Soccer Finals Broadcasts Remain Free in Europe

     (CN) – World Cup and European Football Championship finals are “events of major importance for society” that should be broadcast on free open television, Europe’s highest court ruled Thursday.
     The decision ends a long fight by World Cup organizer Federation Internationale de Football Association (FIFA) and the Union of European Football Associations (UEFA) – which organizes the Euro finals – to keep major soccer matches as exclusive, pay-per-view broadcast events.
     EU law allows member states to deny the sale of exclusive broadcasting rights if it would deprive viewership to a substantial portion of the public. Belgium and the United Kingdom listed the World Cup and European Football Championship finals as important events and submitted their lists to the European Commission for approval.
     After the commission gave the countries the go-ahead to force free televised soccer matches, FIFA and the UEFA filed objections with the EU’s General Court. The organizations claimed that regulators could not approve of “non-prime” games, since a large portion of their revenue comes from the sale of exclusive TV deals.
     The lower court dismissed the suit, however, agreeing that a collection of matches can be regarded as a single event and that even non-prime matches can be considered significant when they involve national teams. Acknowledging that its decision could affect the value of the associations’ broadcast rights, the court nevertheless said that the restriction on the freedom of services and establishment was justified to protect the public’s right to information.
     FIFA and the UEFA appealed to the Court of Justice of the European Union, which affirmed member states’ rights to determine events of major importance in a trio of opinions. Furthermore, the high court said that the commission’s review of such lists should be limited to timeliness of the request and a cursory examination of the “importance” designation.
     In its first opinion on the UEFA’s action, the Luxembourg-based high court rejected the organization’s call to divide the European Football Championship – known as the Euro – into a series of “gala” and “non-gala” matches for broadcast purposes.
     “It is not disputed that the qualifying matches prior to the final stage do not in general attract a level of interest from the general public of a member state which is comparable to that generated during the final stage,” the court wrote. “Only certain specific qualifying matches, namely those involving the national team of the member state concerned or those of other teams in the same qualification group as that team, are likely to generate such interest.”
     The court continued: “In addition, it cannot reasonably be disputed that the importance of ‘gala’ matches is, in general, superior to that accorded to matches in the final stage of the Euro which precede them, namely matches in the group stage. It can thus not be submitted that the importance accorded to matches in the group stage is equivalent to that of gala matches and, therefore, that all the matches in the group stage, without distinction, form part of a single event of major importance, just like ‘gala’ matches. Thus, the designation of each match as being an event of major importance may differ from one member state to another.”
     And while the General Court incorrectly deemed the entire Euro series to be a single event, the UEFA failed to show that the U.K.’s designation of the series as an event of major importance amounted to “a manifest error of assessment.”
     In a second opinion the court also found that FIFA had failed to prove that the commission carried out an inadequate review of Belgium’s request to designate portions of the World Cup tournament as important to its French and Flemish communities. And the high court rejected the organization’s contention that its property rights had been infringed upon by allowing so many free broadcasts.
     “FIFA’s property rights were affected already by EU law and that that effect may, in principle, be justified by the objective of protecting the right to information and ensuring wide access by the public to television coverage of events of major importance,” that opinion stated. “Secondly, given that the matches in the final stage of the World Cup in their entirety were validly designated by the Belgian authorities as an event of major importance, the commission was required to examine only the effects of that designation on FIFA’s property rights which exceeded those intrinsically linked to the inclusion of that event in the list of events designated by those authorities.
     “In the present case, FIFA did not produce before the General Court any evidence enabling it to find that the effects on FIFA’s right to property of the designation of the matches in the final stage of the World Cup, in their entirety, as an event of major importance were excessive,” the justices added.
     Finally, the high court said in a third opinion that – despite FIFA’s arguments – Belgian and U.K. authorities followed proper procedure when lodging their requests with the commission.
     “The obligation of clarity and transparency, laid down in EU law, seeks to prevent conduct on the part of the competent national authorities from negating the effectiveness of provisions of European Union law relating to a fundamental freedom,” the justices wrote. “In the light of that case-law, the designation of an event as being of major importance must be made in accordance with objective criteria known in advance, so as to limit the discretion vested in the member states so that it is not exercised arbitrarily.”
     “For the same reasons the national procedure must determine in advance the authority responsible for that designation and fix the conditions under which interested parties or, where appropriate, certain advisory bodies may submit observations to it before it makes its decision,” they added. “In that regard, given the impact of such a decision on the broadcasting rights to an event, it is necessary that the broadcasters concerned and the holders of those rights have the possibility of submitting observations to that authority. Nonetheless, the requirement of clarity and transparency requires that those interested parties and advisory bodies be able to submit observations in relation only to the essential elements on the basis of which that authority is required to make its decision. Consequently, there is nothing to preclude a member state from submitting at a later point in time additional information to the commission which confirms that decision and which may also relate to a period after the date of adoption of the list of events of major importance.
     “That was precisely the procedure followed in the present case.”

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