61994CC0222_EN
Opinion of the Advocate-General
Opinion of the Advocate-General
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A - Introduction
1 The present case and Case C-11/95, in which I am also delivering my Opinion today, provide the Court with its first opportunity to address some of the central problems arising from Council Directive 89/552/EEC of 3 October 1989 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities (1) (hereinafter `the television directive').
Relevant provisions of Community law
2 The Court has consistently held that the transmission of television signals - including those in the nature of advertisements - must be regarded as a provision of services within the meaning of Articles 59 and 60 of the EC Treaty. (2)
The scope of the freedom to provide services protected by those provisions is also applicable if a cable network operator established in one Member State distributes television programmes of broadcasters from other Member States. (3)
3 The principal objective pursued by the television directive is to remove barriers to the free provision of television broadcasting services. (4)
The recitals in the preamble to the directive state as follows:
`[9] ... the laws, regulations and administrative measures in Member States concerning the pursuit of activities as television broadcasters and cable operators contain disparities, some of which may impede the free movement of broadcasts within the Community and may distort competition within the common market;
[10] ... all such restrictions on freedom to provide broadcasting services within the Community must be abolished under the Treaty;
[11] ... such abolition must go hand in hand with coordination of the applicable laws; ... this coordination must be aimed at facilitating the pursuit of the professional activities concerned and, more generally, the free movement of information and ideas within the Community;
[12] ... it is consequently necessary and sufficient that all broadcasts comply with the law of [the] Member State from which they emanate'. (5)
According to the grounds given by the Council, the television directive lays down `the minimum rules needed to guarantee freedom of transmission in broadcasting'.
The organization, financing and content of programmes remain the responsibility of the Member States. (6)
The subsequent recitals provide that:
`[14] ... it is necessary, in the common market, that all broadcasts emanating from and intended for reception in the Community, and in particular those intended for reception in another Member State, should respect the law of the originating Member State applicable to broadcasts intended for reception by the public in that Member State and the provisions of this Directive;
[15] ... the requirement that the originating Member State should verify that broadcasts comply with national law as coordinated by this Directive is sufficient under Community law to ensure free movement of broadcasts without secondary control on the same grounds in the receiving Member States; ... however, the receiving Member State may, exceptionally and under specific conditions, provisionally suspend the retransmission of televised broadcasts'. (7)
4 Article 1 of the television directive, which comprises Chapter I thereof, sets out a number of definitions. The term `television broadcasting', inter alia, is there defined for the purposes of the directive.
That term is there to be understood as meaning `the initial transmission by wire or over the air, including that by satellite, in unencoded or encoded form, of television programmes intended for reception by the public'.
5 Chapter II of the directive (`General provisions') contains Articles 2 and 3.
Those articles provide as follows:
`Article 2
1. Each Member State shall ensure that all television broadcasts transmitted
- by broadcasters under its jurisdiction, or
- by broadcasters who, while not being under the jurisdiction of any Member State, make use of a frequency or a satellite capacity granted by, or a satellite up-link situated in, that Member State,
comply with the law applicable to broadcasts intended for the public in that Member State.
2. Member States shall ensure freedom of reception and shall not restrict retransmission on their territory of television broadcasts from other Member States for reasons which fall within the fields coordinated by this Directive. Member States may provisionally suspend retransmissions of television broadcasts if the following conditions are fulfilled:
(a) a television broadcast coming from another Member State manifestly, seriously and gravely infringes Article 22;
(b) during the previous 12 months, the broadcaster has infringed the same provision on at least two prior occasions;
(c) the Member State concerned has notified the broadcaster and the Commission in writing of the alleged infringements and of its intention to restrict retransmission should any such infringement occur again;
(d) consultations with the transmitting State and the Commission have not produced an amicable settlement within 15 days of the notification provided for in point (c), and the alleged infringement persists.
The Commission shall ensure that the suspension is compatible with Community law.
It may ask the Member State concerned to put an end to a suspension which is contrary to Community law, as a matter of urgency.
This provision is without prejudice to the application of any procedure, remedy or sanction to the infringements in question in the Member State which has jurisdiction over the broadcaster concerned.
3. This Directive shall not apply to broadcasts intended exclusively for reception in States other than Member States, and which are not received directly or indirectly in one or more Member States.
Article 3
1. Member States shall remain free to require television broadcasters under their jurisdiction to lay down more detailed or stricter rules in the areas covered by this Directive.
2. Member States shall, by appropriate means, ensure, within the framework of their legislation, that television broadcasters under their jurisdiction comply with the provisions of this Directive.' (8)
6 Chapter III (`Promotion of distribution and production of television programmes') contains, in Articles 4 to 9, provisions that are designed to ensure `for European productions ... a majority proportion in television programmes of all Member States'. (9)
Moreover, `new sources of television production' (10) in the Community should be stimulated by reserving part of transmission time or the budgets of television producers for independent producers.
7 Article 4 of the directive accordingly prescribes that the Member States shall ensure `where practicable and by appropriate means' that broadcasters reserve for European works (11) a majority proportion of their transmission time, excluding the time appointed to news, sports events, games, advertising and teletext services (Article 4(1)). If this proportion cannot be attained, it must not be lower than the average for 1988 or 1990 in the Member State concerned (Article 4(2)).
Article 5 of the directive requires Member States to ensure, `where practicable and by appropriate means', that broadcasters reserve at least 10% of their transmission time, or at least 10% of their programming budget, for European works created by producers who are independent of broadcasters.
8 Chapter IV (Articles 10 to 21) of the directive contains provisions relating to television advertising and sponsorship.
9 Chapter V (Article 22) of the directive deals with the protection of minors.
This requires Member States to ensure that television broadcasts by broadcasters under their jurisdiction do not include programmes `which might seriously impair the physical, mental or moral development of minors, in particular those that involve pornography or gratuitous violence'.
10 Chapter VI (Article 23) of the directive deals with the right of reply.
Chapter VII (Articles 24 to 27) contains final provisions.
Under Article 25(1) of the directive, Member States were required to bring into force the laws, regulations and administrative provisions necessary to comply with that directive not later than 3 October 1991. Under Article 25(2) of the directive, the text of the main provisions of national law adopted by the Member States in the fields governed by the directive had to be communicated to the Commission.
The Council of Europe Convention
11 On 5 May 1989, the Council of Europe adopted the European Convention on Transfrontier Television. (12)
The fourth recital in the preamble to the television directive refers to this Convention. (13)
12 The provisions of the Convention include the following:
`Article 2: Terms employed
For the purposes of this Convention:
a. "Transmission" means the initial emission by terrestrial transmitter, by cable, or by satellite of whatever nature, in encoded or unencoded form, of television programme services for reception by the general public.
It does not include communication services operating on individual demand;
...
c. "Broadcaster" means the natural or legal person who composes television programme services for reception by the general public and transmits them or has them transmitted, complete and unchanged, by a third party;
d. "Programme service" means all the items within a single service provided by a given broadcaster within the meaning of the preceding paragraph;
...
Article 3: Field of application
This Convention shall apply to any programme service transmitted or retransmitted by entities or by technical means within the jurisdiction of a Party, whether by cable, terrestrial transmitter or satellite, and which can be received, directly or indirectly, in one or more other Parties.
...
Article 5: Duties of the transmitting Parties
1. Each transmitting Party shall ensure, by appropriate means and through its competent organs, that all programme services transmitted by entities or by technical means within its jurisdiction, within the meaning of Article 3, comply with the terms of this Convention.
2. For the purposes of this Convention, the transmitting Party shall be:
a. in the case of terrestrial transmissions, the Party in which the initial emission is effected;
b. in the case of satellite transmissions:
i. the Party in which the satellite up-link is situated;
ii. the Party which grants the use of the frequency or a satellite capacity when the up-link is situated in a State which is not a Party to this Convention;
iii. the Party in which the broadcaster has its seat when responsibility under sub-paragraphs (i) and (ii) is not established.
...
Article 27: Other international agreements or arrangements
1. In their mutual relations, Parties which are members of the European Economic Community shall apply Community rules and shall not therefore apply the rules arising from this Convention except in so far as there is no Community rule governing the particular subject concerned.
...'
The legal position in the United Kingdom
13 The provision of television services by independent broadcasters is governed in the United Kingdom by Part I of the Broadcasting Act 1990. (14)
The Act provides in this regard for the establishment of a commission - the Independent Television Commission (hereinafter `the ITC') - on which important functions are conferred.
This Act also contains the provisions designed to give effect to the television directive in this area.
Thus, for instance, Articles 4 and 5 of the television directive are intended to be implemented by the provisions contained in section 16(2)(g) and (h) of the Act.
14 Under section 13 of the Act, television services may be provided by independent broadcasters only if they hold an appropriate licence.
This licence is issued by the ITC.
15 Chapter III (sections 43 to 45) of Part I of the Broadcasting Act 1990 contains provisions on television broadcasts transmitted by satellite.
In this connection, section 43 distinguishes two types of television broadcasts.
Both types are `television services' within the meaning of the Act, with the result that their provision is subject to possession of a licence.
Section 43 also sets out the criteria which conclusively determine whether a television broadcast falls within one or the other category:
- Under section 43(1) of the Act, a service is a `domestic satellite service' (hereinafter `DSS') if television programmes are transmitted by satellite from a place in the United Kingdom, on condition (a) that this occurs on a frequency allocated to the United Kingdom and (b) that the programmes are for general reception in the United Kingdom;
- under section 43(2) of the Act, a service is a `non-domestic satellite service' (hereinafter `NDSS') if:
(a) television programmes are transmitted by satellite from a place in the United Kingdom for general reception in the United Kingdom or another Community Member State otherwise than on a frequency allocated to the United Kingdom; or
(b) television programmes for general reception in the United Kingdom or another Community Member State are transmitted by satellite from a place which is neither in the United Kingdom nor in any other Community Member State, if and to the extent that the programmes consist of material provided by a person in the United Kingdom who was in a position to determine what was to be included in the service.
16 DSS and NDSS are subject to different licensing rules under the Act.
Section 44 of the Act deals with the licensing of DSS.
Subsection (3) of section 44 provides, inter alia, that the provisions contained in section 16(2)(g) and (h) are applicable.
Those provisions state that the programmes to which they apply must comply with, inter alia, the following conditions:
`(g) that a proper proportion of the matter included in those programmes is of European origin; and
(h) that in each year not less than 25 per cent of the total amount of time allocated to the broadcasting of qualifying programmes in the service is allocated to the broadcasting of a range and diversity of independent productions.'
Section 45 is applicable to NDSS.
Section 45 does not contain any provision corresponding to section 44(3).
17 Chapter IV of Part I of the Broadcasting Act 1990 contains provisions relating to `licensable programme services'.
According to the information provided by the United Kingdom, these are services connected to the preparation of programmes to be broadcast over cable networks and which do not come under any other provisions of the Broadcasting Act 1990.
The issue of licensing of these services is dealt with in section 47(2) of the Act.
18 Part II (section 72 et seq.) of the Broadcasting Act 1990 deals with what are referred to as `local delivery services', which also require to be licensed by the ITC. Section 79(2) of the Act refers in this connection to corresponding services which consist in, or include, the transmission of foreign satellite programmes.
19 Finally, section 188 of the Act should also be mentioned.
Under this provision, the Minister responsible may direct the ITC to carry out any functions necessary to ensure that the United Kingdom gives effect to its international obligations.
Course of the proceedings
20 Following an examination of the provisions of the Broadcasting Act 1990, the Commission formed the view that the United Kingdom had failed correctly to transpose several articles of the television directive into national law.
The Commission sent a letter to the United Kingdom on 3 November 1992 inviting it, pursuant to Article 169 of the Treaty, to set out its views on the criticisms raised by the Commission.
The United Kingdom submitted its observations on those criticisms in a letter of 10 February 1993.
21 The Commission sent a reasoned opinion to the United Kingdom on 30 September 1993, to which the latter responded by letter of 25 January 1994.
22 The Commission lodged an application under Article 169 of the Treaty with the Court of Justice on 28 July 1994, which forms the basis of the present proceedings.
In its application, the Commission submits that the Court should declare that
(a) by adopting with respect to satellite broadcasts the criteria set forth in section 43 of the Broadcasting Act 1990 for determining which satellite broadcasters fall under the jurisdiction of the United Kingdom, and, within that jurisdiction, by applying a different regime to non-domestic satellite services as that applicable to domestic satellite services,
and
(b) by exercising control over broadcasts which are transmitted by a broadcaster that falls under the jurisdiction of another Member State when those broadcasts are transmitted by a non-domestic satellite service or conveyed to the public as a licensable programme service or by a local delivery service,
the United Kingdom has failed to fulfil its obligations under Article 2(1) and (2) and Article 3(2) of the television directive.
The Commission also requests that the United Kingdom be ordered to pay the costs of the proceedings.
23 The defendant contends that the application should be dismissed.
France has intervened in the proceedings in support of the Commission.
B - Analysis
Scope of the action
24 The United Kingdom has expressed the view in its statement of defence that the Commission's action is based on a misunderstanding of the national provisions in so far as it concerns the local delivery services referred to in section 79 of the Broadcasting Act 1990.
It submits that although section 79(2) of the Act refers in this connection to foreign satellite programmes, the rules contained in section 79(5) of the Act and in an implementing order (15) make it clear that this does not apply to programmes transmitted by satellite from other Member States.
25 The Commission accepted this explanation and confirmed during the oral procedure before the Court that this issue had consequently been resolved.
Review of the complaints raised by the Commission
26 The parties to the present dispute proceed on the agreed basis that it is `necessary and sufficient' under the scheme of the television directive that television broadcasts `comply with the law of the Member State from which they emanate'. (16)
Likewise, it is common ground that the answer to the question as to which particular Member State is to be regarded as the `originating Member State' (17) for that purpose lies in Article 2(1) of the directive.
The parties also agree that Article 2(2) of the directive imposes on Member States an obligation not to prevent free reception and retransmission of television broadcasts from other Member States - apart from the exception provided for in the second sentence of Article 2(2) - for reasons falling within the fields coordinated by the directive.
The parties are therefore in agreement that a Member State (the `receiving Member State') may not in this regard make the retransmission of television broadcasts from other Member States subject to licensing. (18)
As I have set out in my Opinion in Case C-11/95, I concur with these views expressed by the parties to the present proceedings.
27 The main issue of contention in the present proceedings concerns the question how the rules contained in Articles 2(1) and 3(2) of the directive, referring to television broadcasters under the `jurisdiction' of the Member State of origin, should be understood.
The Commission takes the view in this regard that this refers to those television broadcasters that are established in the Member State in question.
The rule contained in section 43 of the Broadcasting Act 1990, it argues, consequently breaches the above provisions of the directive since it focuses on different criteria.
Against this, the United Kingdom takes the view that broadcasters under the `jurisdiction' of a Member State must be understood as referring to those broadcasters which transmit their television programmes from locations within the territory of the Member State in question.
28 The Commission argues that there are other grounds on which the rule contained in section 43 of the Broadcasting Act 1990 breaches Articles 2(1) and 3(2) of the television directive.
First, the criterion of reception used in section 43 of the Act has no bearing on the question as to which Member State is responsible for a television broadcaster under the directive.
Second, the national rule fails to ensure that broadcasts from non-member countries, which are intended for general reception in another Member State and also use a frequency allocated to the United Kingdom, comply with the law applicable to programmes intended for general reception in the United Kingdom. Finally, the distinction between DSS and NDSS constitutes a further breach of Article 2(1) of the television directive, which requires each Member State to ensure that all television broadcasts transmitted by broadcasters under its jurisdiction comply with the law applicable to broadcasts intended for the public in that Member State.
29 The United Kingdom contests those complaints.
So far as concerns the first breach complained of by the Commission, the United Kingdom argues that the provision contained in section 43(1) of the Act no longer has any practical significance.
The reference in section 43(2) to the criterion of reception is intended solely to limit the scope of the Act, as provided for in Article 2(3) of the television directive.
With regard to the second complaint, it submits that such a breach could occur only in the hypothetical but unrealistic event of the United Kingdom permitting a television broadcaster from a non-member country to use such a frequency without at the same time exercising control over that broadcaster's service.
In respect of the last complaint, the United Kingdom takes the view that the television directive permits the provision of less stringent arrangements for NDSS.
It adds, however, that section 188 of the Broadcasting Act 1990 enables the Minister responsible to direct the ITC to instruct NDSS to comply with Articles 4 and 5 of the television directive.
The question whether any use is actually being made of that power does not, it submits, form part of the subject-matter of the present proceedings.
30 Finally, the Commission claims that the United Kingdom has, through sections 44 and 45 of the Broadcasting Act 1990, breached the right to free reception and retransmission of television programmes protected by Article 2(2) of the television directive in so far as the definition contained in section 43 of the Act also covers television broadcasters under the jurisdiction of other Member States.
There is also, according to the Commission, a breach of Article 2(2) of the directive with regard to licensable programme services, since these may contain television broadcasts originally transmitted by broadcasters falling under the jurisdiction of other Member States.
31 Against this, the United Kingdom expresses the view that Article 2(2) of the television directive supports the interpretation of Article 2(1) of the directive which it advocates.
The national provisions, it argues, focus on the broadcasting of television programmes in the United Kingdom.
Article 2(2) of the directive, however, refers to television broadcasts `from other Member States'.
The interpretation of Article 2(1) of the television directive
32 The first indent of Article 2(1) of the television directive provides that the originating Member State responsible for monitoring television broadcasts is that Member State under whose `jurisdiction' the broadcaster in question comes.
The second indent of Article 2(1) sets out other connecting criteria only for the case in which a television producer is not under the jurisdiction of a Member State.
It is for that reason necessary to examine what meaning attaches to the concept of a Member State's `jurisdiction' in this connection.
The wording
33 This concept is not defined in the directive itself. Nor can any clear inferences be drawn from the wording of the provisions or from the recitals in the preamble to the television directive.
This applies in particular with regard to the directive's recitals.
If one considers the 12th, 14th and 15th recitals in the various language versions, it can be established that expressions are used that focus primarily on the origin (19) or provenance (20) of the programmes.
It must be conceded in favour of the defendant that this mode of expression is readily compatible with a concept which focuses on the Member State in which the television broadcasts at issue are in fact first transmitted - whether by terrestrial transmitter, cable or satellite.
If, for instance, such transmission takes place in France, this would constitute, in Belgium and other recipient Member States, `broadcasts from other Member States', as that expression is used in Article 2(2) of the directive.
Contrary to the view taken by the defendant, however, the interpretation advocated by the Commission is also compatible with this mode of expression, without it being necessary to confer an artificial or forced meaning to the expressions in question for that purpose.
To employ an example which one of the parties has actually used: if a programme of a broadcaster established in France is transmitted from Belgium, one can quite properly take the view that the programmes have their origin in France or originate there.
34 The comparison of the various language versions, however, also reveals a number of expressions which appear clearly to support the view taken by the United Kingdom. (21)
It should, however, be noted that these appear to be exceptions and that there is reasonable doubt as to whether such expressions properly reflect the Council's intentions. (22)
35 Nor does it necessarily follow from the definition of the term `television broadcasting' in Article 1 of the television directive, to which it has attached particular significance in its rejoinder, that the view which the United Kingdom expresses is correct.
While it is true that the concept of `initial transmission', by which one may understand the actual broadcasting, is central to this definition, this does not, in my view, provide any essential information for resolving the question here under consideration.
This is because Article 2(1) of the television directive focuses, not on the television broadcasting as such, but rather on the broadcasters under the jurisdiction of a Member State.
36 Nor, in my view, does the draft amendment to the television directive submitted last year by the Commission (23) enable any conclusions to be drawn.
In that draft, the Commission proposes inter alia that the provision here at issue should be amended.
The proposed new version refers expressly to the State in which the broadcaster is established. (24)
This draft has not yet been accepted by the Council and therefore has no bearing on the interpretation of the law in force.
On the other hand, one also cannot conclude from this proposal that the content of the law in force is at variance with it, since one of the grounds of the proposal is that there is a need solely `to clarify' the law in force. (25)
Connection with the case-law on the freedom to provide services
37 The Commission points out that according to the case-law television broadcasts are to be regarded as services and the television directive has as its purpose to guarantee the freedom to provide services in that regard. (26) Article 59 et seq. of the Treaty relate to the rights of nationals of Member States who have established themselves in another Member State as the recipient of those services. The Court has also ruled that the scope of Articles 59 and 60 is defined by reference to the places of establishment or of residence of the provider of the services and of the person for whom they are intended. (27)
The Commission concludes from all of this that the term `jurisdiction' in Article 2(1) of the television directive cannot be construed in a sense which fundamentally differs from that which the Court has given in its case-law to the concept of `establishment' in Articles 52, 59 and 60 of the Treaty. Had the Community legislature, in abolishing restrictions on the freedom to provide broadcasting services, intended to act in a manner different to that in other areas, it would, the Commission argues, have expressed such an intention by means of specific and precise rules.
38 I do not find that argument convincing.
The reference to Article 52 of the Treaty - as the defendant has correctly noted - is in any event irrelevant, since we are here concerned with the area of freedom to provide services, not the freedom of establishment protected by Article 52.
Also with regard to Articles 59 and 60 of the Treaty, the Commission's arguments strike me as being anything but cogent.
The Council decided in the television directive to promote freedom to provide services in the television sector by providing that the programmes of a broadcaster should in principle have to comply only with the law of one single Member State - the originating Member State.
Indeed, it seems obvious to assume that this Member State should be the one in which the broadcaster in question is established.
In my view, however, the Council could just as well have decided to determine the competent Member State on the basis of a different criterion - such as that of the place in which the programme is first transmitted - if the desired objective of ensuring the free provision of services could also be achieved in this way.
Whether this was in fact the case remains to be considered. (28)
For the present context, suffice it to note that the Council was not under any obligation to declare competent that Member State in which the broadcaster in question is established.
For that reason, the connection between the rules here under consideration and the area of the freedom to provide services is not in itself sufficient to make the interpretation of Article 2(1) of the television directive advocated by the Commission appear inevitable.
The classification of the rule contained in Article 2(1) of the directive
39 Considerably more weight attaches to the Commission's argument based on the classification of the provision in question.
According to the view taken by the United Kingdom, the competent Member State falls to be determined according to the place where the initial transmission (within the meaning of the definition of `television broadcasting' set out in Article 1) occurs.
In the case of satellite transmission, this means that the competent Member State is that which provides the satellite up-link or authorizes the use of a frequency or satellite capacity. However, all of these connecting points are mentioned in the second indent of Article 2(1) of the television directive.
If, however, one of those criteria was sufficient to establish the `jurisdiction' of a Member State, the broadcaster in question would already be covered by the first indent of Article 2(1).
The second indent, as the Commission correctly points out, would for that reason be unnecessary.
It cannot, however, be assumed that the Community legislature includes superfluous provisions in its legal measures.
40 The attempts by the United Kingdom to explain this contradiction have failed to convince me.
According to the defendant, the relationship between the two indents in Article 2(1) of the television directive should not be regarded as a `hierarchy', as the Commission has done, but rather as a `dichotomy'.
This, in my opinion, is a dispute about words to which no special significance should be attached.
It is, after all, clear that a broadcaster cannot at one and the same time be covered by both indents, since the persons to whom the second indent relates are broadcasters which are not under the jurisdiction of any Member State.
From this it necessarily follows that the `jurisdiction' mentioned in the first indent cannot consequently be based on the factors mentioned in the second indent.
The rule set out in Article 2(1) of the television directive seems to me to be clear and unambiguous on this point.
There cannot therefore be any question of imprecise formulation, as the defendant believes it can identify.
41 Nor is the result which I have reached capable of being affected by the view expressed by the defendant, to the effect that the second indent of Article 2(1) of the directive clearly relates to the case of satellite transmission of television programmes and that therefore a different situation must have been intended in the first indent.
Even if this first indent did indeed relate to terrestrial transmission of television programmes, as the defendant suspects, the fact still remains that the concept of `jurisdiction' is employed in both indents.
The United Kingdom's objection would have substance only if this concept had a separate meaning in each of the indents. There are no obvious grounds to support such a hypothesis. Rather, it should be reiterated that the second indent clearly refers to the first indent inasmuch as it speaks of broadcasters which, `while not being under the jurisdiction of any Member State', make use of a particular frequency, satellite capacity or satellite up-link.
42 On that ground alone, the view espoused by the defendant cannot be accepted.
However, that still does not settle the question whether the Commission is correct in its view that the Member State under whose jurisdiction a broadcaster comes is the Member State in which that broadcaster is established.
The history of the legislation
43 In support of its view, the Commission also relies on the genesis of the television directive.
It points out that Article 1(1) of the draft directive which it submitted in 1986 (29) was worded as follows:
`Each Member State shall ensure that all internal broadcasts originating on its territory comply with its law applicable to broadcasts intended for the public in that Member State.'
It further refers to the grounds which it submitted in support of that draft. (30)
These feature, inter alia, the following comments on the provision just cited:
`43. This article establishes the principle that all broadcasting activity intended for reception within the territory of the Community must comply with the law of the country in which it originates, i.e. the Member State in which the originating body is established ...
44. This provision thus establishes the Member State's responsibility for ensuring that broadcasts made on its territory comply with the laws of that Member State and, consequently, with the standards laid down in the Directive.
In this way it provides the guarantee that enables, in the coordinated fields, the possibility of cumulative application of the laws of the countries of reception and of any checks by the authorities of such countries to be excluded.' (31)
44 This material shows that, in submitting its draft, the Commission proceeded on the basis that the programmes transmitted by a broadcaster should be subject to the law and control of the Member State in which that broadcaster was established.
It also demonstrates that the Commission took the view that the reference to the Member State in which those programmes have their origin gave adequate expression to that intention.
45 If this view is well founded, the Commission would indeed be able to derive from the history of the television directive's genesis a strong argument in support of its interpretation of Article 2(1).
As the Commission correctly argues, the recitals in the preamble to the directive contain formulations that focus on the origin or provenance of the programmes in question. (32)
These formulations could be regarded as proof that the legislature intended to retain the content of Article 1(1) as set out in the draft proposed by the Commission.
From the documents which the Commission has submitted, it would then be possible, contrary to the opinion expressed by the defendant, to conclude not only that the view of the Commission remained unchanged, but also that the Council adopted that view.
The fact that the television directive, in its final version, does not focus on the origin of the programmes in question, but rather on the Member State under whose jurisdiction the broadcaster comes, would not preclude this.
As the Commission has convincingly demonstrated, without being contradicted by the defendant, this amendment arose from the efforts to resolve a specific problem.
What was at issue was to avoid having the directive apply to specific Allied Forces radio broadcasters (33) in Berlin, which, although established in Germany, were not under the jurisdiction of that Member State.
46 The Commission's argument based on the genesis of the directive appears at first sight to be very plausible.
My view, however, is that its power to convince should not be overestimated.
In taking this view, I am moved essentially by the simple consideration that the formula used by the Commission in its draft is far from unambiguous.
As I have already pointed out, the concept of the Member State in which the programmes in question originate can be reconciled both with the view expressed by the Commission and with that expressed by the United Kingdom. (34) The fact that the Commission, in the grounds which it submitted with the proposal, interpreted that expression in a particular way cannot therefore be binding on the Court when it makes its own interpretation.
Furthermore, the question in any case arises as to why the Commission, in its draft, used the equivocal concept of the Member State of origin instead of simply referring to the Member State in which the broadcaster was established.
One might perhaps not be wrong to assume that the choice of a less precise and more ambiguous term was a conscious one, designed to find an acceptable solution in an issue of political controversy among the Member States.
That might also explain why the directive contains no definition of the concept of `jurisdiction'.
If this conjecture is correct, the Commission and the Council would have then intended to leave to the Court the resolution of this question which is central to the television directive.
47 Thus, the history of the legislation - at least in so far as I have been able to review it - also does not allow it safely to be inferred that the Commission is correct in its view that the Member State in which a broadcaster is established has `jurisdiction' over the latter within the meaning of Article 2(1) of the television directive.
The Council of Europe Convention
48 Both the Commission and the United Kingdom invoke, in support of their respective views on the question here at issue, the abovementioned Convention of the Council of Europe on Transfrontier Television.
49 The defendant points out that this Convention, to which all the Member States are signatories, was adopted only a few months prior to the television directive and that the latter refers expressly to the Convention.
While the Community is not itself a party to the Convention and is not directly bound by it, it would be nonsensical to assume that the Community intended to regulate the particular sector in a manner radically different from the solution adopted by the Member States in the Council of Europe Convention.
Otherwise, the Member States would be forced either to breach their Community-law obligations or to infringe the Convention.
The United Kingdom refers to the conclusions of the European Council in Rhodes on 2 and 3 December 1988, which stated that:
`The European Council requests the Council to speed up work on the "television without frontiers" Directive.
It noted that the Commission will adapt the proposal in the light of the Council of Europe Convention.' (35)
Since it is not clear from the television directive that it intended to be in conflict with the Convention in the area at present under discussion, Article 2(1) thereof, it is claimed, can and ought to be interpreted in the same way as the corresponding provision in the Convention.
Article 5(2) of the Convention, however, focuses primarily on the State from which a programme is broadcast.
50 Those submissions are unconvincing.
I incline rather to the view of the Commission that the rules set out in that Convention provide cogent arguments in support of the Commission's views on the interpretation of Article 2(1) of the television directive.
51 If the rule contained in Article 2(1) of the television directive is compared with what is contained in Article 5(2)(b) of the Convention, appreciable differences will be identified.
While the first indent of Article 2(1) of the directive focuses primarily on the broadcaster,
Article 5(2)(b)(i) and (ii) (as well as Article 5(2)(a)) of the Convention focus on television transmissions.
Only Article 5(2)(b)(iii), which evidently has a catch-all function, refers to the broadcaster.
It is thus clear that the criterion of the seat of the broadcaster corresponds in large measure to the criterion of establishment which, according to the Commission, is laid down in the first indent of Article 2(1) of the television directive.
As already mentioned, the first indent of that provision in the directive declares competence to be vested in that Member State under whose jurisdiction the broadcaster comes.
The second indent declares the criteria of the use of frequency, satellite capacity or up-link of a Member State to be determinant only in the cases where the broadcaster in question does not come under the jurisdiction of any Member State.
The Convention, in contrast, focuses primarily on these criteria in the case of programme transmission by satellite.
It is only where these criteria do not make it possible to determine jurisdiction that Article 5(2)(b)(iii) focuses in the alternative on the seat of the broadcaster.
52 These fundamental differences still exist even if a comparison is only drawn between the second indent of Article 2(1) of the directive and the provisions in Article 5(2)(b) of the Convention.
Examination of these differences will demonstrate that the directive primarily declares that Member State to be competent under whose jurisdiction the broadcaster comes.
In the alternative, the focus falls on the Member State from which the broadcasts are transmitted.
The Convention primarily declares that State to be competent from which broadcasts are transmitted.
In the alternative, the focus falls on the State in which the broadcaster has its seat.
The primary criterion under the Convention thus corresponds to the alternative criterion under the directive.
It would thus appear very reasonable to suppose that the alternative criterion under the Convention likewise corresponds to the primary criterion under the directive.
This view is also supported by the fact that apart from the criterion of establishment and seat respectively there is no obvious further objective criterion to which competence might meaningfully be attached.
It follows that the Member State mentioned in Article 2(1) of the directive as having jurisdiction over a broadcaster must indeed be intended to be the Member State in which that broadcaster is established.
53 In my view, this also finds confirmation in the submissions of the United Kingdom itself.
In its rejoinder, the defendant in fact stated that it did not see any difficulty in treating the criterion of seat or establishment as a residual basis for the jurisdiction of a State under both the Convention and the directive.
The defendant accordingly accepts that this is a relevant criterion also in the context of the television directive. Were one to go along with this view, it would however be necessary to assume that this criterion is nowhere mentioned expressly in the directive, since the criterion of `jurisdiction' mentioned in the first indent in Article 2(1) is intended to have a different content.
The defendant, however, was not in a position to reply satisfactorily to the question as to what other content this criterion might have.
Indeed, a meaningful interpretation can be made only if one shares the Commission's assumption that the Member State in which a broadcaster is established has jurisdiction over the latter.
54 As the defendant has itself emphasized, the television directive was adopted only a few months after the Council of Europe Convention.
It is also clear that the Community legislature took account of this Convention when adopting the directive. (36)
As the parties to the present case have noted in agreement, the draft directive was not, however, amended on the point here at issue with a view to bringing it into line with the rules adopted in the Convention. (37)
The only conclusion to be drawn from Article 2(1) of the directive is therefore that the Community legislature consciously decided in favour of a rule which departs appreciably from that laid down in the Council of Europe Convention.
55 As the Commission has correctly pointed out, the confirmation of substantive differences between the television directive, on the one hand, and the Convention, on the other, cannot be surprising, since the measures do not pursue the same objectives.
Whereas the television directive aims at abolishing obstacles to freedom of movement for services with a view to bringing about the Internal Market (38) and to that end lays down `the legal framework for the creation of a single audiovisual area', (39) the Council of Europe Convention has as its purpose `to facilitate ... the transfrontier transmission and the retransmission of television programme services'. (40)
The Commission has correctly pointed out that a provision such as, for instance, Article 16 of the Convention (`Advertising directed specifically at a single Party') would have been inappropriate in rules serving to bring about the Internal Market.
56 These differences between the television directive and the Council of Europe Convention also do not in any way give rise to the negative consequences claimed by the United Kingdom.
Potential conflict between these two legal measures is in any event excluded by virtue of the fact that Article 27(1) of the Convention expressly permits the Member States of the Community, in their mutual relations, to apply Community rules such as the television directive and not to apply the Convention except in so far `as there is no Community rule governing the particular subject concerned'.
With regard to the question regarding allocation of competence which is here at issue, however, Article 2(1) of the television directive does contain an express rule.
All of the arguments which the defendant bases on the Convention suffer from the fact that they either fail completely to take account of Article 27(1) of the Convention or - contrary to its clear wording - attempt to interpret it restrictively by seeking to confine its application to those cases in which a provision in the directive clearly deviates from a rule set out in the Convention.
That condition also would in any case - were it in issue - be satisfied here.
57 For that reason I take the view that the first indent of Article 2(1) of the television directive must be interpreted as meaning that the Member State under whose jurisdiction a broadcaster comes is the Member State in which that broadcaster is established.
Effectiveness of the selected criterion
58 Finally, it is still necessary to address a number of points regarding the effectiveness of the criterion advocated by each of the parties respectively. Both the Commission and the United Kingdom attempt to adduce evidence that the view supported by the other party would lead to results that would be inappropriate and incompatible with the directive.
They have for that purpose set out numerous examples and also referred to specific cases.
The Commission complains in particular in this regard that the application of two mutually contradictory criteria for determining the competent Member State would give rise to conflicts and lacunae.
It argues that the criterion favoured by the United Kingdom would also even result in legal uncertainty if it were applied by all Member States.
59 As has already been mentioned, the television directive is based on the idea that the television programmes to which it applies should in principle be subject only to the law of one single Member State. (41)
The criterion applicable within the context of Article 2(1) of the directive must for that reason be such as to make it possible unambiguously to determine the competent Member State.
It is equally evident that this criterion must be uniformly applied by all Member States.
60 The United Kingdom takes the view that the focus on the `establishment' of the broadcaster is in that regard inappropriate.
In its view, it follows from the case-law that an undertaking may be established in several Member States.
Thus, in addition to having its place of establishment in one Member State, a broadcaster may also have secondary establishments in other Member States.
The criterion espoused by the Commission is for that reason too imprecise and is not appropriate to ensure an unambiguous determination of the competent Member State.
In contrast, the defendant submits that the criterion which it advocates is easy to apply since it focuses solely on technical aspects.
Consequently, it corresponds to the underlying purpose of the television directive and Article 59 of the EC Treaty.
61 One ought not to overlook the fact that the interpretation advocated by the Commission may lead to difficulties.
The Commission also openly accepted this during the oral procedure.
One example should be sufficient to illustrate the point.
The Zweites Deutsche Fernsehen (the second German television channel) (hereinafter `ZDF'), for instance, has its seat in Germany. However, it also has offices outside Germany, such as - if I am not wrong - in Paris.
There can scarcely be any doubt that such offices are establishments for the purpose of Article 52 of the EC Treaty.
Hardly anyone, however, will on that ground feel inclined to assume that the ZDF is therefore under French jurisdiction pursuant to the first indent of Article 2(1) of the television directive.
It is for that reason quite clear that it cannot, for the purposes of the television directive, suffice simply to focus on the presence of an establishment.
Otherwise, there would be a danger that several Member States might be responsible for the same broadcaster, something which would run counter to the rationale of the directive.
62 The Commission attempted during the proceedings to address these difficulties by specifying and refining the criterion which it advocates.
It submitted, inter alia, that one might focus on where the central administration of the broadcaster is situated.
It stated in its reply that the issue is whether the broadcaster in question is in fact established in a Member State as a broadcaster.
In determining their competence in regard to television broadcasters, the Member States enjoy a certain degree of latitude.
However, the concepts or criteria which they employ must, the Commission argues, in any event fundamentally and substantively accord with the concept of establishment.
With regard to the problem of associated undertakings, the Commission has expressed the view that the central issue is whether these are or are not `recognizably different' television broadcasters.
It attempted to clarify this by alluding to the Canal Plus Group.
The parent company, Canal Plus, established in France, operates there as a television broadcaster and is under the jurisdiction of that State.
The associated undertakings established in other Member States, such as Canal Plus TVCF (Belgium), Canal Plus España (Spain) and Premiere (Germany), are, the Commission argues, television broadcasters that are recognizably different from the parent company and are consequently subject to the law of the respective Member States in which they are established.
63 It must be acknowledged in the defendant's favour that these arguments of the Commission are somewhat generalized and find no express support in the directive.
It appears to me, however, that these difficulties are based on the nature of the case itself.
If one concentrates on the criterion of `establishment', it becomes necessary to have an answer for the question how the competent Member State should be determined in the case of several places of establishment.
In my opinion, it follows with sufficient clarity from the Commission's arguments how it considers that this question ought to be answered.
In its view, competence should, in the case of several places of establishment, be vested in that Member State in which the broadcaster is established as such, that is to say, the Member State in which it performs the activities that are determinant for an undertaking of that kind.
I myself am in no doubt that meaningful and appropriate results can be achieved on this basis.
Indeed, it seems appropriate to declare responsible for a television broadcaster that Member State on whose territory that broadcaster performs its essential activities.
These include in particular - as formulated in the Commission's abovementioned proposal for a directive (42) - the decision on programme policy and the mixing and processing of the programme to be transmitted.
Even if a broadcaster has establishments in more than one Member State, it will probably always be possible to determine one Member State which, on the basis of these considerations, ought to be responsible for that broadcaster.
As the Commission has submitted, without being contradicted by the defendant, almost all the Member States, except the United Kingdom, follow the view taken by the Commission. (43)
In practice, this does not appear thus far to have given rise to any difficulties.
This also argues in favour of assuming that, notwithstanding the difficulties mentioned, the criterion based on the establishment of the broadcaster is an appropriate criterion for determining the competent Member State.
64 In contrast, the criterion advocated by the United Kingdom, according to which the focus should fall on the Member State from which a broadcast is actually transmitted, certainly has the prima facie advantage of being more easily manageable.
A legal assessment or even balancing is scarcely necessary in order to determine whether a broadcaster has used the frequency, satellite capacity or up-link of one Member State or of another Member State.
This consideration certainly argues in favour of giving preference to the criterion which the defendant advocates.
65 Account, however, needs to be taken of the fact that this criterion also has serious drawbacks.
The specific examples mentioned by the Commission in this connection emphatically demonstrate this.
66 The Commission first referred to the possibility that a broadcaster may transmit one and the same programme at different times via up-link connections situated in different Member States. (44)
It also outlined the case of a television broadcaster established in Member State A that uses up-links in Member States B, C and D for various sections of its programming.
According to the United Kingdom, several Member States would in each case be responsible for one television broadcaster.
Although it does not dispute this, the United Kingdom expresses the view that this is compatible with the television directive.
Regarding the first case, it argues that a particular transmission can only be subject to the control of a single Member State.
With regard to the second case, the United Kingdom contends that if the view taken by the Commission were to be accepted, it would be difficult to determine which Member State had sole responsibility.
In contrast, the criterion which it advocates constitutes a clear basis for the allocation of responsibility.
67 These remarks by the United Kingdom fail to strike me as convincing.
However, the defendant is correct to point out that the Commission has not established that the examples which it has outlined do in fact occur in practice.
In my opinion, in the light of the specific cases about to be discussed, there is no further need for comment - at least not for the moment - on these somewhat theoretical instances.
68 According to the information provided by the Commission, and which the defendant has not contested, the broadcaster FilmNet transmits its programmes via up-links in both the United Kingdom and Luxembourg.
According to the same information, ZDF uses for its programmes a terrestrial broadcasting facility in Germany and also an up-link in Luxembourg.
In both cases, consequently, the view taken by the United Kingdom would result in two Member States being responsible for one and the same television broadcaster and for the same transmissions.
69 The defendant acknowledges that its view, in order to avoid duplication of control, must proceed on the basis of an `implied concept' of a `primary point of transmission'. This, it contends, is in no way a new concept.
Under it, precedence is accorded to the place from which the terrestrial transmission is effected.
If there is no such transmission, a solution must be sought on the basis of international agreements.
70 In my opinion, this acknowledgement demonstrates that there is no basis to the defendant's claim that the criterion which it advocates allows the competent Member State to be determined simply and clearly.
Even the application of the criterion preferred by the United Kingdom can lead to difficult questions of demarcation.
As the United Kingdom is aware, the resolution of these questions would require international agreements.
If a television broadcaster established in Member State A transmits its programmes via up-links in Member States B and C, the argument supported by the defendant will be unable to clarify whether Member State B or Member State C should be responsible.
That, in my opinion, represents a decisive defect in the view expressed.
As I have already shown, the criterion advocated by the Commission also gives rise to difficulties in application. However, those difficulties can be remedied without recourse to further legal measures being necessary.
It follows that this criterion is also in practical terms superior to that espoused by the defendant.
71 Finally, it is necessary to consider the defendant's objection that the Commission's favoured criterion creates a danger of abuse.
If the focus were to fall on the place of establishment, it is argued, a broadcaster would need only to transfer its establishment to another Member State in order to avoid application of a particular Member State's provisions.
72 That objection is unfounded.
It must first be borne in mind that, under the Commission's interpretation, it is not sufficient for the founding of a Member State's responsibility that a television broadcaster has set up any kind of establishment - for instance, a simple office - in that Member State.
Rather, the focus must be on the Member State in which the undertaking in question is actually established as a broadcaster. (45)
The transfer of establishment, as thus understood, is consequently nowhere near as straightforward as the defendant appears to think.
Second, it must be pointed out that the Court does not prohibit Member States from taking action, under specified circumstances, against avoidance of their legislation by television broadcasters.
I would mention at this point only the judgment of 5 October 1994 in the TV10 case. (46) I would refer in this regard to my Opinion in that case (47) and to the corresponding views set out in the Opinion which I am delivering today in Case C-11/95. (48)
Finally and in particular, however, the view must be taken that the danger of abuse would be very much greater if the view advocated by the United Kingdom were to be followed. A television broadcaster transmitting via an up-link in Member State A could quite simply circumvent the provisions of that State by changing over to an up-link in Member State B.
73 It follows from what has just been said that the criterion advocated by the Commission for determining the competent Member State is also more appropriate inasmuch as it focuses on a relatively stable factor that cannot easily be altered.
A transfer of establishment in the above sense requires some trouble and effort; in contrast, a change of the Member State from which transmissions are effected is, in the present state of technology, possible in a short space of time without any great expense.
74 Both the Commission and the United Kingdom have also referred in this connection to the facts underlying Case C-327/93.
That case concerned a transmitter that broadcast its programmes from the Netherlands and subsequently from Denmark, but was, in the view of the Commission, established in the United Kingdom.
In so far as this view of the Commission might have been correct (and there is much in favour of such a finding), that case would in fact have provided a good example of the difficulties which could result from the view taken by the United Kingdom. However, it does not seem to me appropriate to examine that case here in greater detail. (49)
75 The interim result reached is therefore that the view taken by the Commission regarding the interpretation of Article 2(1) of the television directive is the correct one.
The Member State under whose jurisdiction a television broadcaster comes is that in which the broadcaster is established.
The connecting criteria mentioned in the second indent of that provision (the Member State whose frequency, satellite capacity or satellite up-link are used) are of relevance only to broadcasters not under the jurisdiction of a Member State. Section 43 of the Broadcasting Act 1990, which focuses, not on the establishment of the broadcaster, but exclusively on the place from which a programme is transmitted, the frequency used and other criteria, (50) is therefore contrary to Article 2(1) (and Article 3(2)) of the television directive.
Further breaches of Articles 2(1) and 3(2) of the television directive
76 The Commission accuses the United Kingdom of having breached the rules contained in Articles 2(1) and 3(2) of the television directive in three further respects. (51)
77 The Commission first of all complains that section 43 of the Broadcasting Act 1990 focuses on reception in the United Kingdom, or in the United Kingdom or another Member State, whereas Article 2(1) of the directive does not regard this as a criterion for determining the competent Member State.
78 In so far as the corresponding indications in section 43 - as the defendant submits - are intended only to serve to exclude its application to television programmes exclusively destined for reception in non-member countries, this would be in accordance with Article 2(3) of the directive and could not therefore be criticized.
However, it appears from the statements in the Commission's reply that it takes exception to the relevant criterion of reception in the United Kingdom, because the United Kingdom is responsible for all broadcasters under its jurisdiction, and not only those whose programmes are intended for general reception in the United Kingdom.
The complaint here raised is therefore linked either to the complaint already considered (and deemed to be well founded), to the effect that the United Kingdom failed to comply with the conclusive criteria for determining responsibility under Article 2(1) of the television directive, or to the complaint, still to be examined, that the defendant draws an unjustified distinction between DSS and NDSS.
I accordingly take the view that it is not necessary further to examine this complaint of the Commission.
79 Second, the Commission accuses the defendant of having failed to ensure that programmes from non-member countries that are intended for general reception in another Member State and in that regard use a frequency allocated to the United Kingdom comply with the law applicable to programmes intended for general reception in the United Kingdom.
The defendant argues that this is a hypothetical case and that it cannot be assumed that the United Kingdom would allow a broadcaster from a non-member country to use such a frequency without exercising control.
That, however, does not disprove the Commission's complaint.
Rather, the defendant is thereby indirectly conceding that such a case might be possible.
Even though it may involve an improbable case, the Commission's complaint therefore appears to me to be well founded.
80 In this connection, the greatest significance seems to me to attach to the third and final complaint raised by the Commission, to the effect that the distinction between DSS and NDSS constitutes a further breach of Article 2(1) of the television directive which follows directly from the distinction between the technical criteria referred to in section 43.
This is so because the Member States, according to the Commission, are under an obligation to ensure that all television programmes transmitted by broadcasters coming under their jurisdiction comply with the law that applies to programmes intended for general reception.
81 However, it is also not entirely clear in this regard what the scope of this complaint is.
The Commission complains in particular that section 44(3) of the Broadcasting Act 1990 declares applicable the provisions of section 16(2)(g) and (h), whereas section 45, applicable to NDSS, does not do so.
Since the provisions contained in section 16(2)(g) and (h) are designed to implement Articles 4 and 5 of the television directive, the complaint raised by the Commission may be understood as meaning that the defendant is being accused of having failed to ensure that NDSS comply with the requirements laid down in Articles 4 and 5 of the directive.
This is also the complaint which the French Republic has set out as the central point of its submissions.
82 However, both the Commission and the United Kingdom have concurred in declaring that the question whether the United Kingdom has met its obligations under Articles 4 and 5 of the television directive with regard to NDSS is the subject-matter of separate proceedings.
83 The complaint raised by the Commission in the present case would therefore appear to be largely formal in character.
It might therefore be formulated as follows: whereas DSS are already subject under legislation - in the form of section 44(3) of the Broadcasting Act 1990 - to the requirements laid down in section 16(2)(g) and (h) of the Act, this is not the case with regard to NDSS.
84 There can in my view be scarcely any doubt that this complaint is well founded.
The United Kingdom does not deny that NDSS are subject to a less stringent scheme than are DSS.
In justification, however, it relies on Article 3(1) of the television directive, which provides that Member States may, with regard to television broadcasters under their jurisdiction, lay down `more detailed or stricter rules in the areas covered by this Directive'. These stricter rules, it argues, need not be applied to all programmes.
That view is already questionable in view of the fact that Article 2(1) of the television directive requires Member States to ensure that all broadcasts transmitted by broadcasters under its jurisdiction comply with the law applicable to broadcasts intended for the public in that Member State.
In any event, however, it must be pointed out that under Article 3(2) of the television directive the Member States must at least ensure that the television broadcasters under their jurisdiction comply with the provisions of that directive.
Those provisions also include Articles 4 and 5, the transposition of which is effected by the rules set out in section 16(2)(g) and (h). The rule in section 45, however, precisely does not provide that those provisions are to apply to NDSS.
85 The United Kingdom, however, submits that it has met this obligation in so far as section 188 of the Broadcasting Act 1990 makes it possible to require NDSS to comply with Articles 4 and 5 of the directive.
That, however, does not alter the fact that the national provisions draw a distinction between broadcasters that are subject to those provisions of the directive and broadcasters that may become subject to those provisions. In my opinion, this formal discrimination is in itself contrary to Articles 2(1) and 3(2) of the television directive and the Commission's complaint is consequently well founded.
I might once again point out that the question whether the United Kingdom does
in fact ensure that NDSS comply with the provisions of Articles 4 and 5 of the television directive does not form the subject-matter of the present proceedings.
Breach of Article 2(2) of the television directive
86 The Commission also accuses the United Kingdom of having breached Article 2(2) of the television directive in so far as the definition contained in section 43 of the Broadcasting Act 1990 also covers television broadcasters coming under the jurisdiction of other Member States.
87 The soundness of this complaint follows necessarily from the findings made in regard to Article 2(1) of the directive.
Under section 43 of the Act, the United Kingdom claims to be responsible for all television broadcasters which transmit their programmes from the United Kingdom. This also covers broadcasters established in another Member State and consequently under the jurisdiction of that Member State. (52)
By so doing, the United Kingdom is exercising a second control, contrary to Article 2(2) of the television directive.
88 It might be pointed out once again that the wording of that provision does not preclude the interpretation here being advocated. (53)
The United Kingdom is thus wrong to argue that programmes of broadcasters which are established in other Member States but transmit their programmes from the United Kingdom are not `television broadcasts from other Member States'.
89 Finally, the Commission also contends that the United Kingdom has breached Article 2(2) of the directive with regard to licensable programme services, since these may contain television broadcasts originally transmitted by broadcasters coming under the jurisdiction of other Member States.
The defendant has acknowledged that the provisions in question (sections 46 and 47) of the Broadcasting Act 1990 could in theory be used to make the retransmission of complete cable television services from other Member States subject to a licensing obligation.
However, the defendant states that the ITC, mindful of the United Kingdom's obligations under the television directive, has in practice not made any use of this possibility.
Section 188 of the Act, moreover, provides the wherewithal to force it, if necessary, to act in a manner compatible with the directive.
90 To that extent also, then, it must be held that, under the wording of the national Act, a breach of Article 2(2) of the television directive is possible and special administrative measures are required in order to exclude this possibility.
In that regard also, therefore, the Commission's complaint appears to me to be well founded.
91 The action brought by the Commission is therefore - subject to the limitation introduced in the course of the proceedings with regard to local delivery services (54) - well founded in its entirety.
92 The decision on costs follows in accordance with Article 69(2) and (4) of the Court's Rules of Procedure.
C - Conclusion
93 I accordingly propose that the Court should hold that
(a) by adopting with respect to satellite broadcasts the criteria set forth in section 43 of the Broadcasting Act 1990 for determining which satellite broadcasters fall under the jurisdiction of the United Kingdom, and, within that jurisdiction, by applying a regime to non-domestic satellite services which differs from that applicable to domestic satellite services,
and
(b) by exercising control over broadcasts which are transmitted by a broadcaster that falls under the jurisdiction of another Member State when those broadcasts are transmitted by a non-domestic satellite service or conveyed to the public as a licensable programme service,
the United Kingdom has failed to fulfil its obligations under Article 2(1) and (2) and Article 3(2) of Council Directive 89/552/EEC of 3 October 1989 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities.
I also propose that the United Kingdom should be ordered to pay the costs of the proceedings, with the exception of the costs incurred by the French Republic, which should pay its own costs.
(1) - OJ 1989 L 298, p. 23.
(2) - The Court thus held as early as its judgment in Case 155/73 Sacchi [1974] ECR 409, point 6.
(3) - Judgment in Case 352/85 Bond van Adverteerders and Others v Netherlands State [1988] ECR 2085, paragraphs 14 to 17.
(4) - See the judgment in Case C-412/93 Leclerc-Siplec v TF1 Publicité and M6 Publicité [1995] ECR I-179, paragraph 28.
See also the judgment of the EFTA Court of 16 June 1995 in Joined Cases E-8/94 and E-9/94 Forbrukerombudet v Mattel Scandinavia and Lego Norge, paragraph 22.
(5) - Ninth to the twelfth recitals in the preamble to the television directive.
For the sake of clarity, I have added the appropriate number in square brackets.
(6) - 13th recital in the preamble to the television directive.
(7) - 14th and 15th recitals in the preamble to the television directive.
(8) - As Advocate General Jacobs has already stated in his Opinion of 24 November 1994 in Case C-412/93 Leclerc-Siplec v TF1 Publicité and M6 Publicité [1995] ECR I-182, footnote 49, the English version of Article 3(1) contains a mistranslation (according to that version, the Member States have the power to require television broadcasters under their jurisdiction to lay down more detailed or stricter rules, whereas the other language versions demonstrate that it is the Member States which have the power to lay down such provisions).
(9) - 20th recital in the preamble to the television directive.
(10) - See the 24th recital in the preamble to the television directive.
(11) - This term is defined in Article 6 of the directive.
(12) - The French and English texts of this Convention, along with a German translation, are published in the Bundesgesetzblatt (Federal Official Journal) II 1994, p. 639.
(13) - This recital is worded as follows: `... the Council of Europe has adopted the European Convention on Transfrontier Television'.
(14) - Broadcasting Act 1990 of 1 November 1990.
As is clear from section 2(1)(a) of the Broadcasting Act 1990, this covers all broadcasters other than the BBC and the Welsh Authority (responsible for Wales) (with regard to the latter, see section 56 et seq. of the Act).
(15) - Broadcasting (Foreign Satellite Programmes) (Specified Countries) Order 1991 (S.I. 1991 No 2124).
(16) - See the 12th recital in the preamble to the television directive.
(17) - I rely in this regard on the terminology of the television directive (see the 12th and 14th recitals in the preamble).
Surprisingly, the German version of the 15th recital uses the term `Sendestaat' [State of transmission], whereas other language versions (such as the French and English) refer here also to `originating Member State'.
(18) - This issue lies at the centre of the dispute in abovementioned Case C-11/95.
(19) - See the 12th recital: `Ursprung' (German version). See also in the 14th recital: `Ursprungsmitgliedstaat' (German version), `originating Member State' (English version), `État membre d'origine' (French version), `Estado miembro de origen' (Spanish version), `Estado-membro de origem' (Portuguese version) and `Stato membro d'origine' (Italian version).
With the exception of the German version, these expressions are also used in the 15th recital.
(20) - See the 12th recital: `Member State from which they emanate' (English version), `État membre dont elles émanent' (French version), `Estado-membro de onde provêm' (Portuguese version) and `Estado miembro de que emanen' (Spanish version).
(21) - Thus, the term `Sendestaat' in the German version of the 15th recital, the Dutch version of the 12th (`Lid-Staat van waaruit zij worden uitgezonden'), 14th and 15th recitals (`Lid-Staat van uitzending' in each), and the phrase `dello Stato membro da cui sono emesse' in the Italian version of the 12th recital.
(22) - For instance, it is noticeable that the German version of the 14th recital uses what is in my opinion the appropriate term `Ursprungsmitgliedstaat', whereas there is a reference to the `Sendestaat' in the 15th recital, although all of the other language versions which I have compared demonstrate that what is meant here is an (originating) Member State.
(23) - OJ 1995 C 185, p. 4.
(24) - The proposed new version reads as follows: `The broadcasters under the jurisdiction of a Member State are those established in the territory of that Member State, in which they must have a fixed establishment and actually pursue an economic activity' (Article 2(2) under the new numbering).
The seventh and ninth recitals in the preamble to the proposed directive should be read in conjunction with this. Those recitals provide that the place of establishment of an undertaking should be `the principal criterion determining ... jurisdiction', and that this may be determined `by a series of practical criteria', such as `the location of the head office of the provider of services, the place where decisions on programming policy are usually taken, the place where the programme to be broadcast to the public is finally mixed and processed, provided that a significant proportion of the workforce required for the pursuit of the television broadcasting activity is located in the same Member State'.
(25) - See the seventh recital in the preamble to the proposed directive.
(26) - In this connection, see points 2 and 3 above.
(27) - Judgment in Case 205/84 Commission v Germany [1986] ECR 3755, paragraph 23.
(28) - See point 58 et seq. below.
(29) - OJ 1986 C 179, p. 4.
(30) - Bulletin of the EC, Supplement 5/86, p. 5 et seq.
(31) - Op. cit. (footnote 30), pp. 12 and 13.
(32) - See point 33 above.
(33) - It should be remembered that the draft originally submitted by the Commission concerned not only television but also radio.
(34) - See point 33 above.
(35) - Bulletin of the EC, No 12/1988, p. 8 et seq. (at p. 10).
(36) - See point 49 above.
(37) - As we have already seen, the amendment to the wording of the provision in question, already discussed, has nothing to do with the Convention (see point 45 above).
(38) - See the second recital in the preamble to the television directive.
(39) - See the 12th recital in the preamble to Council Directive 93/83/EEC of 27 September 1993 on the coordination of certain rules concerning copyright and rights related to copyright applicable to satellite broadcasting and cable retransmission (OJ 1993 L 248, p. 15).
(40) - Article 1 of the Convention.
(41) - See point 26 above.
(42) - See footnotes 23 and 24.
(43) - According to the information given by the Commission during the oral procedure, Finland is the only Member State in which this is not the case.
(44) - For example, a broadcaster might broadcast one part of its programmes (such as morning programmes) from one Member State and the other part (for instance, the evening programmes) from another Member State.
(45) - See point 62 above.
(46) - Case C-23/93 TV10 v Commissariaat voor de Media [1994] ECR I-4795.
(47) - Opinion delivered on 16 June 1994, [1994] ECR I-4797.
(48) - Point 72 et seq.
(49) - Case C-327/93 has in any event been removed from the register by order of 29 March 1996 of the President of the Court following the national court's withdrawal of the questions which it had submitted.
(50) - See point 15 above.
(51) - See point 28 et seq. above.
(52) - During the oral procedure, the Commission cited in this connection the example of a television broadcaster established in Austria to which the United Kingdom has recently granted a NDSS licence.
(53) - See point 33 above.
(54) - See points 24 and 25.