62017CJ0622_RES
Case C‑622/17
Baltic Media Alliance Ltd
v
Lietuvos radijo ir televizijos komisija
(Request for a preliminary ruling from the Vilniaus apygardos administracinis teismas)
Judgment of the Court (Second Chamber), 4 July 2019
(Reference for a preliminary ruling — Freedom to provide services — Directive 2010/13/EU — Audiovisual media services — Television broadcasting — Article 3(1) and (2) — Freedom of reception and retransmission — Incitement to hatred on grounds of nationality — Measures taken by the receiving Member State — Temporary obligation for media service providers and other persons providing services relating to the distribution of television channels or programmes via the internet to distribute or retransmit a television channel in the territory of that Member State only in pay-to-view packages)
Questions referred for a preliminary ruling — Admissibility — Limits — Clearly irrelevant questions and hypothetical questions put in a context not permitting a useful answer
(Art. 267 TFEU)
(see paragraphs 24-27, 31)
Freedom to provide services — Television broadcasting activities — Directive 2010/13 — Scope — Media service providers under the jurisdiction of a Member State — Concept — Criteria — Editorial responsibility — Establishment — Determination by the national court
(European Parliament and Council Directive 2010/13, recital 35 and Arts 1(1)(c) and (d) and 2(2)(a) and (3)(a) to (c))
(see paragraphs 37-41, 43, 45-48, 52)
Freedom to provide services — Television broadcasting activities — Directive 2010/13 — Prohibition of restrictions on the retransmission of audiovisual media services from other Member States — Scope — Public policy measure imposing an obligation to temporarily distribute or retransmit a television channel from another Member State only in pay-to-view packages — Not included
(European Parliament and Council Directive 2010/13, Art. 3(1) and (2); Council Directive 89/552, Art. 2a(1) and (2))
(see paragraphs 70-77, 84, operative part)
Résumé
A Member State may, on grounds of public policy, such as combating the incitement to hatred, impose a requirement to temporarily distribute or retransmit a television channel from another Member State only in pay-to-view packages
In its judgment of 4 July 2019, Baltic Media Alliance (C‑622/17), the Court of Justice held that a measure imposing, on grounds of public policy, the obligation to temporarily distribute or retransmit a television channel from another Member State only in pay-to-view packages is not covered by Article 3 of Directive 2010/13. (
1
) That provision requires Member States to ensure freedom of reception and not to restrict retransmissions in their territory of television programmes from other Member States for reasons which fall within the fields coordinated by that directive, which include measures against incitement to hatred.
NTV Mir Lithuania is a television channel aimed at the Lithuanian public and whose programmes are mainly in Russian. The Lithuanian Radio and Television Commission had adopted a decision requiring media service providers to distribute or retransmit that channel in Lithuania only in pay-to-view packages for 12 months. That decision had been adopted on the ground that one of that channel’s programmes contained false information which incited hostility and hatred towards the Baltic countries on grounds of nationality. Baltic Media Alliance, a company registered in the United Kingdom and holder of a British licence to broadcast NTV Mir Lithuania, considered that that decision had been adopted in breach of Directive 2010/13, as it restricted the retransmission of a television channel from another Member State.
As regards the prohibition of restrictions on retransmission laid down in Article 3 of Directive 2010/13, the Court first pointed out, on the basis of the context, the objectives and the origin of that prohibition, that the term ‘restriction’ has, in the context of that directive, a specific meaning that is narrower than the concept of restriction used in Article 56 TFEU. It does not refer to all restrictions, by the receiving Member State, on the freedom of reception and retransmission. Thus, Directive 2010/13 does not in principle preclude the application of national rules with the general aim of pursuing an objective of general interest provided that they do not involve secondary control of programmes in addition to that which the broadcasting Member State is required to carry out.
Clarifying its earlier case-law, (
2
) the Court went on to find that a national measure which, in general, pursues a public policy objective and regulates the methods of distribution of a television channel to consumers of the receiving Member State does not constitute a restriction within the meaning of Article 3 of Directive 2010/13, where those rules do not prevent the retransmission as such of that channel. Such a measure does not involve secondary control of the programme.
In light of those findings, the Court concluded that a measure such as that at issue in the main proceedings is not covered by Article 3 of Directive 2010/13. First, the decision in question pursues an objective of general interest in so far as it contributes to combating the distribution of information discrediting the Lithuanian State and aims to protect the security of the Lithuanian information space and to guarantee and preserve the public interest in being correctly informed. Second, it does not restrict the retransmission as such in Lithuania of television programmes from another Member State, because the television channel in question can still be distributed legally in that territory and Lithuanian consumers can still view it if they subscribe to a pay-to-view package.
(
1
)	Directive 2010/13/EU of the European Parliament and of the Council of 10 March 2010 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services (Audiovisual Media Services Directive) (OJ 2010 L 95, p. 1).
(
2
)	Judgment of 22 September 2011, Mesopotamia Broadcast and Roj TV (C‑244/10 and C‑245/10, EU:C:2011:607).