# C_2005182EN.01001601.xml

| 23.7.2005 | EN | Official Journal of the European Union | C 182/16 |
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23.7.2005

EN

Official Journal of the European Union

C 182/16

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JUDGMENT OF THE COURT

JUDGMENT OF THE COURT

(Third Chamber)

of 2 June 2005

in Case C-89/04: Reference for a preliminary ruling from the Raad van State in Mediakabel BV v Commissariaat voor de Media (1)

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(Directive 89/552/CEE - Article 1(a) - Television broadcasting services - Scope of application - Directive 98/34/EC - Article 1(2) - Information society services - Scope of application)

(2005/C 182/30)

Language of the case: Dutch

In Case C-89/04: reference for a preliminary ruling under Article 234 EC from the Raad van State (Netherlands), made by decision of 18 February 2004, received at the Court on 20 February 2004, in the proceedings between Mediakabel BV and Commissariaat voor de Media — the Court (Third Chamber) composed of A. Rosas, President of the Chamber, A. Borg Barthet, J. P. Puissochet (Rapporteur), S. von Bahr and J. Malenovský, Judges; A. Tizzano, Advocate General; M. Ferreira, Principal Administrator, for the Registrar, gave a judgment on 2 June 2005, in which it ruled:

| 1. | The concept of ‘television broadcasting’ referred to in Article 1(a) of 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, as amended by Directive 97/36/EC of the European Parliament and of the Council of 30 June 1997, 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/EC of the European Parliament and of the Council of 22 June 1998 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/EC of the European Parliament and of the Council of 20 July 1998, and therefore does not necessarily cover services which are not covered by the latter concept. |
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1.

The concept of ‘television broadcasting’ referred to in Article 1(a) of 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, as amended by Directive 97/36/EC of the European Parliament and of the Council of 30 June 1997, 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/EC of the European Parliament and of the Council of 22 June 1998 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/EC of the European Parliament and of the Council of 20 July 1998, and therefore does not necessarily cover services which are not covered by the latter concept.

| 2. | A service comes within the concept of ‘television broadcasting’ referred to in Article 1(a) of Directive 89/552, as amended by Directive 97/36, 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. |
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2.

A service comes within the concept of ‘television broadcasting’ referred to in Article 1(a) of Directive 89/552, as amended by Directive 97/36, 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.

| 3. | A service such as Filmtime, 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, 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’. However, the situation of services which compete with the service in question is not relevant for that assessment. |
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3.

A service such as Filmtime, 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, 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’. However, the situation of services which compete with the service in question is not relevant for that assessment.

| 4. | The conditions in which the provider of a service such as Filmtime complies with the obligation referred to in Article 4(1) of Directive 89/552, as amended by Directive 97/36, 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. |
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4.

The conditions in which the provider of a service such as Filmtime complies with the obligation referred to in Article 4(1) of Directive 89/552, as amended by Directive 97/36, 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.

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(1)  OJ C 94 of 17.04.2004.

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