Court of Justice of the European Communities (including Court of First Instance Decisions)

ORDER OF THE PRESIDENT OF THE COURT

16 December 2009 (*)

(References for a preliminary ruling – Application to participate in the proceedings – Rejection)

In Joined Cases C-‘403/08 and C-‘429/08,

REFERENCES for a preliminary ruling under Article 234 EC from the High Court of Justice of England and Wales, Chancery Division, and the High Court of Justice of England and Wales, Queen’s Bench Division (Administrative Court), made by decisions of 11 July and 28 July 2008, received at the Court on 17 September and 29 September 2008 respectively, in the proceedings

The Football Association Premier League Ltd,

NetMed Hellas SA,

Multichoice Hellas SA

v

QC Leisure,

David Richardson,

AV Station plc,

Malcolm Chamberlain,

Michael Madden,

SR Leisure Ltd,

Philip George Charles Houghton,

Derek Owen (C-403/08),

and

Karen Murphy

v

Media Protection Services Ltd (C-429/08),

THE PRESIDENT OF THE COURT,

after hearing the Advocate General, Mrs J. Kokott,

makes the following

Order

1        These references for a preliminary ruling concern the validity and interpretation of Directive 98/84/EC of the European Parliament and of the Council of 20 November 1998 on the legal protection of services based on, or consisting of, conditional access (OJ 1998 L 320, p. 54) and the interpretation of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (OJ 2001 L 167, p. 10), Council Directive 93/83/EEC of 27 September 1993 on the coordination of certain rules concerning copyright and rights related to copyright applicable to satellite broadcasting and cable retransmission (OJ 1993 L 248, p. 15) and Articles 12 EC, 28 EC to 30 EC, 49 EC and 81 EC.

2        The references were made in the course of (i) proceedings brought by The Football Association Premier League Ltd, NetMed Hellas SA and Multichoice Hellas SA against QC Leisure, Mr Richardson, AV Station plc, Mr Chamberlain, Mr Madden, SR Leisure Ltd, Mr Houghton and Mr Owen and (ii) proceedings brought by Ms Murphy against Media Protection Services Ltd. In both cases, the proceedings concern the use in the United Kingdom of decoder cards intended for other Member States to gain access to satellite retransmissions of live English Premier League football matches.

3        By separate order of 25 November 2008, which was sent to the Court on 23 December 2008, the High Court of Justice of England and Wales, Chancery Division, accepted the Union of European Football Associations (‘UEFA’), British Sky Broadcasting Ltd (‘Sky’), Setanta Sports Sàrl (‘Setanta’), Group Canal Plus SA and The Motion Picture Association as parties to the proceedings which gave rise to the reference for a preliminary ruling in Case C-403/08, but stated that their participation would be confined to the submission of observations and, where appropriate, to the oral procedure before the Court in connection with the present references for a preliminary ruling.

4        By applications of 2, 3, 9 and 26 February 2009 respectively, Sky, Setanta, The Motion Picture Association and UEFA (‘the applicants’) sought leave to submit to the Court observations on the questions referred by the national courts.

5        In that regard, it should be borne in mind that participation in cases of the kind referred to in Article 267 TFEU is governed by Article 23 of the Statute of the Court of Justice of the European Union, which limits the right to submit statements of case or observations to the Court to: (i) the parties; (ii) the Member States; (iii) the European Commission and, where appropriate, the institution, body, office or agency of the European Union which adopted the act the validity or interpretation of which is in dispute; (iv) the States, other than the Member States, which are parties to the Agreement on the European Economic Area; (v) the EFTA Surveillance Authority; and (vi) the non-member States concerned. Article 23 of the Statute of the Court does not leave the Court with any discretion to extend that right to natural or legal persons in respect of whom express provision has not been made. By the term ‘parties’, Article 23 of the Statute of the Court refers only to the parties to the action before the national court (see, to that effect, Case 62/72 Bollmann [1973] ECR 269, paragraph 4).

6        Subsequent to its reference for a preliminary ruling and in accordance with its own rules of procedure, the High Court of Justice of England and Wales, Chancery Division, accepted the five legal persons referred to in paragraph 3 above as interveners in the proceedings. The Court has stated in that regard that a person who has not sought and been granted leave to intervene before the national court is not entitled to submit observations to the Court under Article 23 of the Statute of the Court (see, to that effect, the order of the President of the Court of 26 February 1996 in Case C-181/95 Biogen [1996] ECR I-717, paragraph 6), under which, a contrario, any person who has been granted leave to intervene before the national court is entitled to submit observations to this Court.

7        While the spirit of cooperation which must prevail in the exercise of the functions assigned by Article 267 TFEU to the national courts, on the one hand, and the Community judicature, on the other, requires the Court of Justice to have regard to the particular responsibilities of the national court, it implies at the same time that the national court, in the use which it makes of the possibilities offered by that provision, must have regard to the particular function entrusted to the Court in this field (see, to that effect, Case 244/80 Foglia [1981] ECR 3045, paragraph 20).

8        Article 267 TFEU entrusts to the Court the duty of assisting in the administration of justice in the Member States by meeting objective requirements inherent in the resolution of genuine disputes. In exercising its jurisdiction, the Court must have regard to the proper working of the procedure laid down in that provision (see, to that effect, Foglia, paragraphs 18 and 19).

9        In the present case, it is obvious that the five legal persons in question were not parties to the action at the time when the High Court of Justice of England and Wales, Chancery Division, made its order for reference which, under the first paragraph of Article 23 of the Statute of the Court, stays proceedings before it. Furthermore, it is apparent from the separate order of that court of 25 November 2008 that the applications have been made only with a view to participating in the proceedings before the Court and that the applicants do not intend to play an active part in the proceedings before the national court after delivery of the judgment giving a preliminary ruling.

10      Although the five legal persons in question have a definite interest in the answers to be given by the Court to the questions referred by the national court, that does not mean that they are to be accorded the status of parties for the purposes of Article 23 of the Statute of the Court. Such a provision would moreover be pointless if any party having an interest were recognised as having the right to participate in the proceedings provided for under Article 267 TFEU (see, to that effect, the order in Biogen, paragraph 6).

11      Consequently, the applications to participate in the proceedings, submitted respectively by UEFA, Sky, Setanta and The Motion Picture Association, must be rejected.

 Costs

12      There is no need to rule on costs as none have been incurred.

On those grounds, the President of the Court hereby orders:

1.      The applications to participate in the proceedings, submitted respectively by the Union of European Football Associations (UEFA), British Sky Broadcasting Ltd, Setanta Sports Sàrl and The Motion Picture Association, are rejected.

2.      There is no need to rule on costs.

[Signatures]

* Language of the case: English.