting aside of the judgment of the Court of First Instance of the European Communities of 15 December 2005 in Case T‑33/01 Infront WM v Commission [2005] ECR II-5897 (‘the judgment under appeal’), by which it annulled the Commission’s decision contained in its letter of 28 July 2000 to the United Kingdom of Great Britain and Northern Ireland (‘the contested decision’).

Legal context

Community Legislation

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 (OJ 1989 L 298, p. 23), as amended by Directive 97/36/EC of the European Parliament and of the Council of 30 June 1997 (OJ 1997 L 202, p. 60 ; ‘Directive 89/552’), is intended to ensure freedom of reception and retransmission of television broadcasts within the European Community by laying down minimum rules with which the Member States are required to ensure that television broadcasters under their jurisdiction comply.

3. The 18th and 19th recitals in the preamble to Directive 97/36 read as follows:

‘(18) … it is essential that Member States should be able to take measures to protect the right to information and to ensure wide access by the public to television coverage of national or non-national events of major importance for society, such as the Olympic games, the football World Cup and the European football championship; … to this end Member States retain the right to take measures compatible with Community law aimed at regulating the exercise by broadcasters under their jurisdiction of exclusive broadcasting rights to such events;

(19) … it is necessary to make arrangements within a Community framework, in order to avoid potential legal uncertainty and market distortions and to reconcile free circulation of television services with the need to prevent the possibility of circumvention of national measures protecting a legitimate general interest’.

4. Under Article 1(b) of Directive 89/552, ‘broadcaster’ means the natural or legal person who has editorial responsibility for the composition of schedules of television programmes and who transmits them or has them transmitted by third parties.

5. Article 3a of Directive 89/552, as inserted by Directive 97/36, is in these terms:

‘1. Each Member State may take measures in accordance with Community law to ensure that broadcasters under its jurisdiction do not broadcast on an exclusive basis events which are regarded by that Member State as being of major importance for society in such a way as to deprive a substantial proportion of the public in that Member State of the possibility of following such events via live coverage or deferred coverage on free television. If it does so, the Member State concerned shall draw up a list of designated events, national or non-national, which it considers to be of major importance for society. It shall do so in a clear and transparent manner in due and effective time. In so doing the Member State concerned shall also determine whether these events should be available via whole or partial live coverage, or where necessary or appropriate for objective reasons in the public interest, whole or partial deferred coverage.

2. Member States shall immediately notify to the Commission any measures taken or to be taken pursuant to paragraph 1. Within a period of three months from the notification, the Commission shall verify that such measures are compatible with Community law and communicate them to the other Member States. It shall seek the opinion of the Committee established pursuant to Article 23a. It shall forthwith publish the measures taken in the Official Journal of the European Communities and at least once a year the consolidated list of the measures taken by Member States.

3. Member States shall ensure, by appropriate means, within the framework of their legislation that broadcasters under their jurisdiction do not exercise the exclusive rights purchased by those broadcasters following the date of publication of this Directive in such a way that a substantial proportion of the public in another Member State is deprived of the possibility of following events which are designated by that other Member State in accordance with the preceding paragraphs via whole or partial live coverage or, where necessary or appropriate for objective reasons in the public interest, whole or partial deferred coverage on free television as determined by that other Member State in accordance with paragraph 1.’

National legislation

6. Sections 98 and 101 in Part IV of the Broadcasting Act 1996, as amended by the Television Broadcasting Regulations 2000 (‘the Broadcasting Act’), provide:

‘98. Categories of service

(1) For the purposes of this Part, television programme services and [European Economic Area (“EEA”)] satellite services shall be divided into two categories as follows:

(a) those television programme services and EEA satellite services which for the time being satisfy the qualifying conditions, and

(b) all other television programme services and EEA satellite services.

(2) In this section “the qualifying conditions”, in relation to a service, means the conditions:

(a) that the service is provided without any consideration being required for reception of the service, and

(b) that the service is received by at least 95% of the population of the United Kingdom.

…

101 Restriction on televising of listed event

(1) A television programme provider providing a service falling within either of the categories set out in subsection (1) of section 98 (“the first service”) for reception in the United Kingdom or in any area of the United Kingdom shall not, without the previous consent of the [Independent Television Commission (“the ITC”)], include in that service live coverage of the whole or any part of a listed event unless:

(a) another person, who is providing a service falling within the other category set out in that subsection (“the second service”) has acquired the right to include in the second service live coverage of the whole of the event or of that part of the event, and

(b) the area for which the second service is provided consists of or includes the whole, or substantially the whole, of the area for which the first service is provided.

...’

7. Those provisions were notified to the Commission on the basis of Article 3a(2) of Directive 89/552 and published in the Official Journal of the European Communities (OJ 2000 C 328, p. 2).

8. The factors to be considered in giving the consent referred to in Section 101(1) are specified in the Independent Television Commission Code on Sports and other Listed Events, as amended.

Facts

9. The facts which gave rise to this dispute, as set forth in paragraphs 7 to 22 of the judgment under appeal, can be summarised as follows.

10. Infront WM AG (‘Infront’), formerly FWC Medien AG which became KirchMedia WM AG, is involved in the acquisition, management and marketing of television broadcasting rights for sporting events. Typically it purchases such rights from the organiser of the sporting event concerned and resells the rights thus acquired to broadcasters.

11. On 10 September 1996, its parent company signed a contract with the Fédération internationale de football association (‘FIFA’) for the exclusive television broadcasting rights to the final-stage matches of the 2002 and 2006 FIFA World Cups. It acquired, among others, the exclusive television broadcasting rights to those matches in the countries of Europe. Those rights were subsequently assigned to Infront.

12. By letters of 25 September 1998 and 5 May 2000, the United Kingdom notified the Commission, in accordance with Article 3a(2) of Directive 89/552, of the measures adopted pursuant to Article 3a(1).

13. On 28 July 2000, the Director-General of the Commission’s Directorate-General for Education and Culture sent the United Kingdom the contested decision, stating as follows:

‘By letter dated 5 May 2000, received by the European Commission on 11 May 2000, the [United Kingdom] Permanent Representation to the European Union notified [to] the Commission a set of national measures concerning the television coverage of events of national interest in the United Kingdom. …

I have the honour to inform you that pursuant to the examination of the conformity of the measures taken with … [D]irective [89/552] and on the basis of the facts available in relation to the audiovisual landscape in the United Kingdom, the … Commission does not intend to object to the measures notified by your authorities.

As required by Article 3a(2) of … [D]irective [89/552], the Commission will proceed with the publication of the notified measures in the [Official Journal].’

14. The Commission published those measures in the Official Journal on 18 November 2000. They include Sections 98 and 101 of the Broadcasting Act and the list of events of major importance for society designated by the United Kingdom (‘the designated events’). Among those events are the FIFA World Cup Finals.

15. During the verification procedure of those measures by the Commission, Infront sent it two letters in which it claimed that the list of designated events could not be approved because of its incompatibility with both Article 3a of Directive 89/552 and other provisions of Community law.

16. Subsequently, by letter of 7 December 2000, Infront asked the Commission to confirm that it had completed the verification process under Article 3a(2) of Directive 89/552 in connection with the list of designated events and to inform Infront of the outcome of the process, including any relevant Commission measures. The Commission replied to Infront that the procedure had been completed and that the list of designated events had been accepted as compatible with that directive.

17. Consequently, Infront brought an action before the Court of First Instance for the annulment of the contested decision.

18. The Commission raised a plea of inadmissibility. It contended that it had not adopted the contested decision pursuant to Article 3a(2) of Directive 89/552 and that the contested decision was not of direct or individual concern to Infront.

The judgment under appeal

19. In the judgment under appeal, the Court of First Instance rejected the plea of inadmissibility and declared the action admissible.

20. It found, first, that the contested decision closed the procedure under Article 3a(2) of Directive 89/552, by virtue of which the Commission is required to verify the compatibility with Community law of national measures adopted pursuant to Article 3a(1). The publication in the Official Journal of those measures approved by the Commission informed the other Member States of their existence and, therefore, enabled them to comply with their obligations under Article 3a(3) of that directive as part of the mechanism for mutual recognition of those measures instituted by the latter provision.

21. The contested letter therefore produced, in the Court of First Instance’s view, legal effects for the Member States, in so far as it envisaged the publication in the Official Journal of the national measures in question, since the effect of that publication is to trigger the mechanism for mutual recognition laid down by Article 3a(3) of Directive 89/552. It is thus a decision within the meaning of Article 249 EC, although Article 3 of Directive 89/552 does not expressly refer to the adoption by the Commission of a ‘decision’.

22. Secondly, the Court of First Instance considered whether that decision is of direct concern to Infront. It noted the case-law according to which, in order to be of direct concern to an individual within the meaning of the fourth paragraph of Article 230 EC the contested Community measure must directly affect the applicant’s legal situation and its implementation must be purely automatic and result from Community rules alone without the application of other intermediate rules (see Case C‑386/96 P Dreyfus v Commission [1998] ECR I‑2309, paragraph 43 and the case-law cited).

23. The Court of First Instance held, first of all, that where Infront assigns its television broadcasting rights to a broadcaster established in the United Kingdom for the purposes of television broadcasting in that Member State, the measures adopted by the United Kingdom authorities exist in law independently of the contested decision. In so far as the measures notified are applicable to broadcasters established in the United Kingdom under the national law on broadcasting in force in that Member State and not by virtue of the contested decision, Infront is not directly concerned.

24. On the other hand, only the contested decision finding that the measures notified by the United Kingdom are compatible with Community law and providing for the subsequent publication of those measures in the Official Journal enables the mechanism of mutual recognition under Article 3a(3) of Directive 89/552 to operate effectively. It follows that, in that situation, the contested decision validates those measures for the sole purposes of their recognition by the other Member States.

25. Furthermore, the Court of First Instance decided that since such mutual recognition of the national measures adopted pursuant to Article 3a(1) of Directive 89/552 is subject to their approval by the Commission and their subsequent publication in the Official Journal, the contested decision does not leave the Member States any discretion, once that publication has occurred, as to the performance of their obligations. Although the detailed rules for the control which the national authorities are required to exercise under the mechanism of mutual recognition established by Article 3a(3) of Directive 89/552 are determined by each Member State in the framework of its legislation implementing that provision, those authorities must ensure that broadcasters under their jurisdiction comply with the conditions for broadcasting the events designated in the national measures approved and published in the Official Journal by the Commission.

26. The Court of First Instance concluded, therefore, that Infront is directly concerned by the contested decision in so far as it enables the implementation of the mechanism of mutual recognition by the other Member States of the measures adopted by the United Kingdom pursuant to Article 3a(1) of Directive 89/552 .

27. Thirdly, the Court of First Instance held that Infront is, likewise, individually concerned by the contested decision. That decision concerns Infront by reason of a characteristic peculiar to it, namely its capacity as the exclusive holder of the television broadcasting rights for one of the de signated events. Although Infront, in its capacity as broker of the relevant television broadcasting rights is not expressly covered by the national measures approved and published in the Official Journal by the Commission, they impede its ability freely to dispose of its rights by restricting their transfer exclusively to a broadcaster established in a Member State other than the United Kingdom which wishes to broadcast that event in the latter State.

28. Moreover, although the legal validity of the contracts concluded with FIFA is not affected by the contested decision, it is of importance that Infront acquired exclusively the television broadcasting rights in question before the entry into force of Article 3a of Directive 89/552 and, a fortiori, before the adoption of the contested decision.

29. On the substance, the Court of First Instance annulled the contested decision, on the ground that, being a decision within the meaning of Article 249 EC, it was vitiated by lack of powers. The College of Commissioners had not been consulted and the Director-General who signed the contested decision had received no specific power from the College.

Forms of order sought by the parties

30. By its appeal, the Commission claims that the Court should:

– set aside the judgment under appeal;

– give final judgment by declaring that the application before the Court of First Instance was inadmissible, and

– order Infront to pay the Commission’s costs at first instance and on appeal.

31. Infront contends that the Court should:

– dismiss the appeal, or

– refer the case back to the Court of First Instance for judgment in accordance with the judgment of the Court of Justice as to law; and

– order the Commission to pay its own and Infront’s costs relating to the proceedings before this Court and the Court of First Instance.

The appeal

32. The fourth paragraph of Article 230 EC provides that any natural or legal person may institute proceedings against a decision which, although in the form of a decision addressed to another person, is of direct and individual concern to the former.

33. In support of its appeal, the Commission pleads two grounds of appeal alleging misapplication of the two latter requirements.

Preliminary observations

34. Prior to examining those grounds of appeal, it is necessary to define the scope and effect of Article 3a of Directive 89/552 and of the contested decision.

35. Under Article 3a(1) of Directive 89/552, each Member State may take measures in accordance with Community law to ensure that broadcasters under its jurisdiction do not broadcast on an exclusive basis events which are regarded by that Member State as being of major importance for society in such a way as to deprive a substantial proportion of the public in that Member State of the possibility of following them via live coverage or deferred coverage on free television. To that end, the Member State concerned is to draw up a list of such events.

36. Article 3a(2) of Directive 89/552 requires the Commission to verify that those measures are compatible with Community law and to publish them in the Official Journal. Article 3a(3) puts in place a mutual recognition mechanism by which the other Member States must ensure that broadcasters under their jurisdiction do not circumvent measures adopted pursuant to Article 3a(1) by another Member State, approved by the Commission and published in the Official Journal.

38. Pursuant to that legislation, the Commission informed the United Kingdom, by the contested decision, of the approval of the measures it had adopted and of their subsequent publication in the Official Journal. As the Court of First Instance held, that decision thus closed the verification procedure which the Commission was required to carry out under Article 3a(2) of Directive 89/552. The publication in the Official Journal of those measures informed the other Member States of their existence and enabled them to comply with their obligations under Article 3a(3) of Directive 89/552.

39. The contested decision therefore triggered the mutual recognition mechanism under Article 3a(3) of Directive 89/552 and, consequently, activated the other Member States’ obligation to ensure that broadcasters under their jurisdiction did not circumvent the measures adopted by the United Kingdom pursuant to Article 3a(1).

40. It is in the light of those considerations that the Commission’s grounds of appeal must be examined.

The first ground of appeal, alleging misapplication of the requirement of direct concern

Arguments of the parties

Findings of the Court

The second ground of appeal, alleging misapplication of the requirement of individual concern

Arguments of the parties

65. The Commission submits that the Court of First Instance wrongly held that the contested decision was of individual concern to Infront, within the meaning of the fourth paragraph of Article 230 EC and of the Court’s case-law.

66. The Commission maintains that the approach taken by the Court of First Instance leads to the conclusion that all television broadcasting rights holders affected by the measures adopted by the United Kingdom pursuant to Article 3a(1) of Directive 89/552 are individually concerned by those measures, though such broadcasters are numerous. In the same way as all holders of such rights, Infront is concerned by the contested decision only in its objective capacity as a broker of television broadcasting rights to sporting events having purchased those rights for one of the designated events.

67. Moreover, holders of television broadcasting rights such as Infront are subject only to the economic consequences of the national measures approved by the contested decision. An undertaking cannot be individually concerned by a regulatory provision solely on the ground that it affects its economic activity and that is the more so if such consequences are a normal commercial risk.

68. The contested decision does not affect Infront by reason of certain attributes which are peculiar to it or by reason of circumstances in which it is differentiated from all other persons.

69. Infront submits that the Court of First Instance correctly noted the matters which distinguish it from others, namely that it holds exclusive television broadcasting rights for an event in the list of designated events, that those rights were acquired before the establishment of that list and its approval by the Commission, and that such approval seriously prejudices the exploitation by Infront of those rights since it cannot license them on an exclusive basis.

Findings of the Court

78. Accordingly, the second ground of appeal must be rejected as unfounded and, therefore, the appeal must be dismissed in its entirety.

Costs

79. Under Article 69(2) of the Rules of Procedure, which applies to appeal proceedings by virtue of Article 118 thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since Infront has applied for costs and the Commission has been unsuccessful, the Commission must be ordered to pay the costs.

On those grounds, the Court (Fourth Chamber) hereby:

1. Dismisses the appeal;

2. Orders the Commission of the European Communities to pay the costs.