Opinion of the Advocate General — ECLI:EU:C:2007:637
Date: 2007-10-25
Language of the case: French
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Freedom to provide services
Procedure: Reference for a preliminary ruling
Origin: Belgium

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)