Standing to Sue, Direct and Individual Concern and Panem et Circenses: Case C-125/06 P
You'll recall that Article 230 §4 EC requires that individuals demonstrate that they are directly and individually concerned by an act which is not addressed to them. In its classic statement in Case 25/62 Plaumann v Commission, the Court of Justice held that persons other than those to whom a decision is addressed may claim to be individually concerned only if that decision affects them by reason of certain attributes which are peculiar to them or by reason of circumstances in which they are differentiated from all other persons and by virtue of these factors distinguishes them individually just as in the case of the person addressed by such a decision.
In its judgment in Case T-33/01 Infront WM v. Commission, the Court of First Instance held that a Infront, which owned the exclusive rights to broadcast certain soccer matches in European countries, was directly and individually concerned by a Commission decision that approved a measure taken by the British authorities under Article 3a of Directive 89/552/EC, the TV without frontiers directive. That measure, as inserted by Directive 97/36/EC, allowed national authorities to strip broadcasters of their exclusive rights to broadcast TV programs of "major importance for society" so that a substantial portion of the population could see them. The British authorities, applying the Juvenal's metaphor of panem et circenses, decided that the sports broadcasts of which Infront owned the exclusivity came within that category and deprived Infront of the exclusive right to transmit them in the United Kingdom. The British authorities notified their decision to the Commission and the Commission took a decision in its turn approving the British measure. Infront then challenged the Commission measure and won in the Court of First Instance.
The Court of First Instance held that Infront was 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. It also held that Infrant was individually concerned by the Commission decision because it concerns Infront by reason of a characteristic peculiar to it, namely its capacity as the exclusive holder of the TV broadcasting rights for one of the designated events. Although Infront, in its capacity as broker of the relevant television broadcasting rights is not expressly covered by the national measures approved by the Commission, the effect of the measure was to 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.
The Commission then appealed the judgment in Case T-33/01 to the Court of Justice on the point of standing.
The Court of Justice in its judgment in Case C-125/06 P upheld the ruling of the Court of First Instance.
The Court of Justice held first that Infront was directly concerned by the Commission measure since it imposes certain restrictions on broadcasters where they envisage broadcasting designated events for which Infront acquired exclusive rights and those restrictions are linked to the circumstances in which those broadcasters acquire the TV broadcasting rights to designated events from Infront. Consequently, the effect of the measures adopted by the United Kingdom and the Commission decision is to subject the rights held by Infront to new restrictions which did not exist when it acquired those broadcasting rights and which render their exercise more difficult. Those new restrictions were imposed by the Commission measure and the member States implementing it were left with no discretion as to how to apply it (see, Case C-386/96 P Dreyfus v. Commission, paragraph 43).
The Court also held that Infront was individually concerned because the Commission decision altered a right acquired by Infront prior to its adoption (see Joined Cases 106/63 and 107/63 Toepfer and Getreide-Import Gesellschaft v. Commission, paragraph 411). It found that Infront acquired those exclusive rights prior to the adoption of the Commission decision and that, at that time, there were only six companies which had made substantial investments in the acquisition of TV broadcasting rights to events in that list. Thus, Infront was perfectly identifiable at the time when the contested decision was adopted.
What is interesting in this judgment is that the Court finds that an affectation of exclusive rights held by the plaintiff, not their abolition, is enough to give the plaintiff standing.
We've not given much thought to this, but this caselaw could soon be superseded - on the issue of individual concern - by the new Article 263 §4 of the Treaty on the Functioning of the European Union as amended by the Lisbon-Reform Treaty that provides that an individual has standing to challenge "a regulatory act which is of direct concern to them and does not entail implementing measures". Provided of course that the Commission measure impugned is characterized as a "regulatory act" which is not defined.
For a previous post on standing, look here.
