Commission of the European Communities v Kingdom of Belgium. (Freedom to provide services) [1996] EUECJ C-11/95 (10 September 1996)

Judgment 1 By application lodged at the Court Registry on 13 January 1995, the Commission of the European Communities brought an action under Article 169 of the EC Treaty for a declaration that the Kingdom of Belgium had failed to fulfil its obligations under Council Directive 89/552/EEC 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 (OJ 1989 L 298, p. 23), in particular Articles 2, 14 and 15 thereof. 2 The following objections are made against the Kingdom of Belgium: ° as regards the French Community, it has maintained, within the French-speaking region, a system of prior authorization for retransmission by cable of television broadcasts from other Member States; ° as regards the French Community, it has maintained, within the French-speaking region, a system of express prior authorization, to which conditions are attached, for retransmission by cable of television broadcasts from other Member States containing commercial advertising or teleshopping programmes especially intended for viewers in the French Community; ° as regards the Flemish Community, it has maintained, within the Dutch-speaking region, a system of prior authorization for retransmission by cable of television broadcasts from other Member States; ° as regards the bilingual Metropolitan Region of Brussels, it has failed to adopt the laws, regulations and administrative measures necessary to comply with Article 2(2) of Directive 89/552; ° as regards the German-speaking Community, it has failed to adopt the laws, regulations and administrative measures necessary to comply with Article 2(2) of Directive 89/552; ° as regards the French Community, it has failed to adopt the laws, regulations and administrative measures necessary to comply fully with Articles 14 and 15 of Directive 89/552. Directive 89/552 3 Article 2 of Directive 89/552 provides as follows: "1. Each Member State shall ensure that all television broadcasts transmitted ° by broadcasters under its jurisdiction, or ° by broadcasters who, while not being under the jurisdiction of any Member State, make use of a frequency or a satellite capacity granted by, or a satellite up-link situated in, that Member State, comply with the law applicable to broadcasts intended for the public in that Member State. 2. Member States shall ensure freedom of reception and shall not restrict retransmission on their territory of television broadcasts from other Member States for reasons which fall within the fields coordinated by this Directive. Member States may provisionally suspend retransmissions of television broadcasts if the following conditions are fulfilled: (a) a television broadcast coming from another Member State manifestly, seriously and gravely infringes Article 22; (b) during the previous 12 months, the broadcaster has infringed the same provision on at least two prior occasions; (c) the Member State concerned has notified the broadcaster and the Commission in writing of the alleged infringements and of its intention to restrict retransmission should any such infringement occur again; (d) consultations with the transmitting State and the Commission have not produced an amicable settlement within 15 days of the notification provided for in point (c), and the alleged infringement persists. The Commission shall ensure that the suspension is compatible with Community law. It may ask the Member State concerned to put an end to a suspension which is contrary to Community law, as a matter of urgency. This provision is without prejudice to the application of any procedure, remedy or sanction to the infringements in question in the Member State which has jurisdiction over the broadcaster concerned. 3. This Directive shall not apply to broadcasts intended exclusively for reception in States other than Member States, and which are not received directly or indirectly in one or more Member States." 4 Article 3 of the Directive provides: "1. Member States shall remain free to require television broadcasters under their jurisdiction to lay down more detailed or stricter rules in the areas covered by this Directive. 2. Member States shall, by appropriate means, ensure, within the framework of their legislation, that television broadcasters under their jurisdiction comply with the provisions of this Directive." 5 According to Article 14 of Directive 89/552, "Television advertising for medicinal products and medical treatment available only on prescription in the Member State within whose jurisdiction the broadcaster falls shall be prohibited." 6 Article 15 of Directive 89/552 requires television advertising for alcoholic beverages to comply with certain criteria. 7 Article 22 of Directive 89/552 is worded as follows: "Member States shall take appropriate measures to ensure that television broadcasts by broadcasters under their jurisdiction do not include programmes which might seriously impair the physical, mental or moral development of minors, in particular those that involve pornography or gratuitous violence. This provision shall extend to other programmes which are likely to impair the physical, mental or moral development of minors, except where it is ensured, by selecting the time of the broadcast or by any technical measure, that minors in the area of transmission will not normally hear or see such broadcasts. Member States shall also ensure that broadcasts do not contain any incitement to hatred on grounds of race, sex, religion or nationality." 8 Article 25 of Directive 89/552 requires Member States to bring into force the laws, regulations and administrative provisions necessary to comply with the directive not later than 3 October 1991, and forthwith to inform the Commission thereof. Procedure 9 By letter of 3 November 1992 the Commission requested the Belgian Government to submit its observations on the objection that, by reason of its defective and incomplete transposition of Directive 89/552, it had failed to fulfil its obligations. 10 By letters of 5 and 21 April 1993 the Belgian Government communicated the observations of the Flemish and French Communities. On 10 January 1994 the Commission issued a reasoned opinion requesting the Kingdom of Belgium to adopt within two months the measures necessary in order to bring to an end its failure to fulfil its obligations under Directive 89/552 and Article 5 of the EEC Treaty. 11 With regard to the Flemish Community, the Kingdom of Belgium communicated, by letter of 4 February 1994, a copy of a draft decree and, by letter of 9 June 1994, a copy of the decree of the Flemish Council of 4 May 1994. By letter of 11 April 1994, the Belgian Government communicated the response of the French Community to the reasoned opinion. By letter of 7 April 1994, the Minister for Scientific Policy replied to the reasoned opinion on behalf of the Metropolitan Region of Brussels. 12 By decision of 7 March 1995 the Court authorized the Belgian Government to submit in Dutch that part of its defence which concerns the legislation of the Flemish Community. Compliance with Article 2(2) of Directive 89/552 in the French Community The objection to Article 22 of the Decree of 17 July 1987 13 Article 22 of the Decree of the Council of the French Community of 17 July 1987 on audiovisual communications (Moniteur belge of 22 August 1987, p. 12505, hereinafter "the 1987 decree"), as amended by the Decree of 19 July 1991 (Moniteur belge of 2 October 1991, p. 21671), provides as follows: "... 2. Subject to prior written authorization by the Executive, the distributor may transmit, simultaneously and in their entirety, the television programmes of any other broadcasting station authorized by the State in which it has its seat which comply with the conditions laid down by the Executive in the authorization. Such authorization shall be revocable. 2a. Subject to express prior authorization by the Executive, the distributor may transmit, simultaneously and in their entirety, the television programmes of broadcasters authorized in accordance with Article 26(2) of this Decree which comply with the conditions laid down by the Executive pursuant to Article 26(3) of this Decree. ..." 14 According to the Commission, the system introduced by Article 22 of the 1987 decree constitutes a serious restriction on the retransmission in the French-speaking region of Belgium of television broadcasts from other Member States. Consequently, that system infringes Article 2(2) of Directive 89/552. The scope of Directive 89/552 15 According to the Belgian Government, Directive 89/552 concerns only primary television broadcasting, and does not cover transmission by cable, which is a secondary form of broadcasting, that is to say, the communication of programmes broadcast by an organization other than the originating organization ("retransmission"). 16 The Belgian Government advances three arguments in that regard. First, as defined in Article 1(a) of Directive 89/552, the term "television broadcasting" clearly refers only to the initial broadcasting of television programmes. 17 Next, the term "retransmission" used in Article 2(2) of Directive 89/552 does not cover cable television broadcasts, as is confirmed, moreover, by the title of 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), which adds the word "cable" to the term "retransmission". 18 Lastly, the reason why cable television broadcasting was not covered by Directive 89/552 is that it was not yet very widespread at the time when the directive was adopted. 19 Those arguments cannot be accepted. 20 As the Commission has rightly observed, the ninth recital in the preamble to Directive 89/552 expressly refers to the disparities between the laws, regulations and administrative measures in Member States concerning the pursuit of activities as television broadcasters and cable operators, without drawing any distinction between primary and secondary television broadcasting. According to the tenth recital, all restrictions on freedom to provide broadcasting services within the Community which result from such disparities must be abolished. 21 As regards the concept of "television broadcasting", the definition given in Article 1(a) of Directive 89/552 cannot be interpreted as a restriction of its scope. Article 2(2), which forms part of Chapter II of Directive 89/552, entitled "General provisions", provides that Member States are to ensure freedom of reception and are not to restrict retransmission on their territory of television broadcasts from other Member States; cable retransmission is not excluded. 22 As regards Directive 93/83, it should be observed, first, that the third recital in the preamble to that directive provides that broadcasts transmitted across frontiers within the Community, in particular by satellite and cable, are one of the most important ways of pursuing the objectives of the Community. After recalling, in the fourth recital, the objectives of Directive 89/552, the fifth recital states that the achievement of those objectives in respect of cross-border satellite broadcasting and the cable retransmission of programmes from other Member States was still obstructed by a series of disparities between national rules on copyright. Lastly, according to the twelfth recital, the legal framework for a single audiovisual area laid down in Directive 89/552 must be supplemented with reference to copyright. 23 It follows that Directive 93/83 confirms that Directive 89/552 covers the cable retransmission of television programmes. 24 Lastly, as regards the genesis of Directive 89/552, the fourth recital in the preamble to that directive expressly refers to the adoption by the Council of Europe of the Convention on Transfrontier Television. As is apparent from Article 3 thereof, that convention also applies to television programmes retransmitted by cable. 25 Consequently, the fact that cable distribution was not very widespread at the time when Directive 89/552 was adopted cannot be relied on in support of an argument that this activity is excluded from the scope of that directive. The scope of the 1987 decree 26 The Belgian Government contends that Article 22(2) of the 1987 decree covers only the provision of services by cable operators established in the territory of the French Community. Consequently, the decree does not give rise to any restriction on the free movement of foreign broadcasts. 27 According to the case-law of the Court of Justice, cable retransmission of foreign programmes constitutes a transfrontier service (see, in particular, the judgment in Case 352/85 Bond van Adverteerders and Others [1988] ECR 2085, paragraph 15). As is apparent from the sixth, seventh and ninth recitals in the preamble to Directive 89/552, that directive is precisely aimed at eliminating restrictions on freedom to provide television broadcasting services arising from disparities between the laws of the Member States. 28 Consequently, that argument cannot be accepted. The compatibility of Article 22 of the 1987 decree with Directive 89/552 29 The Belgian Government states, first, that Belgian distributors must obtain the authorization of the Executive in order to be able to retransmit foreign television programmes. On the basis of that provision, both Belgian and foreign television channels negotiate agreements of a cultural nature with the Executive by which they undertake to devote part of their budget to the purchase, production and co-production of European audiovisual programmes. 30 As regards the compatibility of Article 22 of the 1987 decree with Directive 89/552, the Belgian Government maintains that it is apparent from the recitals in the preamble to that directive, and from Article 2(1) thereof, that a television programme may circulate freely throughout the Community only if it complies with the applicable law of the originating State, including the provisions of the directive. It necessarily follows from that principle that the receiving Member State must be able to verify whether foreign television broadcasters applying for authorization to retransmit their programmes in the territory of the French Community of Belgium comply with the law of the originating State and are justified in calling for the application of Article 2(2) of the directive. 31 Having regard to the system whereby Directive 89/552 divides obligations between the Member States from which programmes emanate and the Member States receiving them, those arguments cannot be accepted. 32 According to the wording of Article 2(1) of Directive 89/552, each Member State is to ensure that broadcasters under its jurisdiction, or broadcasters over whom it is called upon to exercise its jurisdiction under the second indent of that provision, comply with the law applicable to broadcasts intended for the public in that Member State. Article 3(2) requires Member States also to ensure that television broadcasters under their jurisdiction comply with the provisions of the directive. 33 According to Article 2(2) of Directive 89/552, Member States are to ensure freedom of reception and must not restrict retransmission on their territory of television broadcasts from other Member States for reasons which fall within the fields coordinated by the directive. 34 It follows, first, that it is solely for the Member State from which television broadcasts emanate to monitor the application of the law of the originating Member State applying to such broadcasts and to ensure compliance with Directive 89/552, and, second, that the receiving Member State is not authorized to exercise its own control in that regard. 35 That interpretation is borne out by the preamble to Directive 89/552. According to the tenth recital, all restrictions on freedom to provide broadcasting services must be abolished under the Treaty. The twelfth and fourteenth recitals provide that it is necessary and sufficient in that regard that all broadcasts comply with the law of the Member State from which they emanate and with the provisions of the directive. According to the fifteenth recital, the requirement that the originating Member State should verify that broadcasts comply with national law as coordinated by Directive 89/552 is sufficient under Community law to ensure free movement of broadcasts without secondary control on the same grounds in the receiving Member States. 36 Only in the circumstances provided for in the second sentence of Article 2(2), to which the second part of the fifteenth recital refers, may the receiving Member State exceptionally suspend retransmission of televised broadcasts, on the conditions laid down by that provision. Moreover, if a Member State considers that another Member State has failed to fulfil its obligations under the directive, it may, as the Commission has rightly observed, bring Treaty infringement proceedings under Article 170 of the EC Treaty or request the Commission itself to take action against that Member State under Article 169 of the Treaty. 37 It is settled case-law that a Member State cannot unilaterally adopt, on its own authority, corrective or protective measures designed to obviate any breach by another Member State of rules of Community law (judgments in Joined Cases 90/63 and 91/63 Commission v Luxembourg and Belgium [1964] ECR 625, Case 232/78 Commission v France [1979] ECR 2729, paragraph 9, and Case C-5/94 Hedley Lomas, not yet published in the European Court Reports, paragraph 20). 38 The Belgian Government further maintains that, in the present case, those procedures are not appropriate to ensure compliance with Directive 89/552 and with the national law applicable to broadcasts intended for the public in the originating Member State, since televised broadcasts are, by their nature, ephemeral events and any harm which they may cause cannot be made good. 39 With regard to that point, it need only be observed that, as is stated in paragraph 34 above, the second sentence of Article 2(2) of Directive 89/552 authorizes the receiving Member State provisionally to suspend retransmissions of television broadcasts only in the circumstances set out in that provision. Furthermore, the receiving Member State may request the Court under Article 186 of the EC Treaty to prescribe interim measures in any proceedings brought before it under Article 170 of the Treaty. 40 The Belgian Government observes, in the alternative, that the 1987 decree does not restrict the free circulation of broadcasts from other Member States, since the agreements with the Executive are freely negotiated by both Belgian and foreign television channels and thus constitute an appropriate means of promoting the development of European audiovisual production as referred to in Articles 4 and 5 of Directive 89/552. The Executive does not have any discretion in fixing the terms and conditions of those agreements, since they are laid down by order of 22 December 1988 (Moniteur belge 1989, p. 4896; 1992, p. 6532) and must be submitted to the Conseil Supérieur de l' Audiovisuel (Supreme Audiovisual Council) for a preliminary opinion. 41 In that regard, it should be noted, first, that it is apparent from the abovementioned order that those agreements cannot be described as "freely negotiated", since authorization for the distribution of foreign programmes is subject to compliance with the conditions set out in those agreements, which are to be laid down in detail therein. 42 Next, as regards the argument that those agreements constitute an appropriate means of implementing Articles 4 and 5 of Directive 89/552, it must be recalled that, as is stated in paragraph 34 of this judgment, it is for the State from which the programmes emanate to ensure compliance with the provisions of the directive, such as Articles 4 and 5, and the receiving Member State cannot therefore be permitted to impose on programmes from other Member States its own criteria in the matter. The argument concerning Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 43 The Belgian Government maintains that the second sentence of Article 10(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms expressly provides for the possible establishment of a compulsory authorization system applying to broadcasting undertakings and, a fortiori, to organizations engaged in the distribution of television programmes. 44 That argument cannot be accepted. 45 As the Commission has rightly observed, the fact that a compulsory authorization system applying to the television sector is not contrary to Article 10 of the Convention does not prevent such a system from being contrary to Community law. The argument concerning Article 128 of the EC Treaty 46 The Belgian Government maintains that the system introduced by the 1987 decree, which is intended to secure respect for certain cultural objectives, is justified, inasmuch as Directive 89/552, and in particular Articles 4 and 5, must be construed in the light of Article 128 of the Treaty, relating to culture, as inserted into the EC Treaty by the Treaty on European Union. 47 That argument is equally unacceptable. 48 As is apparent from the seventeenth and eighteenth recitals in the preamble to Directive 89/552, that directive also pursues cultural objectives, in particular by means of the system laid down in Articles 4 and 5. 49 It is true that, under Article 128(1) of the Treaty, the Community is to contribute to the flowering of the cultures of the Member States, while respecting their national and regional diversity and at the same time bringing the common cultural heritage to the fore, and that, under Article 128(4), it is to take cultural aspects into account in its action under other provisions of the Treaty. 50 However, that article does not in any way authorize the receiving State, by way of derogation from the system established by Directive 89/552, to make programmes emanating from another Member State subject to further controls. The argument concerning the principle of subsidiarity 51 The Belgian Government maintains that, according to the principle of subsidiarity laid down in the second paragraph of Article 3b of the EC Treaty, it is at liberty to intervene in cultural matters, provided that it does not fail to observe its obligations under Community law. 52 As has already been pointed out in paragraph 34 above, Member States are obliged, in accordance with Article 2(2) of Directive 89/552, to ensure freedom of reception and not to restrict the retransmission on their territory of television broadcasts from other Member States in the fields coordinated by that directive. 53 It follows ° as, moreover, the Belgian Government itself concedes ° that a Member State cannot evade that obligation under Directive 89/552 by relying on the second paragraph of Article 3b of the Treaty. The argument concerning the preservation of pluralism in the media 54 The Belgian Government further maintains that the system introduced by Article 22(2) of the 1987 decree is justified, in so far as cultural policy does not fall within the field coordinated by Directive 89/552, by public interest considerations, inasmuch as it allows the Executive, in particular, to safeguard pluralism in the media by means of agreements concluded with Belgian and foreign television channels. In its judgments in Case C-288/89 Stichting Collectieve Antennevoorziening Gouda and Others [1991] ECR I-4007 and Case C-353/89 Commission v Netherlands [1991] ECR I-4069 , the Court expressly acknowledged that a cultural policy aimed at safeguarding the freedom of expression of the various components of a State, in particular those of a social, cultural, religious or philosophical nature, with a view to the exercise of that freedom in the press, on the radio or on television, may constitute an overriding requirement relating to the general interest which justifies a restriction on the freedom to provide services guaranteed by Article 59 of the EC Treaty. 55 Whilst there is no need to examine whether, as the Commission contends, this matter is exhaustively governed by Article 10 et seq. of Directive 89/552, in particular Articles 10(1), 11(1), 17(1)(a) and 19, it should be observed, as the Advocate General points out in point 65 of his Opinion, that the Belgian Government has not shown adequately in detail that the system of prior authorization was necessary and proportional for protecting pluralism in the audiovisual field or in the media generally. The argument concerning Directive 93/83 56 Lastly, the Belgian Government asserts that, since Directive 93/83 requires Member States to ensure that, when programmes from other Member States are retransmitted by cable, the applicable copyright and related rights are observed, Directive 89/552 must not have the effect of promoting free movement of television programmes which infringe copyright legislation. 57 With regard to that point, it need only be observed that, as the Advocate General states in point 57 of his Opinion, the Belgian Government has not put forward any evidence from which it may be concluded that there exists no less restrictive means of protecting copyright than the requirement of prior authorization for retransmission. 58 It follows that the Commission' s first objection must be upheld. The second objection, concerning Articles 26 and 26b of the 1987 decree 59 Article 26 of the decree provides: "... 2. Broadcasters who comply with the conditions laid down by the Executive under Article 22(2) may broadcast commercial advertisements intended in particular for viewers in the French Community, subject to express prior authorization from the Executive. 3. The Executive shall lay down the conditions governing the inclusion of advertising in television programmes by the RTBF and the broadcasters referred to in paragraphs 1 and 2. Those conditions shall prescribe, in particular, the machinery whereby those broadcasters may be involved in promoting the audiovisual production of cultural programmes of the French Community and of the Member States of the European Communities, in maintaining and developing audiovisual pluralism in the television channels of the French Community, and in developing pluralism in the opinions expressed and general information given in the French Community press. 4. Commercial advertising shall not contravene the laws, decrees or orders governing advertising generally or the advertising of certain types of products or services; nor shall it infringe the provisions of Articles 27 to 27g. The broadcasters referred to in paragraph 2 of this article shall undertake, prior to receiving authorization to broadcast commercial advertisements intended in particular for viewers in the French Community, to comply with the advertising standards and rules referred to in the first subparagraph of this paragraph." 60 Article 26b of the decree provides: "1. The [RTBF] and the broadcasters referred to in Article 26(1) and (2) may broadcast teleshopping programmes, subject to express prior authorization from the Executive. 2. The [RTBF] and the authorized broadcasters shall be fully responsible for the broadcasting of teleshopping programmes and for compliance with the conditions laid down by this Decree and the orders implementing it. [Paragraphs 3 to 7 contain rules in respect of teleshopping]. [Paragraph 8 deals with the annual reports of broadcasters authorized to broadcast teleshopping programmes]." 61 According to the Commission, the system introduced by Articles 26 and 26b of the 1987 decree concerning the grant of authorization for the broadcasting by broadcasters from other Member States of commercial advertisements and teleshopping programmes intended in particular for viewers in the French Community, which is conditional, in particular, on the involvement of those broadcasters in supporting the French Community' s television channels and press, is even more restrictive than the general system provided for in Article 22 of the decree. Consequently, that system is, a fortiori, contrary to Article 2(2) of Directive 89/552. 62 The Belgian Government observes that all channels which broadcast from another Member State commercial advertisements intended in particular for viewers in the French Community either fall within its jurisdiction or effectively circumvent the rules applying in the French Community. It maintains that Articles 26 and 26b are specifically concerned with the circumvention of the national rules of the receiving State. Foreign television channels broadcasting in particular to viewers in the French Community cannot rely on the application of Article 2(2) of Directive 89/552. It was held in the judgments in Case 33/74 Van Binsbergen [1974] ECR 1299 and Case C-23/93 TV10 [1994] ECR I-4795 that a Member State is entitled to take steps against organizations which circumvent national rules. 63 With regard to that point, it should be observed, first, that Articles 26 and 26b of the 1987 decree are generally concerned with the circumvention of the legislation of the receiving Member State by broadcasters from other Member States. As the Belgian Government itself maintains, those provisions are based on the assumption that the emission by such broadcasters of commercial advertisements or teleshopping programmes intended for viewers in the French Community constitutes in itself a circumvention of the legislation of the receiving Member State. 64 That argument cannot be accepted. 65 Without there being any need to examine whether, in the light of Directive 89/552, a Member State is still entitled, on the basis of Article 59 of the Treaty, to take measures to prevent a person providing services whose activity is entirely or principally directed towards its territory from exercising 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 (judgments in Van Binsbergen, cited above, paragraph 13, Case C-211/91 Commission v Belgium [1992] ECR I-6757 , paragraph 12, and TV10, cited above, paragraph 20), it need only be stated that those cases do not in any event authorize a Member State generally to exclude provision of certain services by operators established in other Member States, since that would entail abolition of the freedom to provide services (Case C-211/91 Commission v Belgium, cited above, paragraph 12). 66 It follows that the Commission' s second objection must be upheld. Compliance with Article 2(2) of Directive 89/552 in the Flemish Community The third objection, concerning Articles 3, 5 and 10 of the Decree of 4 May 1994 67 In its judgment in Case C-211/91 Commission v Belgium, cited above, relating to Treaty infringement proceedings in respect of Articles 3 and 4 of the Decree of the Flemish Community of 28 January 1987 concerning the transmission of radio and television programmes on radio and cable television networks and the approval of non-public television broadcasting companies (Belgisch Staatsblad of 19 March 1987, p. 4196, hereinafter "the decree of 28 January 1987"), the Court ruled that, by making the transmission on a broadcasting network of television programmes of non-public broadcasting services from other Member States subject to prior authorization, to which conditions may be attached, the Kingdom of Belgium had failed to fulfil its obligations under Articles 59 and 60 of the Treaty. 68 On 4 May 1994 the Flemish Community adopted the Decree on radio and television networks and the authorization necessary for the establishment and operation of such networks and on promoting the broadcasting and production of television programmes (Belgisch Staatsblad of 4 June 1994, p. 15434/15440, hereinafter "the decree of 4 May 1994"). 69 Articles 3, 5 and 10 of that decree are worded as follows: "Article 3 No person shall establish or operate a radio or television broadcasting network unless authorization has been granted by the Flemish Government in accordance with the conditions laid down in this decree. The Flemish Government may prescribe additional conditions. Such authorization may be revoked or suspended, on conditions laid down by the Flemish Government, in the event of infringement of this decree or of the orders implementing it. Article 5 1. The authorization referred to in Article 3 shall be granted to legal persons only. 2. The authorization shall state the operating territory, the programmes which may be retransmitted and the services which may be offered. Any modification relating to the retransmission of a new programme or an offer of new services shall be submitted for approval to the Flemish Government, which shall determine whether the conditions laid down by this decree have been fully complied with. The decision approving or refusing such modification shall be notified to the cable operator within four months from submission of the application. Where authorization is granted, the cable operator may proceed with the modification once the approval is notified or on expiry of the period prescribed by the decision. ... 6. Where, upon the entry into force of this decree, a cable broadcaster already holds an authorization issued pursuant to the Royal Decree of 24 December 1966 on networks broadcasting to the homes of third parties, that broadcaster shall continue to be so authorized until expiry of the authorization currently held by him, provided that he complies with the provisions of this decree and of the orders implementing it. Article 10 1. Cable broadcasters shall transmit the following programmes simultaneously and in their entirety on their radio or television broadcasting networks: [this concerns Belgian programmes] 2. Without prejudice to the provisions of paragraph (1), cable broadcasters may retransmit the following programmes on their radio or television broadcasting networks: [(1) to (3) concern Belgian programmes] (4) radio and television programmes of broadcasters authorized by the government of a Member State of the European Union other than Belgium, provided that the broadcaster concerned is subject, in that Member State, to the controls applied to broadcasters whose programmes are received by the public in that Member State, that those controls actually relate to compliance with European law, particularly as regards copyright and related rights and the international commitments of the European Union, and that the broadcaster concerned and the programmes broadcast by it do not compromise public policy, morality or law and order in the Flemish Community; [(5) concerns programmes from third countries] [(6) and (7) concern radio programmes]." 70 Article 3 of the decree of 28 January 1987 was repealed by Article 25(1) of the decree of 4 May 1994. Admissibility 71 According to the Belgian Government, the action is inadmissible as regards the provisions in respect of the Flemish Community, since the reasoned opinion of 10 January 1994 relates to the decree of 28 January 1987 whereas the action concerns the new decree of 4 May 1994. The Belgian Government maintains in that regard, first, that the Commission failed, in breach of Article 169 of the Treaty, to give it an opportunity, prior to commencing the proceedings, of submitting its observations on the objections set out in the application, next, that the Commission failed to take account of the legislation in force at the time when it delivered its reasoned opinion, and, lastly, that the reasoned opinion and the application are not based on the same considerations and the same grounds. 72 The Commission contends that the subject-matter of the dispute, that is to say, non-compliance with Article 2(2) of Directive 89/552, has remained the same, inasmuch as the new system also provides for prior authorization and the reasons why that system contravenes Article 2(2) of Directive 89/552 have not changed. The Commission refers in that regard to the judgment in Case C-105/91 Commission v Greece [1992] ECR I-5871 . 73 It is true that the Court has held that the subject-matter of an application made under Article 169 of the Treaty is circumscribed by the pre-litigation procedure provided for by that article, and that the Commission' s reasoned opinion and the application to the Court must therefore be based on the same objections (Case C-105/91 Commission v Greece, cited above, paragraph 12). 74 That requirement cannot, however, go so far as to make it necessary that the national provisions mentioned in the reasoned opinion and in the application should always be completely identical. Where a change in the legislation occurred between those two procedural stages, it is sufficient that the system established by the legislation contested in the pre-litigation procedure has, on the whole, been maintained by the new measures which were adopted by the Member State after the issue of the reasoned opinion and have been challenged in the application (judgments in Case 45/64 Commission v Italy [1965] ECR 857, Case C-42/89 Commission v Belgium [1990] ECR I-2821 , and Case C-105/91 Commission v Greece, cited above, paragraph 13). 75 In this case, the reasoned opinion shows that the criticisms expressed by the Commission at the pre-litigation stage related to the prior authorization required by the decree of 28 January 1987 for the retransmission of programmes of television broadcasters from other Member States. It appears from the form of order sought in the application that it is that system, too, which is challenged by the Commission in the present proceedings. Moreover, the Commission had already indicated in the reasoned opinion that the draft of the new decree submitted on 5 July 1991 could not be regarded as sufficient in that respect. 76 Consequently, the fact that, in its application, the Commission criticizes the provisions of the decree of 4 May 1994 cannot be taken to entail a modification of the subject-matter of the proceedings or an infringement of Article 169 of the Treaty. The action must therefore be declared admissible. 77 The Belgian Government further maintains that the decree of 4 May 1994 substituted, in place of the authorization requirement, a mere notification obligation and, consequently, that the reasoned opinion and the application do not tally. 78 This argument falls within the scope of the substance of the case, since it can be assessed only on the basis of an analysis of the system of notification established by the decree of 4 May 1994. Substance 79 According to the Commission, the decree of 4 May 1994 maintains the system of prior authorization, since Article 10(2)(4) makes the retransmission of programmes from other Member States subject to three conditions. First, those programmes must be authorized by the government of another Member State; second, the broadcaster, as the original producer of the programmes, must be subject to control by that Member State and, third, the programmes must not compromise public policy, morality or law and order. Under Article 5(2) of the decree of 4 May 1994, it is for the Flemish Government to monitor compliance with those conditions and to authorize or refuse retransmission. 80 In the Commission' s view, that system of authorization is incompatible with Article 2(2) of Directive 89/552, since that provision does not authorize the carrying out of controls by Member States on whose territory retransmission takes place if the originating Member State properly performs its obligations under the directive. 81 The Belgian Government, on the other hand, considers, first, that the decree of 4 May 1994 merely provides for a notification procedure aimed at identifying whether the broadcasting service is a Community or a non-Community broadcasting service, in order to verify whether that service is covered by the freedom to provide services guaranteed by Directive 89/552. 82 In this regard, it should be observed that Articles 3 and 5 of the decree of 4 May 1994 expressly state that the establishment or operation of a broadcasting or cable distribution network is conditional on the grant of authorization. Under Article 3 of that decree, such authorization is to be granted on the conditions provided for in the decree, including the requirements laid down in Article 10(2)(4) concerning programmes from other Member States, whilst Article 5(2) provides that that authorization is to state, in particular, the programmes which may be retransmitted. 83 Second, the Belgian Government maintains that Directive 89/552 merely coordinates certain areas of the legislation of the Member States relating to television, so that those Member States still have the power to verify whether the programmes have a real connection with the originating Member State and whether they are in fact subjected to controls there, thus making it possible to prevent broadcasters who have no real link with a Member State from being able to rely improperly on freedom to provide services. 84 The Belgian Government further states that the authorization referred to in Article 10(2)(4) of the decree of 4 May 1994 does not necessitate any specific control. Whenever a cable broadcaster notifies the retransmission of a new foreign programme, the authorities must in any case identify the Member State where transmission has taken place and to verify whether that State is the country under whose "jurisdiction" the broadcaster falls. Only those broadcasters enjoy the cross-border freedom of movement guaranteed by Directive 89/552. 85 That argument cannot be accepted. 86 As has already been stated in paragraph 34 of this judgment, it is solely for the Member States from which programmes emanate to monitor compliance with the provisions of the directive by the broadcasters under their jurisdiction. Even if the provisions of the decree of 4 May 1994 at issue were intended merely to introduce a system of verification, the requirement of prior authorization, which constitutes a serious obstacle to the free movement of programmes in the Community provided for by the directive, goes beyond what is necessary for ascertaining that the programmes in question emanate from another Member State. 87 The Belgian Government maintains, third, that, since the purpose of Directive 89/552 is to put in place the coordination necessary to create between Member States the reciprocal trust which will enable television programmes to freely cross borders, it is for the receiving Member State to verify, within certain limits, whether the originating State is actually supervising compliance with the directive. 88 In this regard the Court reiterates that the Member States must have mutual trust in each other as far as controls carried out on their respective territories are concerned (judgments in Case 46/76 Bauhuis [1977] ECR 5, paragraph 22, and Hedley Lomas, cited above, paragraph 19). 89 As the Court has already observed in paragraph 36 of this judgment, if a Member State considers that another Member State has failed to fulfil its obligations under Directive 89/552, it may bring Treaty infringement proceedings under Article 170 of the Treaty or request the Commission itself to take action against that Member State under Article 169 of the Treaty. 90 As regards the argument which the Belgian Government purports to derive from Directive 93/83, according to which Directive 89/552 must not have the effect of promoting free movement of television programmes which infringe copyright law, reference is made to paragraph 57 of this judgment. 91 Lastly, the Belgian Government considers that, since the Treaty authorizes restrictions on freedom to provide services where they are justified on grounds of public policy, public morality or public security and since Directive 89/552 does not coordinate the laws of the Member States in that respect, the receiving Member State may verify whether programmes from other Member States constitute a threat to those legitimate objectives. 92 As the Advocate General observes in points 100 and 101 of his Opinion, Directive 89/552 concerns matters covered by public policy, public morality or public security, and, inasmuch as the rules which it lays down are not exhaustive, the protection of those interests cannot in any event justify a general system of prior authorization of programmes coming from other Member States, which would entail abolition of the freedom to provide services (Case C-211/91 Commission v Belgium, paragraph 12). 93 It follows that the Commission' s third objection must be upheld. Fourth objection: no transposition in the bilingual Metropolitan Region of Brussels 94 According to the Commission, the Kingdom of Belgium has failed, as regards the bilingual Metropolitan Region of Brussels, to implement within the prescribed period the provisions necessary to comply with Article 2(2) of Directive 89/552. 95 In that regard, the Belgian Government states in its defence that, as far as that region is concerned, Directive 89/552 was transposed by the Law of 30 March 1995. 96 Article 25 of Directive 89/552 provides that the Member States are to bring into force the laws, regulations and administrative provisions necessary to comply with the directive by no later than 3 October 1991, and forthwith to inform the Commission thereof. 97 Since the transposition did not take place within the period prescribed by Article 25 of Directive 89/552, this objection must be upheld. Fifth objection: no transposition in the German-speaking Community 98 According to the Commission, the Kingdom of Belgium has failed, as regards the German-speaking Community, to implement within the prescribed period the provisions necessary to comply with Article 2(2) of Directive 89/552. 99 The Belgian Government replies that the retransmission of television programmes in the German-speaking Community is entirely unrestricted, regardless of the origin of the programme and its contents, since that Community does not have any regulatory measures enabling it to restrict the free movement of programmes. The Royal Decree of 24 December 1966 no longer applies, since its legal basis, which was Article 13 of the Law of 26 January 1960, has been repealed by Article 30 of the Law of 13 July 1987. 100 However, according to the Commission, even in the absence of any regulatory means enabling the German-speaking Community to restrict the free movement of programmes from other Member States, the fact remains that a directive must be transposed sufficiently precisely and clearly to enable those concerned to ascertain all their rights and thus to fulfil the requirement of legal certainty. 101 That objection cannot be upheld. 102 It need merely be observed in this regard that the Commission has not mentioned any rule or fact from which it may be concluded that the freedom of reception and transmission of programmes coming from other Member States, prescribed by Article 2(2) of Directive 89/552, is not provided for in the German-speaking Community. Sixth objection: failure to transpose Articles 14 and 15 of Directive 89/552 properly in the French Community 103 According to the Commission, the Kingdom of Belgium has failed, as regards the French Community, to transpose Article 14 and 15 of Directive 89/552 properly. 104 The Belgian Government has not contested this objection. 105 In those circumstances, the Commission' s sixth objection must be upheld. 106 It follows from all the foregoing considerations that the Kingdom of Belgium has failed to fulfil its obligations under Directive 89/552, in particular Articles 2, 14 and 15 thereof, ° as regards the French Community, by maintaining, in the French-speaking region, a system of prior authorization for the retransmission by cable of television broadcasts emanating from other Member States; ° as regards the French Community, by maintaining, in the French-speaking region, a system of express, conditional prior authorization for the retransmission by cable of television broadcasts emanating from other Member States which contain commercial advertising or teleshopping programmes especially intended for viewers in the French Community; ° as regards the Flemish community, by maintaining, in the Dutch-speaking region, a system of prior authorization for the retransmission by cable of television broadcasts emanating from other Member States; ° as regards the bilingual Metropolitan Region of Brussels, by failing to adopt the laws, regulations and administrative measures necessary to comply with Article 2(2) of the directive; ° as regards the French Community, by failing to adopt the laws, regulations and administrative measures necessary to comply fully with Articles 14 and 15 of the directive. Costs 107 Under Article 69(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 defendant has been essentially unsuccessful, it must be ordered to pay the costs. On those grounds, THE COURT hereby: 1. Declares that the Kingdom of Belgium has failed to fulfil its obligations under Council Directive 89/552/EEC 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, in particular Articles 2, 14 and 15 thereof, ° as regards the French Community, by maintaining, in the French-speaking region, a system of prior authorization for the retransmission by cable of television broadcasts emanating from other Member States; ° as regards the French Community, by maintaining, in the French-speaking region, a system of express, conditional prior authorization for the retransmission by cable of television broadcasts emanating from other Member States which contain commercial advertising or teleshopping programmes especially intended for viewers in the French Community; ° as regards the Flemish community, by maintaining, in the Dutch-speaking region, a system of prior authorization for the retransmission by cable of television broadcasts emanating from other Member States; ° as regards the bilingual Metropolitan Region of Brussels, by failing to adopt the laws, regulations and administrative measures necessary to comply with Article 2(2) of Directive 89/552; ° as regards the French Community, by failing to adopt the laws, regulations and administrative measures necessary to comply fully with Articles 14 and 15 of Directive 89/552; 2. Dismisses the remainder of the application; 3. Orders the Kingdom of Belgium to pay the costs. © European Communities, 2001 All rights reserved BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII