Match of the Day: FIFA/UEFA and listing of football championships as events of ‘major importance’

Brought to you by– Ravi Mehta (RM) and Alex Tinsley (AT, of Fair Trials International, commentating in a personal capacity)

RM: Welcome to Match of the Day. If you’ve just joined us, we have witnessed the long-awaited encounter between FIFA/UEFA and the European Commission, here at the Court of Justice of the EU (“CJEU”), the luxurious new stadium built in central Rio for this 2014 World Cup which, of course, you can follow in its entirety on free-to-air television in the UK! Here to describe the action with me is Alex Tinsley. Alex, there was a lot riding on this game wasn’t there?

AT – Absolutely Ravi, just like any derby, there is so much at stake when these sides meet. It goes back to Council Directive 89/552/EEC as amended (the “Television Without Frontiers Directive”, now renamed the Audiovisual Media Services Directive). This is a piece of EU legislation designed to ensure media pluralism and to guarantee access to information for the public where there is a public interest to do so. It allows a Member State to identify certain events in “a list of designated events, national or non-national, which it considers to be of major importance for society”. The result is that rights to broadcast those events cannot be exclusive. When Belgium and the United Kingdom listed the whole of the World Cup and the UK listed the entirety of the European Championships (“the Euros”) under Article 3a of the Directive, it set the scene for a big match last year at the General Court of the EU.

RM: You were at that game, weren’t you Alex?

AT: I was, and to be honest it was a hum-drum affair. UEFA/FIFA took issue with the UK and Belgium’s decisions, challenging the European Commission’s conclusion that they were compatible with Union law. They argued that the Commission had allowed the Member States to unlawfully interfere with their property rights (namely by limiting their potential revenue from the sale of the broadcasting rights on an exclusive basis to private broadcasters (like Sky)) and had restricted their freedom to provide services.

RM: Let’s look back at some of the action. What were UEFA/FIFA’s tactics?

AT: Well they argued that only the matches in which the respective countries were playing and ‘prime’ or ‘gala’ fixtures (i.e. the semi-finals, the final, and the opening match of the Championships) could really be said to be of sufficient 'importance for society' and that the rest of the tournament was a commercial event in which they had property rights as organisers.

RM: So English fans should have to pay or subscribe to watch group matches which don’t involve England? An ambitious move no doubt, but a tall order given the broad discretion given to Member States when identifying events for their lists, wasn’t it?

AT: Exactly, and the European Commission’s defence handled it comfortably. The General Court found that the World Cup could legitimately be regarded as a single event of major importance, and that the restrictions on UEFA/FIFA’s property rights were proportionate  (see T-385/07 FIFA v European Commission, 17 February 2011 (GC) [2011] ECR II-205 (Belgian listing); T-68/08 FIFA v European Commission, 17 February 2011 (GC); [2011] ECR II-349 (UK listing) and T-55/08, UEFA v European Commission, 17 February 2011 (GC); [2011] ECR II-271 (UK EURO listing)).

RM: A comfortable win then - but that wasn’t to be the end of it. Showing the resourcefulness characteristic of all top-flight teams, UEFA/FIFA appealed the decision, leading to the second installment which we have just watched.  Before we get look at how the game unfolded, let’s take a look at what Advocate-General Jääskinen said in his Opinion of 12 December 2012 – his expert pre-match prognosis. Would FIFA/UEFA be able to turn the tables? Not for the AG! Although he disagreed with the General Court’s analysis of UEFA and FIFA’s right to property, “the European Union legislature is justified in imposing limitations or restrictions” on that right (see [43]). He stressed the importance of remembering that “Member States have significant freedom of action in drawing up the national lists” (see, e.g. at [120]) and that ultimately “since the weighing of the interests which may be taken into account for the purpose of applying the principle of proportionality in respect of derogations from the fundamental freedoms has already been carried out by the European Union legislature, the role of the Commission must be understood as subsidiary and necessarily limited” (at [122]). The AG proposed that the Court dismiss the three appeals – which would mean an early bath for the regulators I’m afraid.

Over to the action now - let’s see if the Court agreed…..

AT: Straight away we saw similar themes here, Ravi. The Court had a word with UEFA/FIFA, telling them that “[the AVMS] is based on the premise that considerable social and cultural differences exist within the European Union” as concerns the importance of events to the public (FIFA v COM (BE), [13]), so it is essentially up to the Member States to decide what events are of public importance, and the Commission’s review is limited to checking whether they have committed a “manifest error of assessment” ([20]). Much as the AG predicted, so far.

RM: And that’s key, Alex, because UEFA/FIFA’s arguments about their rights to property and their freedom to provide services couldn’t succeed on their own: the Court recognises that “a valid designation of an event as being of major importance leads to inevitable obstacles to [the exercise of those rights], obstacles which the European Union 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’ (UEFA v COM (UK), [20]). So, to win this, they had to show that the European Commission’s approval of the Member States’ designations was invalid. Otherwise, the restrictions were going to be proportionate.

AT: UEFA/FIFA ran their arguments about “gala” games again: the legislation, they argued, does not allow a whole tournament to be designated as a public interest event. They had a bit more joy with that tactic before the Court: it accepted that, in terms of the legislation itself, the World Cup / Euros must be regarded as events which are, “in principle, divisible into different matches or stages, not all of which are necessarily capable of being characterised as an event of major importance” (UEFA v COM (UK), [38]); FIFA v COM (BE), [35]; FIFA v COM (UK), [35]). The General Court had erred in not requiring reasons to be given for the treatment of the entire championships as a single event (UEFA v COM (UK), at [45], FIFA v COM (BE) at [41] and FIFA v COM (UK) at [42]).

RM: But that wasn’t enough to win UEFA/FIFA the game. The Court pointed out that, in approving the national decisions, the Commission relied on the information provided by Belgium and the United Kingdom that the whole tournament – including “non-gala” games – had traditionally been broadcast for free and attracted large audiences (UEFA v COM (UK) [53]; FIFA v COM (BE), [50] and FIFA v COM (UK) [50]).

AT: So essentially, if Whitehall says that all the matches in the tournament are of importance to the British public – unsurprising, given the England team’s performances – Brussels can hardly say it got it wrong just because it concerned the entirety of a big tournament. It looks like UEFA/FIFA are going to have to take this restriction of their property rights on the chin…

RM: Well there you have it – a big night for broadcasters and spectators alike. It also means that we can look forward to seeing you right here on the BBC for Euro 2016. No doubt England fans will suffer the usual dismal disappointment, but there will be plenty of other exciting games to watch. All, of course, of ‘major importance’.