# C_2004094EN.01002602.xml

| 17.4.2004 | EN | Official Journal of the European Union | C 94/26 |
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17.4.2004

EN

Official Journal of the European Union

C 94/26

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Reference for a preliminary ruling by the Raad van State by order of that Court of 18 February 2004 in the case of Mediakabel B.V. against Commissariaat voor de Media

(Case C-89/04)

(2004/C 94/57)

Reference has been made to the Court of Justice of the European Communities by order of the Raad van State (Council of State) of 18 February 2004, received at the Court Registry on 20 February 2004, for a preliminary ruling in the case of Mediakabel B.V. against Commissariaat voor de Media on the following questions:

| 1 a. | Is the term ‘television broadcasting’ within the meaning of Article 1(a) of Directive 89/552/EEC (1) to be interpreted as not covering an ‘information society service’ within the meaning of Article 1(2) of Directive 98/34/EC (2), as amended by Directive 98/48/EC (3), but as covering services such as those set out in the indicative list of services not covered by Article 1(2) of Directive 98/34/EC, including ‘near-video on-demand services’, contained in Annex V to Directive 98/34/EC, in particular subparagraph (3), which therefore do not constitute ‘information society services’? |
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1 a.

Is the term ‘television broadcasting’ within the meaning of Article 1(a) of Directive 89/552/EEC (1) to be interpreted as not covering an ‘information society service’ within the meaning of Article 1(2) of Directive 98/34/EC (2), as amended by Directive 98/48/EC (3), but as covering services such as those set out in the indicative list of services not covered by Article 1(2) of Directive 98/34/EC, including ‘near-video on-demand services’, contained in Annex V to Directive 98/34/EC, in particular subparagraph (3), which therefore do not constitute ‘information society services’?

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| 1 b. | If the answer to question 1a is in the negative, how should a distinction be drawn between the term ‘television broadcasting’ within the meaning of Article 1(a) of Directive 89/552/EEC and the term ‘communication services providing items of information or other messages on individual demand’ also set out therein? |
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1 b.

If the answer to question 1a is in the negative, how should a distinction be drawn between the term ‘television broadcasting’ within the meaning of Article 1(a) of Directive 89/552/EEC and the term ‘communication services providing items of information or other messages on individual demand’ also set out therein?

| 2 a. | On the basis of which criteria must it be determined whether a service such as that at issue, which involves encoded signals, transmitted over a network, of a range of films selected by the provider, which subscribers can, in return for a separate payment per film and using a key sent by the provider on individual demand, decode and view at various times determined by the provider, and which contains elements of an (individual) information society service and also elements of a television broadcasting service, constitutes a television broadcasting service or an information society service? |
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2 a.

On the basis of which criteria must it be determined whether a service such as that at issue, which involves encoded signals, transmitted over a network, of a range of films selected by the provider, which subscribers can, in return for a separate payment per film and using a key sent by the provider on individual demand, decode and view at various times determined by the provider, and which contains elements of an (individual) information society service and also elements of a television broadcasting service, constitutes a television broadcasting service or an information society service?

| 2 b. | In this regard is particular significance to be attributed to the standpoint of the subscriber or rather to that of the service provider? Is the kind of services with which the service concerned is in competition relevant in this regard? |
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2 b.

In this regard is particular significance to be attributed to the standpoint of the subscriber or rather to that of the service provider? Is the kind of services with which the service concerned is in competition relevant in this regard?

| 3. | In that connection is it relevant that,






  — | on the one hand, classification of a service such as that at issue as an ‘information society service’ to which Directive 89/552/EEC does not apply, might undermine the effectiveness of that directive, in particular as regards the objectives underlying the requirement thereunder to reserve a specific percentage of transmission time for European works, and, |
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3.

In that connection is it relevant that,

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on the one hand, classification of a service such as that at issue as an ‘information society service’ to which Directive 89/552/EEC does not apply, might undermine the effectiveness of that directive, in particular as regards the objectives underlying the requirement thereunder to reserve a specific percentage of transmission time for European works, and,

| — | on the other, if Directive 89/552/EEC does apply, the requirement thereunder to reserve a specific percentage of transmission time for European works is not entirely apposite because the subscribers pay per film and can only view the film which has been paid for? |
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on the other, if Directive 89/552/EEC does apply, the requirement thereunder to reserve a specific percentage of transmission time for European works is not entirely apposite because the subscribers pay per film and can only view the film which has been paid for?

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(1)  OJ L 298 of 17.10.1989, p. 23.

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(2)  OJ L 204 of 21.07.1998, p. 37.

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(3)  OJ L 217 of 5.08.1998, p. 18.

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