CFI, 2nd chamber, October 25, 2001, No T-354/00

THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES (Second Chamber),

Facts and background to the case

1. The European Broadcasting Union (EBU) is a non-profit-making trade association of radio and television organisations which was set up in 1950 and has its headquarters in Geneva (Switzerland). According to Article 2 of its Statutes, as amended on 3 July 1992, the objectives of the EBU are to represent the interests of its members in the programme, legal, technical and other fields, and in particular to promote radio and television programme exchanges by all possible means, such as Eurovision and Euroradio, and any other form of cooperation, among its members and with other broadcasting organisations or groups of such organisations, and to assist its active members in negotiations of any kind or itself negotiate at their request and on their behalf.

2. Eurovision constitutes the main framework for programme exchanges between active members of the EBU. It has been in existence since 1954 and provides the principal means by which the EBU pursues its objectives. Article 3 (6) of the EBU Statutes, as amended on 3 July 1992, states: Eurovision is a TV programme exchange system organised and coordinated by the EBU, based on the understanding that members offer to the other members, on a basis of reciprocity, ... their coverage of ... sports and cultural events taking place in their countries and of potential interest to other members, thereby enabling each other to provide a high quality service in these fields to their respective national audiences. Eurovision members are active members of the EBU and consortia consisting of active EBU members. All active members of the EBU may participate in a system of the joint acquisition and sharing of television rights (and of the costs relating thereto) to international sports events, which are referred to as Eurovision rights.

3. In order to become an active member a broadcasting body must meet the conditions laid down in Article 3 (3) of the Statutes (the membership criteria). Those conditions concern, in particular, the level of national coverage, and the nature and funding of the programming.

4. Until 1 March 1988, the benefit of the services of the EBU and Eurovision was exclusively reserved for their members. However, when the EBU's Statutes were amended in 1988 a new paragraph (paragraph 6) was added to Article 3 providing that contractual access to Eurovision may be granted to associate members and non-members of the EBU.

5. Following a complaint made by Screensport on 17 December 1987, the Commission investigated the compatibility of the rules governing that system of joint acquisition and sharing of television rights to sports events with Article 81 EC. The complaint related in particular to the refusal of the EBU and its members to grant sub-licences for sports events. On 12 December 1988 the Commission sent the EBU a statement of objections concerning the rules governing the acquisition and use of television rights to sports events within the framework of the Eurovision system, which are generally exclusive in nature. The Commission declared itself willing to envisage an exemption in favour of those rules on condition that sub-licences should be granted to non-members, for a substantial share of the rights in question and on reasonable terms.

6. On 3 April 1989 the EBU notified the Commission of its Statutes and other rules on the acquisition of television rights to sports events, the exchange of sports broadcasts in the context of Eurovision and contractual access by third parties to such broadcasts, with a view to obtaining negative clearance or, failing that, an exemption under Article 81 (3) EC.

7. After the EBU agreed to relax the rules for obtaining sub-licences for the broadcasts in question, the Commission adopted Decision 93-403-EEC of 11 June 1993 relating to a proceeding pursuant to Article [81] of the EEC Treaty (OJ 1993 L 179, p. 23), whereby it granted an exemption under Article 81 (3) (the first exemption decision).

8. That decision was annulled by the Court of First Instance in Joined Cases T-528-93, T-542-93, T-543-93 and T-546-93 Métropole télévision and Others v Commission [1996] ECR II-649 (the judgment of 11 July 1996).

9. Since 1987 Métropole télévision (M6) has lodged an application to join the EBU six times. Each time its application has been rejected on the ground that it did not fulfil the membership criteria laid down in the EBU Statutes. Following the EBU's last refusal, M6 filed a complaint with the Commission on 5 December 1997, complaining of the EBU's practices towards it and, in particular, of the systematic a priori refusal of its applications for admission.

10. On 3 April 1998 the EBU amended Article 3 (3) of its Statutes, adding in particular a condition regarding the applicant channel's independence from any sports rights agencies in competition with the EBU; it also adopted new rules interpreting those criteria (the new membership criteria). Those new rules were notified to the Commission on the same day.

11. By decision of 29 June 1999 the Commission rejected the applicant's complaint.

12. The Court of First Instance, in a judgment of 21 March 2001, annulled that decision on the grounds that the Commission had infringed its obligation to state reasons and the obligations which it had when dealing with complaints (Case T-206-99 Métropole télévision v Commission [2001] ECR II-1057).

13. Meanwhile, on 6 March 2000, M6 filed a further complaint with the Commission in which it sought a declaration by the Commission that the new EBU membership criteria restricted competition and could not be granted an exemption under Article 81 (3) EC.

14. On 10 May 2000 the Commission adopted a further exemption decision [Decision 2000-400-EC relating to a proceeding pursuant to Article 81 of the EC Treaty (OJ 2000 L 151, p. 18)] in which it declared, in particular, under Article 81 (3) EC that the provisions of Article 81 (1) of the EC Treaty were inapplicable from 26 February 1993 until 31 December 2005 to notified agreements relating to the joint acquisition of sport television rights, the sharing of the jointly acquired sport television rights, the exchange of the signal for sporting events, the access scheme for non-EBU members to Eurovision sports rights, and the sub-licensing rules relating to the exploitation of Eurovision rights on pay-TV channels (Article 1). The exemption decision was subject to a condition and an obligation (Article 2).

15. In that decision the Commission stated with regard to the membership criteria:

67. The Commission recognises that [the first exemption decision], because of its ambiguous drafting, gave grounds to the interpretation by the Court of First Instance that the Commission had considered the EBU's membership rules to be restrictive of competition and had exempted them, which was actually not the case. Indeed, the conditions for active membership of the EBU set out in Article 3 (3) of the EBU Statutes were not even notified to the Commission by the EBU; only the Eurovision system was notified.

68. The Commission continues to consider that the membership rules of a professional association of broadcasters cannot in themselves restrict competition within the meaning of Article 81 (1) of the EC Treaty. It has to be remembered that many other organisations and associations in Europe, with economic activities in the market, have internal rules establishing conditions for membership comparable to those of the EBU. There can be no obligation on such associations under Article 81 (1) of the EC Treaty to accept members against their will. This is in particular true for associations like the EBU with a market position which does not allow them to eliminate competition ... . Third parties wishing to create similar associations are free to do so.

69. The Commission finds that it is a completely separate issue whether within such an association, restrictions of competition might have been agreed. These possible restrictions will be assessed separately in recitals 71 to 80.

16. On 13 July 2000 M6 brought an action against that decision. It was registered at the Registry of the Court of First Instance as Case T-185-00.

17. By letter of 12 September 2000 (the contested decision) the Commission rejected the complaint of 6 March 2000 as follows:

I find that your complaint contains the same terms and arguments as the complaint you made on 5 December 1997, which was rejected by the Commission in its decision of 29 June 1999. You brought an action against that decision on 15 September 1999. The questions raised in the complaint are therefore now being referred to the Court of First Instance, which will be called upon to consider the various arguments put forward.

There is no change in the current circumstances from those which prevailed in December 1997 to justify a further complaint by M6.

Lastly, on 13 July 2000 you brought an action in the Court of First Instance against the decision of 10 May 2000 exempting the EBU's joint acquisition system. In that action you also raised the matter of the conditions for admission to and participation in the EBU's system, as you did in both complaints, using the same arguments.

In view of all those factors and of the repetitive nature of your complaint of 6 March last, that complaint is totally redundant and has no practical effect as regards the matters submitted for adjudication by the Court of First Instance.

There is therefore no reason to pursue the inquiry.

Procedure and forms of order sought

18. By application lodged at the Registry of the Court of First Instance on 23 November 2000 the applicant brought the present action.

19. By separate document lodged at the Registry of the Court of First Instance on 21 December 2000 the Commission raised an objection of inadmissibility against the application under Article 114 of the Rules of Procedure of the Court of First Instance.

20. The applicant lodged its observations on that objection on 12 February 2001.

21. By document lodged at the Registry of the Court of First Instance on 17 April 2001, the EBU applied for leave to intervene in this case in support of the form of order sought by the defendant.

22. In its objection of inadmissibility the Commission claims that the Court should:

- declare the application inadmissible;

- order the applicant to pay the costs.

23. In its observations on the objection of inadmissibility the applicant contends that the Court should:

- declare the application admissible;

- order the Commission to pay the costs.

24. By letter of 5 April 2001 the Court of First Instance requested the applicant to inform it whether it considered it appropriate to continue the proceedings, in view of the fact that if the contested decision were to be annulled the Commission might in that case be obliged to adopt a position on the new membership criteria, and that the Commission had already adopted such a position in Decision 2000-400, which has been contested by the applicant in Case T-185-00.

25. The applicant replied to the Court by fax of 19 April 2001. In its reply it gave two reasons for considering it appropriate to continue the proceedings in this case. First, in Decision 2000-400 the Commission did not adopt a position on all the points raised in the applicant's complaint of 6 March 2000 and, in particular, on the complaints made by the applicant that the new membership criteria could not be given an exemption under Article 81 (3) EC. It states in that regard that since the Commission does not deal with these points in its decision of 10 May 2000, termination of these proceedings would deprive M6 of a reply to the main arguments it has put forward.

26. Second, the applicant contends that, since its application is based on infringement of certain procedural rules for dealing with complaints, it is still in its interest for that infringement to be censured by a judgment of the Court of First Instance.

Admissibility

27. Under Article 113 of its Rules of Procedure the Court of First Instance may at any time of its own motion consider whether there exists any absolute bar to proceeding with an action, including, as the Court has consistently held, the conditions for the admissibility of an action for annulment, and is to give its decision in accordance with Article 114(3) and (4) (see, in particular, order of the Court of First Instance in Case T-100-94 Michailidis and Others v Commission [1998] ECR II-3115, paragraph 49 and the case-law cited). The Court of First Instance is not therefore bound solely by the defendant's pleas in law in the objection of inadmissibility.

28. In the present case the Court considers it has obtained sufficient information from the documents in the case and has decided, pursuant to that article, to adjudicate without further steps in the proceedings.

29. It is settled case-law that a natural or legal person may, pursuant to the fourth paragraph of Article 230 EC, contest only measures producing binding legal effects such as to affect the interests of that person by bringing about a distinct change in his legal position (Case T-64-89 Automec v Commission [1990] ECR II-367, paragraph 42, and order of the Court of First Instance in Case T-235-95 Goldstein v Commission [1998] ECR II-523, paragraph 37).

30. It is therefore necessary to consider whether the contested decision affects the interests of the applicant by bringing about a distinct change in its legal position. That must be the case in order for the applicant to establish an interest in having the contested measure annulled.

31. Before taking the contested decision, the Commission adopted Decision 2000-400, the provisions of which were referred to in paragraph 15 above. In that decision the Commission considered that the EBU membership criteria did not fall within the scope of Article 81 (1) EC because the membership rules of a professional association of broadcasters cannot in themselves restrict competition within the meaning of Article 81 (1) of the EC Treaty and found that it was a completely separate issue whether within such an association, restrictions of competition might have been agreed.

32. As the Commission, in the contested decision, simply referred to the position it had already adopted clearly and expressly in its Decision 2000-400, the contested decision constitutes an act which merely confirms Decision 2000-400 (see Case 26-76 Metro v Commission [1977] ECR 1875, paragraph 4).

33. As regards whether it is possible to contest a confirmatory act, the applicant cites the case-law to the effect that an action for the annulment of a confirmatory decision is inadmissible only if the confirmed decision has become final vis-à-vis the person concerned without any action having been brought before the Court within the prescribed period. Where, as in the present case, the applicant contested the confirmed decision within the prescribed period, he would be entitled to contest either the confirmed decision or the confirmatory decision or both (judgment of the Court of Justice in Joined Cases 193-87 and 194-87 Maurissen and European Public Service Union v Court of Auditors [1989] ECR 1045, paragraph 26 and judgment of the Court of First Instance in Case T-64-92 Chavane de Dalmassy and Others v Commission [1994] ECR-SC I-A-227 and II-723, paragraph 25).

34. It is true that the concept of a confirmatory act has been developed in case-law in particular in order to prevent the bringing of an action which would have the effect of causing expired limitation periods to begin to run again (see, in particular, Case T-188-95 Waterleiding Maatschappij v Commission [1998] ECR II-3713, paragraph 108). Consequently, in situations where there has been no such circumvention of the time-limits for bring an action, the Community judicature has on some occasions acknowledged the admissibility of claims directed against both a confirmed decision and a confirmatory decision in the same action.

35. That solution cannot, however, be applied where as in the present case the confirmed decision and the confirmatory decision are contested in two separate actions and the applicant can defend his point of view and put his arguments in the first action.

36. That conclusion cannot be invalidated by any of the arguments the applicant has put forward to establish that it was the complaint of 6 March 2000 alone which caused the Commission to adopt a position on the new membership criteria and that therefore the contested decision contained a new element capable of providing binding legal effects of a nature such as to affect the interests of the applicant by bringing about a distinct change in its legal position.

37. It is clear from the correspondence the applicant sent the Commission, which is on the file, in particular the letters of 16 July 1997 and 21 April and 11 December 1998, that at the time of the administrative procedure relating to Decision 2000-400 the applicant had already drawn the Commission's attention to the new EBU membership criteria and to the fact that in its view the changes which had been made did not enable a reply to be given to the criticisms made by the Court of First Instance in its judgment of 11 July 1996 and so did not enable the Commission to exempt those criteria. Therefore, when the Commission adopted Decision 2000-400 it considered that the EBU membership criteria, including the new criteria, did not restrict competition, and it did so in full knowledge of the applicant's position with regard to those membership criteria.

38. Furthermore, since the Commission considered in Decision 2000-400 that the membership criteria, including the new criteria, did not fall within the scope of Article 81 (1) EC, it cannot be accused of failing to deal with the question whether the new membership criteria could be granted an exemption under Article 81 (3) EC. In those circumstances, the applicant's argument that it retains an interest in this action because the Commission did not, in Decision 2000-400, cover all the points raised in its complaint of 6 March 2000 is wholly unfounded.

39. Moreover, the question whether the membership criteria restrict competition and whether the Commission can grant the Eurovision system an exemption by disregarding criteria which enable a television channel to access that system as a member, lies at the very heart of the issues raised by the applicant in Case T-185-00 in relation to Decision 2000-400.

40. Lastly, the argument seeking to justify the admissibility of this action, based on an interest of the applicant in having infringements allegedly committed by the Commission in dealing with the complaints censured must be rejected. Since the Commission, in the contested decision, merely referred to the position it had already adopted in an earlier decision, which had been contested by the applicant, the pleas raised by the applicant against the contested decision cannot in themselves justify bringing a further action before the Court of First Instance.

41. It follows that the application must be dismissed as inadmissible.

42. Since the present application is inadmissible and the Court has granted the form of order sought by the defendant there is no need to adjudicate on the EBU's application for leave to intervene.

Costs

43. Under Article 87 (2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party's pleadings. Since the applicant has been unsuccessful, it must be ordered to pay the costs, as applied for by the Commission.

On those grounds,

THE COURT OF FIRST INSTANCE (Second Chamber)

hereby orders:

1. The application is dismissed as inadmissible.

2. The applicant is ordered to pay the costs.

3. There is no need to adjudicate on the application made by the European Broadcasting Union for leave to intervene.