Opinion of the Advocate General — ECLI:EU:C:2005:163
Date: 2005-03-10
Language of the case: Dutch
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Right of establishment;Approximation of laws;Freedom to provide services
Procedure: Reference for a preliminary ruling
Origin: Netherlands

Summary of the Judgment 1. Freedom to provide services — Television broadcasting activities — Directive 89/552 — Concept of ‘television broadcasting’ — Definition independent of Article 1(a) of Directive 89/552, irrespective of the concept of ‘information society service’ in Directive 98/34 — Services coming within that concept — Criteria (European Parliament and Council Directive 98/34, Art. 1(2); Council Directive 89/552, Art. 1(a)) 2. Freedom to provide services — Television broadcasting activities — Directive 89/552 — Concept of ‘television broadcasting’ — Service consisting of broadcasting television programmes intended for reception by the public and not provided at the individual request of a recipient — Included — Manner of compliance with the obligation to reserve for European works a majority proportion of transmission time — Irrelevant (Council Directive 89/552, Arts 1(a), and 4(1)) 1. The concept of ‘television broadcasting’ referred to in Article 1(a) of Directive 89/552 concerning the pursuit of television broadcasting activities, as amended by Directive 97/36, 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, 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, and therefore does not necessarily cover services which are not covered by the latter concept. A service comes within the concept of ‘television broadcasting’ 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. (see paras 25, 33, operative part 1-2) 2. A service 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 concerning the pursuit of television broadcasting activities, 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’, as the determining criterion for that concept is the broadcast of television programmes ‘intended for reception by the public’. However, the situation of services which compete with the service in question is not relevant for that assessment. Moreover, the conditions in which the provider of such a service complies with the obligation referred to in Article 4(1) of Directive 89/552, 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. (see paras 42, 45, 52, operative part 3-4)