Opinion of the Advocate General — ECLI:EU:C:2015:434
Date: 2015-07-01
Language of the case: German
Subject matter: Freedom to provide services
Procedure: Reference for a preliminary ruling
Origin: Austria

Summary — Judgment of the Court (Second Chamber), 21 October 2015 1. Freedom to provide services — Television broadcasting activities — Directive 2010/13 — Scope — Programme — Concept — Short videos available on the website of a newspaper — Included (European Parliament and Council Directive 2010/13, recital 21, and Art. 1(1)(b) and (g)) 2. Freedom to provide services — Television broadcasting activities — Directive 2010/13– Scope — Audiovisual media service — Determination of the principal purpose — Criteria — To be determined by the national court (European Parliament and Council Directive 2010/13, Art. 1(1)(a)(i)) 1. The concept of programme, within the meaning of Article 1(1)(b) of Directive 2010/13 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services, must be interpreted as including, under the subdomain of a website of a newspaper, the provision of videos of short duration consisting of local news bulletins, sports and entertainment clips. That provision requires that video clips can be compared to the form and content of television broadcasting, and not that a complete compilation of short videos can be compared to a complete schedule or a catalogue established by a television broadcaster. Moreover, the fact that the videos at issue are short does not rule out their classification as a programme. Similarly, as regards the possibility, for the internet user, of having access to the video which interests him upon individual request when he wants on the basis of a catalogue established by the operator of the online newspaper, that does not alter the fact that, like a television broadcast programme, the videos are aimed at a mass audience and are likely to have a clear impact on that audience within the meaning of recital 21 of Directive 2010/13. Furthermore, such a possibility corresponds to that explicitly provided for in the definition of an on-demand audiovisual media service, contained in Article 1(1)(g) of Directive 2010/13. Consequently, the manner in which the videos are selected is no different from that proposed in the context of on-demand audiovisual media services, which fall within the scope of that directive. (see paras 19-21, 24, operative part 1) 2. On a proper interpretation of Article 1(1)(a)(i) of Directive 2010/13 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services assessment of the principal purpose of a service making videos available offered in the electronic version of a newspaper must focus on whether that service has content and form which is independent of that of the journalistic activity of the operator of the website at issue, and is not merely an indissociable complement to that activity, in particular as a result of the links between the audiovisual offer and the offer in text form. That assessment is a matter for the national court. An electronic version of a newspaper, notwithstanding the audiovisual elements within it, must not be regarded as audiovisual services where those audiovisual elements are incidental and serve only to complement the provision of written press articles. However, Directive 2010/13 cannot be understood as meaning that an audiovisual service must systematically be excluded from the scope of that directive solely on the ground that the operator of the website of which that service is part is a publishing company of an online newspaper. In that connection, preference must be given to a substantive approach which, according to the wording of Article 1(1)(a)(i), consists of examining whether the principal purpose of the service at issue, in itself and regardless of the framework in which it is offered, is the provision of programmes to inform, entertain or educate the general public. Accordingly, if the service offered in the videos subdomain has form and content which is independent of that of the written press articles of the publisher of an online newspaper, it falls within the scope of Directive 2010/13. If, on the other hand, that service appears to be indissociably complementary to the journalistic activity of that publisher, in particular as a result of the links between the audiovisual offer and the offer in text form, it does not fall within the scope of that directive. When carrying out the analysis, the fact that the audiovisual offer at issue is presented in the principal domain of the website concerned or in a subdomain of that website cannot be the decisive factor, so as not to open the way for the rules of Directive 2010/13 to be circumvented by designing that website to that end. (see paras 26, 28, 33-35, 37, operative part 2)