**Case C-250/06**

**United Pan-Europe Communications Belgium SA and Others**

**v**

**État belge**

(Reference for a preliminary ruling from the Conseil d’État (Belgium))

(Article 49 EC – Freedom to provide services – National legislation requiring cable operators to broadcast programmes transmitted by certain private broadcasters (‘must
carry’) – Restriction – Overriding reason relating to the general interest – Maintenance of pluralism in a bilingual region)

Opinion of Advocate General Poiares Maduro delivered on 25 October 2007

Judgment of the Court (Third Chamber), 13 December 2007

Summary of the Judgment

1.     *Preliminary rulings – Admissibility – Need to provide the Court with sufficient explanation of the factual and legislative
context – Scope of the obligation in the area of competition*

*(Art. 234 EC)*

2.     *Freedom to provide services – Restrictions*

*(Art. 49 EC)*

1.     For the Court of Justice to be in a position to give helpful answers to the questions referred to it, it is necessary for
the national court to define the factual and legislative context of the questions it asks or, at the very least, to explain
the factual circumstances on which those questions are based.

That need for precision with regard to the factual and legislative context applies in particular in the area of competition,
which is characterised by complex factual and legal situations.

With regard to the factual context of questions referred on the interpretation of Articles 82 EC and 86 EC, the Court of Justice
must have all the factual and legal information necessary for it to determine whether the conditions relating to the existence
of a dominant position or of abusive conduct for the purposes of Article 82 EC are satisfied, particularly concerning the
relevant market and the way in which the bodies in question hold an individual or collective dominant position.

(see paras 19-21)

2.     Article 49 EC is to be interpreted as not precluding legislation of a Member State which, by virtue of a ‘must-carry’ obligation,
requires cable operators providing services on the relevant territory of that State to broadcast television programmes transmitted
by private broadcasters falling under the public powers of that State and designated by the latter, where such legislation:

– pursues an aim in the general interest, such as the retention, pursuant to the cultural policy of that Member State, of
the pluralist character of the television programmes available in that territory, and

– is not disproportionate in relation to that objective, which means that the manner in which it is applied must be subject
to a transparent procedure based on objective non-discriminatory criteria known in advance.

In particular, each broadcaster must be able to determine in advance the nature and scope of the precise conditions to be
satisfied and, where relevant, the public service obligations it is required to observe if it is to apply for ‘must carry’
status. In that regard, the mere setting out, in the statement of reasons for the national legislation, of declarations of
principle and general policy objectives cannot be considered sufficient.

Next, the award of must-carry status must be based on objective criteria which are suitable for securing pluralism by allowing,
where appropriate, by way of public service obligations, access inter alia to national and local news on the territory in
question. Thus, such status should not automatically be awarded to all television channels transmitted by a private broadcaster,
but must be strictly limited to those channels having an overall content which is appropriate for the purpose of attaining
such an objective. In addition, the number of channels reserved to private broadcasters having that status must not manifestly
exceed what is necessary in order to attain that objective.

Lastly, the award of ‘must carry’ status must not, either in law or in fact, be subject to a requirement of establishment
on the national territory. Furthermore, even where the requirements laid down for the award of must-carry status apply without
discrimination, in so far as those requirements are capable of being more easily satisfied by broadcasters established on
the national territory by reason, in particular, of the content of the programmes to be transmitted, they must be essential
for the attainment of the legitimate objective in the general interest which is being pursued.

It is for the national court to determine whether those conditions are satisfied.

(see paras 46-52, operative part)


JUDGMENT OF THE COURT (Third Chamber)

13 December 2007 ([\*](#Footnote*))

(Article 49 EC – Freedom to provide services – National legislation requiring cable operators to broadcast programmes transmitted by certain private broadcasters (‘must
carry’) – Restriction – Overriding reason relating to the general interest – Maintenance of pluralism in a bilingual region)

In Case C‐250/06,

REFERENCE for a preliminary ruling under Article 234 EC by the Conseil d'État (Belgium), made by decision of 17 May 2006,
received at the Court on 6 June 2006, in the proceedings

**United Pan-Europe Communications Belgium SA,**

**Coditel Brabant SPRL,**

**Société Intercommunale pour la Diffusion de la Télévision (Brutélé),**

**Wolu TV ASBL**

v

**État belge,**

intervening parties:

**BeTV SA,**

**Tvi SA,**

**Télé Bruxelles ASBL,**

**Belgian Business Television SA,**

**Media ad Infinitum SA,**

**TV5-Monde,**

THE COURT (Third Chamber),

composed of A. Rosas, President of the Chamber, U. Lõhmus, J.N. Cunha Rodrigues, A. Ó Caoimh (Rapporteur) and A. Arabadjiev,
Judges,

Advocate General: M. Poiares Maduro,

Registrar: B. Fülöp, Administrator,

having regard to the written procedure and further to the hearing on 18 April 2007,

after considering the observations submitted on behalf of:

–       United Pan-Europe Communications Belgium SA, Coditel Brabant SPRL and Wolu TV ASBL, by F. de Visscher and E. Cornu, avocats,

–       Belgian Business Television SA, by F. Van Elsen, avocat,

–       TV5-Monde and Media ad Infinitum SA, by A. Berenboom and A. Joachimowicz, avocats,

–       Télé Bruxelles ASBL, by C. Doutrelepont and V. Chapoulaud, avocats,

–       the Belgian Government, by A. Hubert, acting as Agent, and by A. Berenboom and A. Joachimowicz, avocats,

–       the Austrian Government, by C. Pesendorfer, acting as Agent,

–       the Portuguese Government, by L. Fernandes and J. Marques Lopes, acting as Agents,

–       the United Kingdom Government, by T. Harris, acting as Agent, and by G. Peretz, Barrister,

–       the Commission of the European Communities, by F. Arbault and M. Shotter, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 25 October 2007

gives the following

**Judgment**

1       This reference for a preliminary ruling relates to the interpretation of Articles 49 EC and 86 EC, the latter being read in
conjunction in particular with Article 82 EC.

2       The reference has been made in the course of proceedings brought by United Pan-Europe Communications Belgium SA (‘UPC’), Coditel
Brabant SPRL, Société Intercommunale pour la Diffusion de la Télévision (Brutélé) and Wolu TV ASBL against État belge relating
to the obligation imposed on them by the latter to broadcast, in the bilingual region of Brussels-Capital, television programmes
transmitted by certain private broadcasters designated by the authorities of that State.

**National legislation**

3       Article 13 of the Law of 30 March 1995 concerning the distribution networks for broadcasting and the exercise of broadcasting
activities in the bilingual region of Brussels-Capital (*Moniteur belge* of 22 February 1996, p. 3797) (‘the Law of 1995’) states:

‘Cable operators who have a permit to operate a distribution network for broadcasts in the bilingual region of Brussels-Capital
must transmit simultaneously and in their entirety the following television programmes:

–       television programmes broadcast by the public service broadcasters falling under the powers of the French Community and those
falling under the powers of the Flemish Community;

–       television programmes broadcast by any other broadcasters of the French or Flemish Communities, as designated by the competent
minister.’

4       That legislative provision was implemented by Ministerial Order of 17 January 2001 concerning the designation of the broadcasters
referred to in the second indent of Article 13 of the Law of 30 March 1995 concerning the distribution networks for broadcasting
and the exercise of broadcasting activities in the bilingual region of Brussels-Capital (*Moniteur belge* of 2 February 2001, p. 2781) (‘the Order of 17 January 2001’), which is worded as follows:

‘...

Whereas the must-carry regime is part of an audiovisual policy designed to enable television viewers to have access to both
public service broadcasters and private broadcasters which assume public service obligations;

Whereas the aim of the must-carry regime is to safeguard the pluralistic and cultural range of programmes available on television
distribution networks and to ensure that all television viewers have access to that pluralism;

Whereas this regime is unquestionably justified in the public interest;

Whereas the choice of private stations enjoying must-carry status has been made in the interest of harmonising the audiovisual
landscape in Belgium;

Whereas the French Community and the Flemish Community have been consulted;

Whereas must-carry status should be granted to designated broadcasting organisations in return for significant obligations
being imposed and to which they have agreed;

Whereas certain designated broadcasting organisations are entrusted with a public service task;

Whereas must-carry status must be conferred on asbl Télé Bruxelles [‘Télé Bruxelles’] and vzw TV Brussel with a view to promoting
the development of local television, broadcasting local news aimed at the local public;

Whereas the consequence of withdrawing must-carry status would be to jeopardise the very existence of those television broadcasting
organisations which could not bear the high costs of distribution,

It is hereby ordered:

Article 1

A distributor which is authorised to operate a television distribution network in the bilingual region of Brussels-Capital
is required to transmit, simultaneously and in their entirety, the television programmes of the following broadcasters:

1.      Vlaamse Media Maatschappij n.v.

2.      TV Brussel v.z.w.

3.      Belgian business television n.v.

4.      Media ad infinitum n.v.

5.      TVi s.a.

6.      [Télé Bruxelles]

7.      Canal+ Belgique s.a. [since renamed BeTV SA]

8.      Satellimages s.a.[since renamed TV5-Monde SA (‘TV5-Monde’)]

...’

5       The Ministerial Order of 24 January 2002 amending the Ministerial Order of 17 January 2001 designating the broadcasters referred
to in the second indent of Article 13 of the Law of 30 March 1995 concerning the distribution networks for broadcasting and
the exercise of broadcasting activities in the bilingual region of Brussels-Capital (*Moniteur belge* of 16 February 2002, p. 6066) (‘the Order of 24 January 2002’) added the following to Article 1 of the Order of 17 January
2001:

‘9.      Event TV Vlaanderen n.v.

10.      YTV s.a.’

**The main proceedings and the questions referred for a preliminary ruling**

6       The applicants in the main proceedings broadcast, through their cable networks, the programmes of a number of broadcasters,
particularly in the bilingual region of Brussels-Capital. The order for reference states that, through that medium, forty
or so channels are available in analogue mode.

7       On 2 April 2001, those cable operators each separately brought an action before the Conseil d’État seeking the annulment of
the Order of 17 January 2001. Subsequently, on 17 April 2002, they brought a joint application before the same court for the
annulment of the Order of 24 January 2002.

8       By judgment of 17 May 2006, the Conseil d’État, which had joined those separate applications, dismissed the actions brought
by Société Intercommunale pour la Diffusion de Télévision (Brutélé) as inadmissible on purely formal grounds. As regards the
actions brought by the other three cable operators, the national court rejected the majority of their claims. However, it
annulled the Order of 17 January 2001 in so far as it provided for the grant of must-carry status to TV5-Monde, on the ground
that the latter, which is a company incorporated under French law established in France, appeared to be an international Francophone
channel which, although an institution falling under the powers of the French Community holds a limited number of shares in
it, was too remotely connected with that Community for it to be treated as ‘falling under the powers of’ that Community for
the purposes of Article 13 of the Law of 1995, and, moreover, that there was nothing to indicate that TV5-Monde had undertaken
commitments in regard to that Community in return for the benefit of the must-carry obligation.

9       As to the remainder, the Conseil d’État has determined that the proceedings before it require the interpretation of Community
law.

10     Firstly, the cable operators in question argue that the contested measures grant private broadcasters with must-carry status
a special right which, in breach of Articles 3(1)(g) EC and 10 EC, as well as Articles 82 EC and 86 EC, is liable to distort
competition between broadcasters and to disadvantage broadcasters established in Member States other than the Kingdom of Belgium,
while BeTV SA occupies a dominant position in French-speaking Belgium on the market for pay-TV. The national court considers
in that regard that the concept of ‘special right’ within the meaning of Article 86 EC has not been defined by the Court.

11     Secondly, those cable operators argue that the contested measures constitute an unjustified restriction, in breach of Articles
3(1)(g) EC, 49 EC and 86 EC, on freedom to provide services by restricting the number of channels available and making them
more costly, while the private broadcasters having must-carry status benefit from the obligation to broadcast imposed on the
cable operators when negotiating access prices with them. In that regard, the national court observes that although it is
not true to say that the infrastructure used by the cable operators in question is saturated, it is, however, likely that
the effect of the contested measures is to place foreign broadcasters which wish to have their programmes distributed by cable
in the bilingual region of Brussels-Capital in a less favourable negotiating position than private broadcasters enjoying must-carry
status.

12     In those circumstances, the Conseil d’Ėtat (Council of State) decided to stay the proceedings and to refer the following questions
to the Court for a preliminary ruling:

‘(1)      Must the obligation imposed on undertakings which distribute television programmes by cable to [broadcast] 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 [EC] and Articles 81 [EC] to
89 [EC]”) be interpreted as not permitting Member States to require undertakings which distribute television programmes by
cable to [broadcast] certain television programmes transmitted by private broadcasting organisations, but “falling under”
(within the meaning of [the Law of 1995]) 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
is reduced by the number of programmes covered by the “must-carry” obligation?

3.      Must Article 49 [EC] be interpreted as meaning that a prohibited restriction of 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 restriction of 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 restriction based on overriding reasons relating to the general interest in compliance
with the principle of proportionality?’

**The questions referred for a preliminary ruling**

*The admissibility of the first two questions, relating to Article 86(1) EC*

13     By its first two questions, the national court asks, in essence, whether Article 86 EC is to be interpreted as meaning that
it precludes legislation of a Member State, such as the legislation at issue in the main proceedings, which provides that
private broadcasters falling under the public powers of that State and which those powers have designated, have the right,
by virtue of a must-carry obligation, to have their television programmes broadcast in their entirety by the cable operators
which provide services in the relevant part of that State.

14     In that regard, it should be noted that Article 86(1) EC provides that, in the case of public undertakings and undertakings
to which Member States grant special or exclusive rights, Member States are neither to enact nor maintain in force any measure
contrary to the rules contained in the EC Treaty, in particular to those rules provided for in Article 12 EC and Articles
81 EC to 89 EC.

15     It is clear from the wording of Article 86(1) EC that it has no independent effect, in the sense that it must be read in conjunction
with the other relevant rules of the Treaty (Case C-295/05 *Asemfo* [2007] ECR I-2999, paragraph 40).

16     The order for reference shows that the relevant provision envisaged by the Conseil d’État is Article 82 EC, according to which
any abuse by one or more undertakings of a dominant position within the common market or in a substantial part of it is prohibited.

17     According to well-established case-law of the Court, the mere creation of a dominant position through the grant of special
or exclusive rights within the meaning of Article 86(1) EC is not in itself incompatible with Article 82 EC. A Member State
will be in breach of the prohibitions laid down by those two provisions only if the undertaking in question, merely by exercising
the special or exclusive rights conferred upon it, is led to abuse its dominant position or where such rights are liable to
create a situation in which that undertaking is led to commit such abuses (Case C-209/98 *Sydhavnens Sten & Grus* [2000] ECR I‐3743, paragraph 66; Case C-475/99 *Ambulanz Glöckner* [2001] ECR I-8089, paragraph 39); and Case C-451/03 *Servizi Ausiliari Dottori Commercialisti* [2006] ECR I‐2941, paragraph 23).

18     The question accordingly arises in the main proceedings whether the legislation at issue in those proceedings, namely the
Law of 1995 and the Orders of 17 January 2001 and of 24 January 2002, had the effect not only of granting the private broadcasters
designated under them special or exclusive rights within the meaning of Article 86(1) EC, but also led to the abuse of a dominant
position within the meaning of Article 82 EC.

19     Nevertheless, if the Court is to be in a position to give helpful answers to the questions referred to it, it is necessary
for the national court to define the factual and legislative context of the questions it asks or, at the very least, to explain
the factual circumstances on which those questions are based (see, to that effect, order in Case C-190/02 *Viacom* [2002] ECR I‐8287, paragraph 15 and the case-law cited, and Case C-134/03 *Viacom Outdoor* [2005] ECR I‐1167, paragraph 22).

20     In that regard, according to the Court’s case-law, the need for precision with regard to the factual and legislative context
applies in particular in the area of competition, which is characterised by complex factual and legal situations (see Case
C-176/96 *Lehtonen and Castors Braine* [2000] ECR I‐2681, paragraph 22; *Viacom Outdoor*, paragraph 23; and Case C-238/05 *Asnef-Equifax and Administración del Estado* [2006] ECR I‐11125, paragraph 23).

21     In the present case, irrespective of the question whether special or exclusive rights were conferred on the private broadcasters
referred to in the Orders of 17 January 2001 and 24 January 2002, neither the order for reference, nor the written observations,
nor, indeed, the oral submissions made at the hearing provide the Court with the factual and legal information necessary for
it to determine whether the conditions relating to the existence of a dominant position or of abusive conduct for the purposes
of Article 82 EC are satisfied. In particular, the national court has not indicated on what relevant market and in what way
the private broadcasters in question hold an individual or collective dominant position.

22     In those circumstances, as Belgian Business Television SA, Media ad infinitum SA, TV5‐Monde, the Belgian Government and the
Commission of the European Communities contend, the Court is unable to provide a useful answer to the first two questions.

23     It follows that the first two questions put by the national court must be declared inadmissible.

*The third and fourth questions, relating to Article 49 EC*

24     By these questions, which should be considered together, the national court asks, in essence, whether Article 49 EC is to
be interpreted as precluding national legislation of a Member State, such as the legislation at issue in the main proceedings,
which requires, by virtue of a must-carry obligation, cable operators providing services on the relevant territory of that
State to broadcast television programmes transmitted by the private broadcasters falling under the public powers of that State
and designated by them.

25     As a preliminary point, it should be noted that, contrary to what a number of interested parties have submitted in their written
observations, that question cannot be examined in the light of Directive 2002/22/EC of the European Parliament and of the
Council of 7 March 2002 on universal service and users’ rights relating to electronic communications networks and services
(Universal Service Directive) (OJ 2002 L 108, p. 51), Article 31 of which authorises the Member States, subject to certain
conditions, to impose a must-carry obligation, inter alia as regards the transmission of television programmes.

26     As is clear from the order for reference, that directive, which is not the subject of any questions put by the Conseil d’État,
has no bearing on the resolution of the main proceedings since, as UPC also pointed out at the hearing, it was not in force
on the date of the adoption of the Orders of 17 January 2001 and of 24 January 2002, the validity which that court is required
to review in those proceedings.

27     It follows that the third and fourth questions fall to be examined only in the light of Article 49 EC.

28     According to the well-established case-law of the Court, the transmission of television signals, including the transmission
of such signals by cable television, constitutes, as such, a supply of services for the purposes of Article 49 EC (see, to
that effect, Case 155/73 *Sacchi* [1974] ECR 409, paragraph 6; Case 52/79 *Debauve and Others* [1980] ECR 833, paragraph 8; Case C-23/93 *TV10* [1994] ECR I‐4795, paragraph 13; and Case C-17/00 *De Coster* [2001] ECR I-9445, paragraph 28).

29     As regards the question whether national legislation, such as the legislation at issue in the main proceedings, gives rise
to a restriction which is prohibited by Article 49 EC, it should be pointed out that, again according to well-established
case-law of the Court, the freedom to provide services requires not only the elimination of all discrimination on grounds
of nationality against providers of services who are established in another Member State, but also the abolition of any restriction,
even if it applies without distinction to national providers of services and to those of other Member States, which is liable
to prohibit, impede or render less advantageous the activities of a provider of services established in another Member State
where it lawfully provides similar services (see, inter alia, *De Coster*, paragraph 29; Joined Cases C‐544/03 and C‐545/03 *Mobistar and Belgacom Mobile* [2005] ECR I‐7723, paragraph 29; Joined Cases C‐94/04 and C‐202/04 *Cipolla and Others* [2006] ECR I‐11421, paragraph 56; and Case C‐208/05 *ITC* [2007] ECR I‐181, paragraph 55).

30     Furthermore, the Court has already held that Article 49 EC precludes the application of any national rules which have the
effect of making the provision of services between Member States more difficult than the provision of services purely within
one Member State (*De Coster*, paragraph 30; *Mobistar and Belgacom Mobile*, paragraph 30; *Cipolla and Others*, paragraph 57; and Case C-76/05 *Schwarz and Gootjes-Schwarz* [2007] ECR I-0000, paragraph 67).

31     In pursuance of those rules, the right to the freedom to provide services may be relied on by an undertaking against the Member
State in which it is established where the services are provided to recipients established in another Member State and, more
generally, whenever a provider of services offers services in a Member State other than the one in which he is established
(see, inter alia, Case C-381/93 *Commission* v *France* [1994] ECR I‐5145, paragraph 14, and *ITC*, paragraph 56).

32     In the present case, it must be held that, as UPC rightly submits, by reason alone of the fact that they do not have must-carry
status in the bilingual region of Brussels-Capital under the national legislation at issue in the main proceedings, broadcasters
established in Member States other than the Kingdom of Belgium, since they do not, unlike the broadcasters which do have that
status, possess an unconditional guarantee that they will be able to access the network held by the cable operators in that
region, are required to negotiate conditions for such access with the latter, in competition, for that purpose, with the other
broadcasters established in the Kingdom of Belgium or in other Member States which also lack that status. The fact, advanced
by Télé Bruxelles and the Belgian Government at the hearing, that no broadcaster established in another Member State has applied
for must-carry status is irrelevant in that regard.

33     The national legislation at issue in the main proceedings thus directly determines the conditions for access to the market
for services in the bilingual region of Brussels-Capital, by imposing on the providers of services established in Member States
other than the Kingdom of Belgium which are not designated under that legislation a burden which is not imposed on the providers
of services designated by it. Such legislation is accordingly liable to hinder the provision of services between Member States
(see, to that effect, Case C-384/93 *Alpine Investments* [1995] ECR I-1141, paragraph 38, and *De Coster*, paragraph 33).

34     It is not clear from the documents before the Court whether Article 13 of the Law of 1995 requires broadcasters to be established
in Belgium in order to obtain must-carry status. Nevertheless, even if that provision were to be construed as not expressly
reserving that status to broadcasters established in Belgium, since it represents, as the Belgian Government has itself stated,
an instrument of cultural policy, the essential purpose of which is to guarantee Belgian citizens access to local and national
news and to their own culture, it is more likely to be granted to broadcasters established in Belgium than in Member States
other than Belgium.

35     By the order for reference, the Conseil d’État has, moreover, set aside the grant of must-carry status to the only broadcaster
established in a Member State other than Belgium, on the ground that that body could not be considered as ‘falling under the
powers of’ the French Community for the purposes of Article 13 of the Law of 1995. Thus, it is not in dispute that following
that decision the broadcasters having that status by virtue of the Orders of 17 January 2001 and of 24 January 2002 were henceforth
all established in Belgium. Moreover, at the hearing, the Belgian Government itself stated that the fact that one of the private
broadcasters possessing that status recently decided to transfer its head office to another Member State is a factor which
would be taken into account in determining the need to maintain that status, even if the content of the programmes broadcast
by that organisation has not changed.

36     It follows that the national legislation at issue in the main proceedings therefore has the effect of making the provision
of services between Member States more difficult than the provision of services purely within the Member State concerned.

37     Contrary to what the Belgian Government has argued, both in its written pleadings and at the hearing, it is irrelevant in
that regard that the restrictive effects of that legislation also extend to private broadcasters established in Belgium which
do not possess must-carry status in the bilingual region of Brussels-Capital. In order for legislation to constitute an obstacle
to the provision of services between Member States, it is not necessary for all undertakings in a Member State to be advantaged
in comparison with foreign undertakings. It is sufficient that that legislation should benefit certain undertakings established
on the national territory (see, to that effect, Case C‐353/89 *Commission* v *Netherlands* [1991] ECR I‐4069, paragraph 25).

38     In those circumstances, it must be held that the national legislation at issue in the main proceedings constitutes a restriction
on freedom to provide services within the meaning of Article 49 EC.

39     The Court has consistently held that such a restriction on a fundamental freedom guaranteed by the Treaty may be justified
only where it serves overriding reasons relating to the general interest, is suitable for securing the attainment of the objective
which it pursues and does not go beyond what is necessary in order to attain it (see, inter alia, Case C-398/95 *SETTG* [1997] ECR I‐3091, paragraph 21; Case C-6/98 *ARD* [1999] ECR I-7599, paragraphs 50 and 51; and *Cipolla and Others*, paragraph 61).

40     As regards, first, the objective pursued by the national legislation at issue in the main proceedings, the Belgian Government
submits that its aim is to preserve the pluralist and cultural range of programmes available on television distribution networks
and to ensure that all television viewers have access to pluralism and to a wide range of programmes, particularly by guaranteeing
to Belgian citizens of the bilingual region of Brussels-Capital that they will not be deprived of access to local and national
news and to their culture. That legislation thus seeks to harmonise the audiovisual landscape in Belgium.

41     In that regard, it should be noted that according to the well-established case-law of the Court, a cultural policy may constitute
an overriding requirement relating to the general interest which justifies a restriction on the freedom to provide services.
The maintenance of the pluralism which that policy seeks to safeguard is connected with freedom of expression, as protected
by Article 10 of the European Convention on Human Rights and Fundamental Freedoms, signed at Rome on 4 November 1950, which
freedom is one of the fundamental rights guaranteed by the Community legal order (see Case C-288/89 *Collectieve Antennevoorziening Gouda* [1991] ECR I‐4007, paragraph 23; *Commission* v *Netherlands*, paragraph 30; Case C-148/91 *Veronica Omroep Organisatie* [1993] ECR I‐487, paragraph 10; and *TV10*, paragraph 19).

42     Consequently, it must be accepted that the national legislation at issue in the main proceedings pursues an aim in the general
interest, since it seeks to preserve the pluralist nature of the range of television programmes available in the bilingual
region of Brussels-Capital and thus forms part of a cultural policy the aim of which is to safeguard, in the audiovisual sector,
the freedom of expression of the different social, cultural, religious, philosophical or linguistic components which exist
in that region.

43     As regards, secondly, the question whether that legislation is suitable for securing the attainment of the aim pursued, it
must be acknowledged, as the Advocate General rightly observed at point 13 of his Opinion, that having regard to the bilingual
nature of the Brussels-Capital region national legislation, such as that at issue in the main proceedings constitutes an appropriate
means of achieving the cultural objective pursued, since it is capable of permitting, in that region, Dutch-speaking television
viewers to have access, via the network of cable operators broadcasting in that area, to television programmes having a cultural
and linguistic connection with the Flemish Community and French-speaking television viewers to have similar access to television
programmes having a cultural and linguistic connection with the French Community. Such legislation thus guarantees to television
viewers in that region that they will not be deprived of access, in their own language, to local and national news as well
as to programmes which are representative of their culture.

44     As regards, thirdly, the question whether the legislation at issue in the main proceedings is necessary in order to attain
the aim pursued, it must be noted that, while the maintenance of pluralism, through a cultural policy, is connected with the
fundamental right of freedom of expression and, accordingly, that the national authorities have a wide margin of discretion
in that regard, the requirements imposed under measures designed to implement such a policy must in no case be disproportionate
in relation to that aim and the manner in which they are applied must not bring about discrimination against nationals of
other Member States (see, to that effect, Case C-379/87 *Groener* [1989] ECR 3967, paragraph 19, and Case C-112/00 *Schmidberger* [2003] ECR I‐5659, paragraph 82).

45     In particular, such legislation cannot render legitimate discretionary conduct on the part of the national authorities which
is liable to negate the effectiveness of provisions of Community law relating to a fundamental freedom (see, to that effect,
Case C‐205/99 *Analir and Others* [2001] ECR I‐1271, paragraph 37, and Case C‐390/99 *Canal Satélite Digital* [2002] ECR I‐607, paragraph 35).

46     Therefore, as the Commission points out, the award of must-carry status must first of all be subject to a transparent procedure
based on criteria known by broadcasters in advance, so as to ensure that the discretion vested in the Member States is not
exercised arbitrarily. In particular, each broadcaster must be able to determine in advance the nature and scope of the precise
conditions to be satisfied and, where relevant, the public service obligations it is required to observe if it is to apply
for that status. In that regard, the mere setting out, in the statement of reasons for the national legislation, of declarations
of principle and general policy objectives cannot be considered sufficient.

47     Next, the award of must-carry status must be based on objective criteria which are suitable for securing pluralism by allowing,
where appropriate, by way of public service obligations, access inter alia to national and local news on the territory in
question. Thus, such status should not automatically be awarded to all television channels transmitted by a private broadcaster,
but must be strictly limited to those channels having an overall content which is appropriate for the purpose of attaining
such an objective. In addition, the number of channels reserved to private broadcasters having that status must not manifestly
exceed what is necessary in order to attain that objective.

48     Lastly, the criteria on the basis of which must-carry status is awarded must be non-discriminatory. In particular, the award
of that status must not, either in law or in fact, be subject to a requirement of establishment on the national territory
(see, to that effect, Case C‐211/91 *Commission* v *Belgium* [1992] ECR I‐6757, paragraph 12).

49     Furthermore, even where the requirements laid down for the award of must-carry status apply without discrimination, in so
far as those requirements are capable of being more easily satisfied by broadcasters established on the national territory
by reason, in particular, of the content of the programmes to be transmitted, they must be essential for the attainment of
the legitimate objective in the general interest which is being pursued.

50     It is for the national court, in the light of the information before it, to examine whether the national legislation at issue
in the main proceedings satisfies those conditions.

51     The answer to the third and fourth questions must therefore be that Article 49 EC is to be interpreted as meaning that it
does not preclude legislation, such as the legislation at issue in the main proceedings, which requires, by virtue of a must-carry
obligation, cable operators providing services on the relevant territory of that State to broadcast television programmes
transmitted by private broadcasters falling under the public powers of that State and designated by the latter, where such
legislation:

–       pursues an aim in the general interest, such as the retention, pursuant to the cultural policy of that Member State, of the
pluralist character of the television programmes available in that territory, and

–       is not disproportionate in relation to that objective, which means that the manner in which it is applied must be subject
to a transparent procedure based on objective non-discriminatory criteria known in advance.

It is for the national court to determine whether those conditions are satisfied.

**Costs**

52     Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court,
the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs
of those parties, are not recoverable.

On those grounds, the Court (Third Chamber) hereby rules:

**Article 49 EC is to be interpreted as meaning that it does not preclude legislation of a Member State, such as the legislation
at issue in the main proceedings, which requires, by virtue of a must-carry obligation, cable operators providing services
on the relevant territory of that State to broadcast television programmes transmitted by private broadcasters falling under
the public powers of that State and designated by the latter, where such legislation:**

–       **pursues an aim in the general interest, such as the retention, pursuant to the cultural policy of that Member State, of the
pluralist character of the television programmes available in that territory, and**

**is not disproportionate in relation to that objective, which means that the manner in which it is applied must be subject
to a transparent procedure based on objective non-discriminatory criteria known in advance.**

**It is for the national court to determine whether those conditions are satisfied.**

[Signatures]

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[\*](#Footref*) Language of the case: French.