The EFTA Court delivered its judgment in Case E-21/13 FIFA v EFTA Surveillance Authority on 3 October 2014. As I was the agent for the defendant in that case, I wanted to publish a post to it, even though it is… no big news as the EFTA Court reiterates the case-law of the Court of Justice (“CoJ”).
Background to the case/Contested decision:
In that case, FIFA challenged a decision by the EFTA Surveillance Authority (“the Authority”), in which the latter approved the inclusion in the Norwegian list of events of all the matches played at the final stage of the FIFA World Cup.
Directive 2010/13 (“the Directive”) concerning the provision of television broadcasting activities authorises the EEA States to 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 public of the possibility of following those events on free television. Norway decided to draw up a list of such major events, which included the final stage of the FIFA World Cup in its entirety. It then, pursuant to the procedure set out in Article 14 of the Directive notified its draft legislation to the Authority which, upon verification, decided that it was compatible with EEA law.
FIFA challenged the Decision before the EFTA Court, arguing that not all matches of the final stage of the World Cup constitute events of major importance for the general public in Norway. In particular, FIFA, following a distinction of the matches of the World Cup into “prime” (consisting of the opening match, the semi-finals, the final and all matches of the national team of the respective EEA State) and “non-prime”, contested the inclusion in the Norwegian list of the non-prime matches of the final stage of the FIFA World Cup.
Judgment by the EFTA Court:
The EFTA Court, following the precedent set by the CoJ in Cases C-201/11 P UEFA v Commission, C-204/11 P FIFA v Commission and C-205/11 P FIFA v Commission, dismissed the application by FIFA.
In its judgment, the EFTA Court notes, first of all, that the designation by an EEA 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 that context, the EFTA Court points out that the EEA States have a broad discretion when determining the events which are of major importance. The Authority’s role in that respect is limited to determining whether the EEA State has complied with EEA law in exercising its discretion. The Authority exercises, thus, its power of review which is limited to determining whether an EEA State has committed any manifest errors of assessment in designating events as being of major importance. In this respect, the EEA State is required to communicate to the Authority appropriate reasons justifying the designation of an event. However, it cannot be required that the EEA State provides detailed information and figures regarding each element or part of the event which has been notified to the Authority.
In the present case, the EFTA Court continues, the Norwegian authorities have designated all the matches in the final stage of the World Cup as an event of major importance. The reason is that these matches, including the non-prime matches, have special general resonance at national level, as they arouse great interest amongst the Norwegian public. Moreover, the notification to the Authority also stated that the final stage of the World Cup had traditionally been broadcast in Norway on free television channels and commanded large television audiences.
The EFTA Court finds that, in providing such information, the Norwegian authorities enabled the Authority to exercise its power of review and to seek clarification from Norway of the information provided in the notification. The Authority requested such clarifications. There is nothing, the EFTA Court continues, to indicate that the Authority did not exercise its limited power of review or that the Authority failed to examine whether the Norwegian authorities had committed a manifest error of assessment in designating all matches in the final stage of the World Cup as an event of major importance.
The Court thus concludes that the Authority did not commit any manifest errors in holding that the entire final stage of the World Cup satisfies the requirements justifying its characterisation as an event of major importance for Norwegian society and its inclusion on the Norwegian events list.
Furthermore, the EFTA Court considers that the Authority conducted a comprehensive verification of the effects of the listing of the World Cup as an event of major importance and concluded that the effects were compatible with EEA law with regard to the freedom to provide services, property rights and competition law. The Authority took account of the fact that the list will have no retroactive effect.
In particular, the effects on the number of potential competitors, which are presented as being an unavoidable consequence of the obstacles to the freedom to provide services, cannot be considered to be contrary to the articles of the EEA Agreement on competition. Moreover, in respect of the property rights, provided that those restrictions in fact correspond to objectives in the public interest and do not constitute in relation to the aim pursued a disproportionate and intolerable interference, impairing the very substance of the right guaranteed.
The EFTA Court recognises that the Authority has taken account of the fact that the Norwegian measures make provision for situations in which there could be no qualifying buyers for the events listed, ensuring that a non-qualified broadcaster is able to exercise its rights such as to avoid a situation in which the event listed is not broadcast at all. Also, the fact that Norwegian measures provide for arrangements for the relicensing of exclusive rights by non-qualified broadcasters to the qualified ones and a mechanism for dispute resolution between qualified and non-qualified broadcasters in relation to the price of those rights was also taken into account by the Authority. Consequently, the Authority did not err in finding that the Norwegian measures were proportionate.
Finally, in respect of the duty to state reasons, the Court reiterated that the question whether the statement of reasons meets the requisite standard must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter. Thus, the reasoning may be succinct if the persons concerned are familiar with the context of the adopted measure. The Decision mainly concerns broadcasters with an in-depth knowledge of the context in which those decisions are adopted, and that the Authority’s power of review is limited. In those circumstances, the statement of reasons for an the Authority decision adopted pursuant to Article 14(2) of the Directive may be brief.
The EFTA Court’s judgment, upholding the Authority’s Decision, is of major importance for the entire EEA. The Norwegian measures adopted on the basis of the Directive, as approved by the Authority, stand and they have mutual recognition effect throughout the EEA, i.e. all EEA States must ensure that broadcasters under their jurisdiction respect the Norwegian list (as Norwegian broadcasters must respect the lists of other EEA States, as notified and approved by the Commission or the Authority).