EU

COUNCIL DIRECTIVE of 3 October 1989 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities (89/552/EEC)

Case C-148/91, REFERENCE to the Court under Article 177 of the EC Treaty by the Nederlandse Raad van State (Council of State of the Netherlands) for a preliminary ruling in the proceedings pending before that court between Vereniging Veronica Omroep Organisatie and Commissariaat voor de Media

1. A Member State cannot be denied the right to take measures to prevent a person whose activity is entirely or principally directed towards its territory from exercising the freedom guaranteed by Article 59 of the Treaty in order to evade the rules of conduct which would be applicable to him if he were established within that State.

In particular, where a cultural policy seeks to establish a pluralistic and non-commercial radio and television broadcasting system, legislation which has the effect, with a view to safeguarding the exercise of the freedoms guaranteed by Articles 59 and 67 of the Treaty, of ensuring that national broadcasting organizations cannot improperly evade their obligations concerning programme content cannot be regarded as incompatible with those articles.

2. The provisions of the Treaty on the free movement of capital and the freedom to provide services must be interpreted as not precluding legislation of a Member State which prohibits a broadcasting organization established in that State from investing in a broadcasting company established or to be established in another Member State and from providing that company with a bank guarantee or drawing up a business plan and giving legal advice to a television company to be set up in another Member State, where those activities are directed towards the establishment of a commercial television station whose broadcasts are intended to be received, in particular, in the territory of the first Member State and where those prohibitions are necessary in order to ensure the pluralistic and non-commercial character of the audio-visual system introduced by that legislation.

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.

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.

Case C-222/94

A Member State fails to comply with its obligations under Articles 2(1) and (2) and 3(2) of Directive 89/552 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities if, in order to determine the satellite broadcasters falling under its jurisdiction, it adopts criteria other than that of establishment, such as transmission or reception of programmes, which lead it to exercise control, prohibited by the Directive, over broadcasts falling under the jurisdiction of another Member State and, with regard to broadcasters which it considers to fall within its jurisdiction, it applies to non-domestic satellite services a regime which is less stringent than that to which domestic satellite services are subject.

The concept of jurisdiction of a Member State, used in the first indent of Article 2(1) of the Directive, must be understood as necessarily covering jurisdiction ratione personae over television broadcasters. This can be based only on those broadcasters' connection to that State' s legal system, which in substance overlaps with the concept of establishment as used in the first paragraph of Article 59 of the EC Treaty, the wording of which presupposes that the supplier and the recipient of a service are established in two different Member States. While a Member State may, under Article 3(1) of the Directive, lay down stricter rules in the areas covered by the Directive, the fact remains that, under Article 2(1), all broadcasts transmitted by broadcasters under the jurisdiction of that Member State or over which it is required to exercise jurisdiction pursuant to the second indent of Article 2(1) must comply with the law applicable to broadcasts intended for the public in that Member State.

Case T-69/99

For an individual applicant to be directly concerned, for the purposes of the fourth paragraph of Article 173 of the Treaty (now, after amendment, the fourth paragraph of Article 230 EC), by a Community measure, that measure must directly affect the legal situation of the person concerned and its implementation must be purely automatic and result from Community rules alone without the application of other intermediate rules.

That is not true of a Commission decision limited merely to pronouncing ex post facto on the compatibility with Community law of a national measure which was adopted, independently, by a Member State in the exercise of its discretionary power.

Case C-89/04 Mediakabel BV v Commissariaat voor de Media

1. The concept of ‘television broadcasting’ referred to in Article 1(a) of Directive 89/552 concerning the pursuit of television broadcasting activities, as amended by Directive 97/36, is defined independently by that provision. It is not defined by opposition to the concept of ‘information society service’ within the meaning of Article 1(2) of Directive 98/34, laying down a procedure for the provision of information in the field of technical standards and regulations and of rules on information society services, as amended by Directive 98/48, and therefore does not necessarily cover services which are not covered by the latter concept.

A service comes within the concept of ‘television broadcasting’ if it consists of the initial transmission of television programmes intended for reception by the public, that is, an indeterminate number of potential television viewers, to whom the same images are transmitted simultaneously. The manner in which the images are transmitted is not a determining element in that assessment.

2. A service which consists of broadcasting television programmes intended for reception by the public and which is not provided at the individual request of a recipient of services is a television broadcasting service within the meaning of Article 1(a) of Directive 89/552 concerning the pursuit of television broadcasting activities, as amended by Directive 97/36. Priority is to be given to the standpoint of the service provider in the analysis of the concept of ‘television broadcasting service’, as the determining criterion for that concept is the broadcast of television programmes ‘intended for reception by the public’. However, the situation of services which compete with the service in question is not relevant for that assessment.

Moreover, the conditions in which the provider of such a service complies with the obligation referred to in Article 4(1) of Directive 89/552, to reserve for European works a majority proportion of his transmission time, are irrelevant for the classification of that service as a television broadcasting service.

 Council of Europe

European Convention on Transfrontier Television