# C_2006212EN.01001201.xml

| 2.9.2006 | EN | Official Journal of the European Union | C 212/12 |
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2.9.2006

EN

Official Journal of the European Union

C 212/12

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Reference for a preliminary ruling from the Conseil d'Etat (Belgium) lodged on 6 June 2006 — United Pan-Europe Communications Belgium SA, Coditel Brabant SA, Société intercommunale pour la Diffusion de la Télévision Brutele, Wolu TV ASBL v Belgian State

(Case C-250/06)

(2006/C 212/20)

Language of the case: French

Referring court

Conseil d'Etat

Parties to the main proceedings

Applicants: United Pan-Europe Communications Belgium SA, Coditel Brabant SA, Société intercommunale pour la Diffusion de la Télévision Brutele, Wolu TV ASBL

Applicants:

Defendant: Belgian State

Defendant:

Questions referred

| 1. | Must the obligation imposed on undertakings which distribute television programmes by cable to distribute certain pre-determined programmes be interpreted as conferring on the programmes' authors a ‘special right’ within the meaning of Article 86 EC? |
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1.

Must the obligation imposed on undertakings which distribute television programmes by cable to distribute certain pre-determined programmes be interpreted as conferring on the programmes' authors a ‘special right’ within the meaning of Article 86 EC?

| 2. | If the first question is to be answered in the affirmative, must the rules referred to at the end of Article 86(1) EC (namely ‘the rules contained in this Treaty, in particular ... those rules provided for in Articles 12 and Articles 81 to 89’) be interpreted as not permitting Member States to require undertakings which distribute television programmes by cable to distribute certain television programmes by private broadcasting organisations, but ‘falling under’ (within the meaning of the Belgian Law of 30 March 1995 on broadcasting distributors networks and the pursuit of broadcasting activities in the bilingual region of Bruxelles-Capitale) specified public powers of that State, with the result that the number of programmes coming from other Member States or non-members of the European Union and of organisations not falling under those public powers has fallen by the number of programmes covered by the ‘must carry’ obligation? |
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2.

If the first question is to be answered in the affirmative, must the rules referred to at the end of Article 86(1) EC (namely ‘the rules contained in this Treaty, in particular ... those rules provided for in Articles 12 and Articles 81 to 89’) be interpreted as not permitting Member States to require undertakings which distribute television programmes by cable to distribute certain television programmes by private broadcasting organisations, but ‘falling under’ (within the meaning of the Belgian Law of 30 March 1995 on broadcasting distributors networks and the pursuit of broadcasting activities in the bilingual region of Bruxelles-Capitale) specified public powers of that State, with the result that the number of programmes coming from other Member States or non-members of the European Union and of organisations not falling under those public powers has fallen by the number of programmes covered by the ‘must carry’ obligation?

| 3. | Must Article 49 EC be interpreted as meaning that a prohibited barrier to the freedom to provide services exists from the time a measure taken by a Member State, in the present case the obligation to retransmit television programmes over cable distribution networks, is liable to impede directly or indirectly, actually or potentially, the provision of services from another Member State to recipients of those services in the first Member State, which will be the case where, on account of that measure, the service provider finds itself in an unfavourable position when negotiating for access to those networks? |
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3.

Must Article 49 EC be interpreted as meaning that a prohibited barrier to the freedom to provide services exists from the time a measure taken by a Member State, in the present case the obligation to retransmit television programmes over cable distribution networks, is liable to impede directly or indirectly, actually or potentially, the provision of services from another Member State to recipients of those services in the first Member State, which will be the case where, on account of that measure, the service provider finds itself in an unfavourable position when negotiating for access to those networks?

| 4. | Must Article 49 EC be interpreted as meaning that a prohibited barrier to the freedom to provide services exists because a measure taken by a Member State, in the present case the obligation to retransmit television programmes over cable distribution networks, is granted only to undertakings established in that Member State in the majority of cases, owing to the place of establishment of those benefiting from the measure or the fact that they have some other link to that Member State — while there is no justification for such a barrier based on overriding reasons of public interest in compliance with the principle of proportionality? |
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4.

Must Article 49 EC be interpreted as meaning that a prohibited barrier to the freedom to provide services exists because a measure taken by a Member State, in the present case the obligation to retransmit television programmes over cable distribution networks, is granted only to undertakings established in that Member State in the majority of cases, owing to the place of establishment of those benefiting from the measure or the fact that they have some other link to that Member State — while there is no justification for such a barrier based on overriding reasons of public interest in compliance with the principle of proportionality?

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