Judgment — ECLI:EU:C:2011:117
Date: 2011-03-03
Language of the case: French
Court formation: Third Chamber
Subject matter: Telecommunications
Procedure: Action for failure to fulfil obligations - successful
Origin: Belgium

Summary of the Judgment 1. Approximation of laws – Electronic communications networks and services – Universal service and users’ rights – Directive 2002/22 – Distribution of radio or television broadcasts to the public – Reasonable ‘must carry’ obligations (Art. 56 TFEU; European Parliament and Council Directive 2002/22, Art. 31(1)) 2. Approximation of laws – Electronic communications networks and services – Universal service and users’ rights – Directive 2002/22 – Distribution of radio or television broadcasts to the public – Reasonable ‘must carry’ obligations (Art. 56 TFEU; European Parliament and Council Directive 2002/22, Art. 31(1)) 3. Approximation of laws – Electronic communications networks and services – Universal service and users’ rights – Directive 2002/22 – Distribution of radio or television broadcasts to the public – Reasonable ‘must carry’ obligations (Art. 56 TFEU; European Parliament and Council Directive 2002/22, Art. 31(1)) 1. In accordance with the second sentence of Article 31(1) of Directive 2002/22, on universal service and users’ rights relating to electronic communications networks and services, ‘must-carry’ obligations may be imposed only where they are necessary to meet clearly defined general interest objectives and must be proportionate and transparent. The objective of guaranteeing pluralism and cultural diversity, through a cultural policy, is a general interest objective which is connected with the fundamental right of freedom of expression. However, even if the national authorities have a wide margin of discretion in that regard, the requirements imposed by 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. Accordingly, ‘must-carry’ status must be strictly limited to those channels having an overall content capable of attaining the general interest objective pursued. The mere statement of a general policy objective, not accompanied by any additional factor capable of enabling operators to determine in advance the nature and effect of the precise conditions and obligations to be fulfilled if they apply for the award of ‘must-carry’ status, does not clearly define the actual criteria relied upon by the national authorities to select the television broadcasters benefiting from the ‘must-carry’ obligation, and is not sufficiently precise to ensure that the broadcasters selected are those whose content, in its entirety, is capable of meeting the general interest cultural objective pursued. (see paras 50, 52-55) 2. National legislation which does not specify any objective criteria known in advance relied upon by the Member State concerned in order to designate the programmes of broadcasters benefiting from the ‘must-carry’ obligation does not allow non-public television broadcasters capable of benefiting from the ‘must-carry’ obligation to meet the conditions to be fulfilled for the award of ‘must-carry’ status and does not observe the principle of transparency, as provided for in Article 31(1) of Directive 2002/22, on universal service and users’ rights relating to electronic communications networks and services. Respect of that principle is also not guaranteed where such legislation does not prescribe in a sufficiently clear manner that the benefit of the ‘must-carry’ status may be awarded only to those television channels specified, as required by Article 31(1). It follows from that provision that ‘must-carry’ 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 capable of attaining the general interest objective pursued. Moreover, 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 in the national territory. National legislation which does not render it impossible that the award of ‘must-carry’ status requires, in law and in fact, those non-public broadcasters capable of benefiting from that status to be established in the Member State at issue is also not sufficient to satisfy the condition of transparency under Article 31(1) of Directive 2002/22. (see paras 59-60, 63, 65-68) 3. The ‘must-carry’ obligations arising from Article 31(1) of Directive 2002/22 concerning universal service and users’ rights on universal service and users’ rights relating to electronic communications networks and services may be imposed on operators of electronic communications networks only where a significant number of end-users of those networks use them as their principal means of receiving radio and television programmes. A Member State does not correctly transpose that provision when providing for the possibility, for its national authorities, to relieve network operators of their ‘must-carry’ obligations if the number of end-users who use that network as their principal means of receiving broadcast television programmes is not sufficient. That system permits those authorities, in the event of refusing that dispensation, to impose those obligations on those operators and to require them to prove that the conditions for obtaining the dispensation have been met. (see paras 73-75)