Summary
1. The concept of "provision of services" referred to in Articles 59 and 60 of the
Treaty covers the transmission, via cable network operators established in one
Member State, of television programmes supplied by a broadcasting body
established in another Member State, even if that body established itself there
in order to avoid the legislation applicable in the receiving State to domestic
broadcasters.
2. A Member State cannot be denied the right to take measures to prevent the
exercise by a person providing services whose activity is wholly or principally
directed towards its territory of the freedoms guaranteed by the Treaty for the
purpose of avoiding the rules which would be applicable to him if he were
established within that State.
The Treaty provisions on freedom to provide services cannot therefore be
interpreted as precluding a Member State from treating as a domestic
broadcaster a broadcasting body constituted under the law of another Member
State and established in that State but whose activities are wholly or principally
directed towards the territory of the first Member State, if that broadcasting
body was established there in order to avoid the rules adopted by the first
Member State as part of a cultural policy intended to establish a pluralist and
non-commercial radio and television broadcasting system.
Parties
In Case C-23/93,
REFERENCE to the Court under Article 177 of the EEC Treaty by the Afdeling
Rechtspraak of the Netherlands Raad van State for a preliminary ruling in the
proceedings pending before that court between
TV10 SA
and
Commissariaat voor de Media,
on the interpretation of the provisions of the EEC Treaty on the provision of
services,
THE COURT (Fifth Chamber),
composed of: J.C. Moitinho de Almeida, President of the Chamber, R. Joliet
(Rapporteur), G.C. Rodríguez Iglesias, F. Grévisse and M. Zuleeg, Judges,
Advocate General: C.O. Lenz,
Registrar: L. Hewlett, Administrator,
after considering the written observations submitted on behalf of:
° TV10 SA, by M. van Empel and A.J.H.W.M. Versteeg, of the Amsterdam Bar,
° the Commissariaat voor de Media, by G.H.L. Weesing, of the Amsterdam Bar,
° the German Government, by E. Roeder, Ministerialrat in the Federal Ministry of
Economic Affairs, acting as Agent,
° the French Government, by P. Pouzoulet, Deputy Director in the Legal Affairs
Directorate of the Ministry of Foreign Affairs, and J.-L. Falconi, Foreign Affairs
Secretary in the Legal Affairs Directorate of that Ministry, acting as Agents,
° the Netherlands Government, by A. Bos, Legal Adviser in the Ministry of
Foreign Affairs, acting as Agent,
° the Commission of the European Communities, by H. Etienne, Principal Legal
Adviser, and P. Van Nuffel, of its Legal Service, acting as Agents,
having regard to the Report for the Hearing,
after hearing the oral observations of TV10 SA, the Commissariaat voor de
Media, the French Government, the Netherlands Government, represented by
J.W. De Zwaan, Assistant Legal Adviser in the Ministry of Foreign Affairs, acting
as Agent, and the Commission at the hearing on 14 April 1994,
after hearing the Opinion of the Advocate General at the sitting on 16 June
1994,
gives the following
Judgment
Grounds
1 By order of 11 May 1992, received at the Court on 26 January 1993, the
Afdeling Rechtspraak (Administrative Appeals Section) of the Netherlands Raad
van State (Council of State) referred to the Court for a preliminary ruling under
Article 177 of the EEC Treaty two questions on the interpretation of the Treaty
provisions on the freedom to provide services, in order to assess the
compatibility with Community law of rules of a Member State restricting the
activities of broadcasters established in other Member States.
2 Those questions were raised in proceedings between TV10, a public limited
company governed by Luxembourg law which is a commercial broadcasting
undertaking established in Luxembourg, and the Commissariaat voor de Media,
the supervisory body for broadcasting in the Netherlands, on the application of
provisions of the Netherlands Law of 21 April 1987 governing the supply of radio
and television programmes, radio and television licence fees and press subsidies
(Staatsblad No 249 of 4 June 1987, hereinafter "the Mediawet").
3 The Mediawet lays down two different sets of rules for broadcasting of
Netherlands origin and for transmission of programmes broadcast from abroad.
4 With respect to Netherlands broadcasting, Article 31 of the Mediawet
prescribes that air time for radio and television programmes on the national
network is to be allocated to broadcasting associations by the Commissariaat
voor de Media. Under Article 14 of the Mediawet, broadcasting associations are
associations of listeners or viewers having legal personality, established to
represent a particular social, cultural, religious or philosophical persuasion set
out in their statutes. They must provide a varied programme. Articles 99 to 102
of the Mediawet further provide for a method of financing intended to maintain
the pluralist and non-commercial character of domestic broadcasting
associations.
5 With reference to the transmission of foreign audiovisual programmes via the
cable network, Article 66 of the Mediawet, in the version in force at the time,
stated:
"1. The operator of a cable network may:
(a) transmit programmes which are broadcast by a foreign broadcaster by
means of a broadcasting transmitter and which may, most of the time, be
received directly in the area served by the cable network by means of a normal
individual aerial with a reasonable standard of quality;
(b) transmit programmes other than those mentioned in (a) which are broadcast
by a foreign broadcaster or a group of broadcasters as broadcast programmes,
in accordance with the legislation in force in the broadcasting country ...".
6 According to the case file, TV10 was in fact established in Luxembourg and
took steps to broadcast in accordance with Luxembourg law. It therefore
obtained authorization from the Luxembourg authorities to transmit its
programmes via the Astra satellite, which directs them to Netherlands territory.
The Commissariaat voor de Media has noted, however, that day-to-day
management of TV10 is largely in the hands of Netherlands nationals and that
its programmes are intended to be transmitted by cable networks primarily in
Luxembourg and the Netherlands. It has further noted that TV10 has concluded
contracts with cable network operators in Luxembourg and the Netherlands only
and not in other States of the European Community. The Commissariaat voor de
Media has also stated that although the broadcasting of programmes, purchase
and sub-titling of foreign programmes, directing and final editing are carried out
in Luxembourg, the target audience is the Dutch public, most of those employed
for TV10' s various programmes are from the Netherlands and the
advertisements are made in the Netherlands.
7 On that basis the Commissariaat voor de Media, in a decision of 28 September
1989, held that TV10 had established itself in Luxembourg in order to escape
the Netherlands legislation applying to domestic associations. It concluded that
it could not be regarded as a foreign broadcaster within the meaning of Article
66(1) of the Mediawet, and that its programmes could therefore not be
transmitted by cable in the Netherlands.
8 Following that decision TV10 decided not to broadcast any programmes.
However, it appealed against the decision, under the Wet Administratieve
Rechtspraak Overheidsbeschikkingen (Law on administrative jurisdiction over
decisions of authorities), to the Administrative Appeals Section of the Raad van
State.
9 In its judgment of 11 May 1992 the Raad van State first confirmed the
analysis by the Commissariaat voor de Media and shared its view that TV10 had
established itself in Luxembourg with the evident intention of avoiding the
Mediawet and could not be regarded as a foreign broadcaster within the
meaning of Article 66 of that Law. It further held that the Commissariaat' s
decision infringed neither the principle of equality, nor Article 10 of the European
Convention for the Protection of Human Rights and Fundamental Freedoms
("the European Convention on Human Rights"), which guarantees the right to
freedom of expression, nor Article 14 of that Convention, which prohibits
discrimination with reference to the rights and freedoms it guarantees.
10 The Raad van State referred to the judgments in Case 33/74 Van Binsbergen
v Bedrijfsvereniging voor de Metallnijverheid [1974] ECR 1299 and Case 52/79
Procureur du Roi v Debauve [1980] ECR 833 and stated inter alia that a Member
State has the right to take measures to prevent the exercise by a person
providing services whose activities are entirely or principally directed toward its
territory of the Treaty provisions on the freedom to provide services for the
purpose of avoiding the professional rules of conduct which would be applicable
to him if he were established within that Member State. However, in view of the
judgment in Case 79/85 Segers v Bedrijfsvereniging voor Bank- en
Verzekeringswezen, Groothandel en Vrije Beroepen [1986] ECR 2375, the Raad
van State was uncertain how to assess "activities directed from another Member
State by a broadcaster whose undertaking has been constituted under the laws
of that other Member State and is formally established there".
11 It therefore considered it necessary to request a preliminary ruling on the
following two questions:
"1. Where a broadcaster not eligible for access to the cable network in Member
State A transmits programmes from Member State B with the manifest purpose,
as shown by objective circumstances, of thereby avoiding the legislation of the
Member State to which the programmes are primarily but not exclusively
transmitted, is that a case of provision of services with a relevant cross-border
element for the purposes of Community law?
2. Are restrictions imposed by the receiving Member State on the provision of
the services described in Question 1, whereby a broadcaster is regarded as a
domestic organization despite the fact that it has chosen to establish itself in
another Member State and is therefore denied access for its programmes to the
national cable network if they do not comply with the access conditions
applicable to domestic broadcasters ° relying on the fact that the broadcaster
established in another Member State is seeking to evade the legislation of the
receiving Member State designed to maintain the pluralist and non-commercial
character of national broadcasting ° compatible with Community law, having
regard inter alia to Articles 10 and 14 of the European Convention on the
Protection of Human Rights and Fundamental Freedoms?"
Applicability of the rules on freedom to provide services
12 By Question 1 the national court essentially asks whether the concept of
"provision of services" referred to in Articles 59 and 60 of the Treaty covers the
transmission, via cable network operators established in one Member State, of
television programmes supplied by a broadcasting body established in another
Member State, even if that body established itself there in order to avoid the
legislation applicable in the receiving State to domestic broadcasters.
13 Before considering that question, the Court notes that it has already held in
Case 155/73 Sacchi [1974] ECR 409, paragraph 6, that the transmission of
television signals comes, as such, within the rules of the Treaty relating to the
provision of services. In Debauve, cited above, paragraph 8, the Court stated
that there was no reason to treat the transmission of such signals by cable
television any differently.
14 Also in Debauve the Court observed, however, that the provisions of the
Treaty on freedom to provide services cannot apply to activities whose relevant
elements are confined within a single Member State. Whether that is so in a
particular case depends on findings of fact which are for the national court to
establish. In the present case, the Raad van State has established that TV10
was constituted in accordance with Luxembourg law, that the seat of the
company is in the Grand Duchy of Luxembourg and that its intention was to
broadcast to the Netherlands.
15 The circumstance that, according to the Raad van State, TV10 established
itself in the Grand Duchy of Luxembourg in order to escape the Netherlands
legislation does not preclude its broadcasts being regarded as services within
the meaning of the Treaty. That is distinct from the question of what measures a
Member State may take to prevent a provider of services established in another
Member State from evading its domestic legislation. The latter point is the
subject of the Raad van State' s second question.
16 The answer to Question 1 must therefore be that the concept of "provision of
services" referred to in Articles 59 and 60 of the Treaty covers the transmission,
via cable network operators established in one Member State, of television
programmes supplied by a broadcasting body established in another Member
State, even if that body established itself there in order to avoid the legislation
applicable in the receiving State to domestic broadcasters.
The lawfulness of certain restrictions on freedom to provide services
17 By Question 2 the national court essentially asks whether the provisions of
the Treaty on freedom to provide services are to be interpreted as precluding a
Member State from treating as a domestic broadcaster a broadcasting body
constituted under the law of another Member State and established in that State
but whose activities are wholly or principally directed towards the territory of the
first Member State, if that broadcasting body was established there in order to
enable it to avoid the rules which would be applicable to it if it were established
within the first State.
18 The Court has held in Case C-288/89 Collectieve Antennevoorziening Gouda
v Commissariaat voor de Media [1991] ECR I-4007, paragraphs 22 and 23, Case
C-353/89 Commission v Netherlands [1991] ECR I-4069, paragraphs 3, 29 and
30, and Case C-148/91 Veronica Omroep Organisatie v Commissariaat voor de
Media [1993] ECR I-487, paragraph 9, that the Mediawet is intended to establish
a pluralist and non-commercial radio and television broadcasting system and
thus forms part of a cultural policy whose aim is to safeguard the freedom of
expression in the audiovisual sector of the various components, in particular
social, cultural, religious and philosophical ones, of the Netherlands.
19 It also follows from those three judgments that such cultural policy
objectives are objectives of general interest which a Member State may lawfully
pursue by formulating the statutes of its own broadcasting bodies in an
appropriate manner.
20 Moreover, the Court has already held in connection with Article 59 of the
Treaty on the freedom to provide services that a Member State cannot be
denied the right to take measures to prevent the exercise by a person providing
services whose activity is entirely or principally directed towards its territory of
the freedoms guaranteed by the Treaty for the purpose of avoiding the rules
which would be applicable to him if he were established within that State (see
van Binsbergen, cited above).
21 It follows that a Member State may regard as a domestic broadcaster a radio
and television organization which establishes itself in another Member State in
order to provide services there which are intended for the first State' s territory,
since the aim of that measure is to prevent organizations which establish
themselves in another Member State from being able, by exercising the
freedoms guaranteed by the Treaty, wrongfully to avoid obligations under
national law, in this case those designed to ensure the pluralist and noncommercial
content of programmes.
22 In those circumstances it cannot be regarded as incompatible with the
provisions of Articles 59 and 60 of the Treaty to treat such organizations as
domestic organizations.
23 The national court, however, considered the question whether that treatment
jeopardized the right to freedom of expression guaranteed by Article 10 and
Article 14 of the European Convention on Human Rights.
24 It is settled law that fundamental rights, including those guaranteed by the
European Convention on Human Rights, form an integral part of the general
principles of law, the observance of which the Court ensures (see in particular
Case C-260/89 Elliniki Radiophonia Tileorasi [1991] ECR I-2925, paragraph 41,
and Commission v Netherlands, cited above).
25 In Commission v Netherlands, cited above, paragraph 30, the Court held that
the maintenance of the pluralism which the Netherlands broadcasting policy
seeks to safeguard is intended to preserve the diversity of opinions, and hence
freedom of expression, which is precisely what the European Convention on
Human Rights is designed to protect.
26 In those circumstances, the answer to Question 2 must be that the Treaty
provisions on freedom to provide services are to be interpreted as not
precluding a Member State from treating as a domestic broadcaster a
broadcasting body constituted under the law of another Member State and
established in that State but whose activities are wholly or principally directed
towards the territory of the first Member State, if that broadcasting body was
established there in order to enable it to avoid the rules which would be
applicable to it if it were established within the first State.
Decision on costs
Costs
27 The costs incurred by the German, French and Netherlands Governments
and the Commission of the European Communities, which have submitted
observations to the Court, are not recoverable. Since these proceedings are, for
the parties to the main proceedings, a step in the action pending before the
national court, the decision on costs is a matter for that court.
Operative part
On those grounds,
THE COURT (Fifth Chamber),
in answer to the questions referred to it by the Netherlands Raad van State, by
order of 11 May 1992, hereby rules:
1. The concept of "provision of services" referred to in Articles 59 and 60 of the
EEC Treaty covers the transmission, via cable network operators established in
one Member State, of television programmes supplied by a broadcasting body
established in another Member State, even if that body established itself there
in order to avoid the legislation applicable in the receiving State to domestic
broadcasters.
2. The provisions of the EEC Treaty on freedom to provide services are to be
interpreted as not precluding a Member State from treating as a domestic
broadcaster a broadcasting body constituted under the law of another Member
State and established in that State but whose activities are wholly or principally
directed towards the territory of the first Member State, if that broadcasting
body was established there in order to enable it to avoid the rules which would
be applicable to it if it were established within the first State.