OPINION OF ADVOCATE GENERAL

SAUGMANDSGAARD ØE

delivered on 28 February 2019 ( 1 )

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 (Vilnius Regional Administrative Court, Lithuania))

(Reference for a preliminary ruling — Freedom to provide services — Directive 2010/13/EU — Audiovisual media services — Television broadcasting — Article 1(1)(c) and (d) — ‘Editorial responsibility’ and ‘media service provider’ — Television channel from a Member State — Article 3(1) and (2) — Freedom of reception and retransmission — Incitement to hatred — Measures taken by the receiving Member State — Temporary obligation for operators distributing television channels to consumers in that State to distribute that channel only in pay-to-view packages — Compatibility with EU law)

I. Introduction

1. By this request for a preliminary ruling, the Vilniaus apygardos administracinis teismas (Vilnius Regional Administrative Court, Lithuania) has referred to the Court two questions on the interpretation of Directive 2010/13/EU, known as the ‘Audiovisual Media Services Directive’. ( 2 )

2. This request has been made in proceedings between Baltic Media Alliance Ltd (‘BMA’) and Lietuvos radijo ir televizijos komisija (Radio and Television Commission of Lithuania, ‘the LRTK’) concerning a decision by that authority imposing a temporary obligation to distribute the channel NTV Mir Lithuania only in pay-to-view packages. That decision, now withdrawn, was adopted after information inciting hatred based on nationality had been found in a programme on that channel.

3. The referring court asks whether the decision in question is compatible with Article 3(1) and (2) of Directive 2010/13. In accordance with that provision, the Member State receiving a television broadcast from another Member State may restrict, for a reason such as incitement to hatred, the retransmission of that broadcast only under specific conditions. However, the Lithuanian legislature transposed that provision in the sense that the LRTK did not have to apply those conditions when imposing the obligation to distribute a particular channel only in pay-to-view packages. Therefore, the LRTK did not comply with those conditions in the case in the main proceedings.

4. In this Opinion I shall explain why, in my view, a national measure of that kind, since it concerns how a television channel is to be distributed and does not have the effect of restricting the reception and retransmission as such of that channel, does not fall within the scope of Article 3(1) and (2) of Directive 2010/13.

II. Legal framework

A. Directive 2010/13

5. Article 3(1) and (2) of Directive 2010/13 provides: ‘1. Member States shall ensure freedom of reception and shall not restrict retransmissions on their territory of audiovisual media services from other Member States for reasons which fall within the fields coordinated by this Directive. 2. In respect of television broadcasting, Member States may provisionally derogate from paragraph 1 if the following conditions are fulfilled: (a) a television broadcast coming from another Member State manifestly, seriously and gravely infringes Article 27(1) or (2) and/or Article 6; (b) during the previous 12 months, the broadcaster has infringed the provision(s) referred to in point (a) 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 the measures it intends to take should any such infringement occur again; (d) consultations with the transmitting Member 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, within 2 months following notification of the measures taken by the Member State, take a decision on whether the measures are compatible with Union law. If it decides that they are not, the Member State will be required to put an end to the measures in question as a matter of urgency.’

6. In accordance with Article 6 of that directive, Member States are required to ensure by appropriate means that audiovisual media services provided by media service providers under their jurisdiction do not contain any incitement to hatred based on race, sex, religion or nationality.

B. Lithuanian law

7. Article 19(1)(3) of the Lietuvos Respublikos visuomenės informavimo įstatymas (Lithuanian Law on the provision of information to the public) of 2 July 2006 (Valstybės žinios, 2006-07-27, Nr. 82-3254) (‘the Law on information for the public’) transposes Article 6 of Directive 2010/13. In the version applicable to the dispute in the main proceedings, under that provision: ‘It is prohibited to distribute in the media information … (3) which consists in war propaganda, incites war or hatred, ridicule or contempt, which incites discrimination, violence or harsh physical treatment of a group of persons or a person belonging to that group on grounds of age, sex, sexual orientation, ethnic origin, race, nationality, citizenship, language, origin, social status, belief, convictions, views or religion; …’

8. Article 33(11) and (12) of that law, in the version applicable to the dispute in the main proceedings, provides: ‘11. Bodies that retransmit television channels and other persons providing Lithuanian consumers with a service relating to the distribution on the internet of television channels and/or programmes composed of packages of channels which are retransmitted and/or distributed via the internet must comply with the rules adopted by the [LRTK] regarding the composition of packages and ensure the right of consumers to impartial information, a diversity of opinions, cultures and languages and the adequate protection of minors from the detrimental effects of public information. For a period of 12 months following the adoption of the decision referred to in paragraph 12(1) of this article, television channels on which information falling under the prohibition laid down in Article 19(1)(3) of the [Law on information for the public] may be retransmitted or distributed on the internet only in pay-to-view packages, in which case those packages must not be subject to subsidisation, support or concessions of any kind, and their price may not be lower than the costs incurred by the service provider for the acquisition, retransmission and/or distribution via the internet of the channels which make up those packages. 12. Where the [LRTK] establishes that, on a television channel retransmitted and/or distributed via the internet from Member States of the European Union, States of the European Economic Area and other European States that have ratified the Convention on Transfrontier Television of the Council of Europe or in programmes by that channel, information falling under the prohibition laid down in Article 19(1)(1), (2) and (3) of the [Law on information for the public] has been published, distributed and disseminated: (1) it shall adopt a decision to the effect that the channel in question may be distributed only in pay-to-view packages and shall inform television broadcasters and other persons providing Lithuanian consumers with a service relating to the distribution on the internet of television channels or programmes accordingly; (2) it shall adopt without delay the measures provided for in Article 341 of that law in order to ensure that the distribution of television channels and/or programmes complies with the requirements of that law. …’

9. Article 3(1) and (2) of Directive 2010/13 was transposed by Article 341(1) and (3) of the Law on information for the public. Paragraph 1 of the latter article provides that freedom of reception of audiovisual media services from, in particular, the Member States is to be guaranteed in the Republic of Lithuania. Paragraph 3 of that article provides that that freedom may be ‘temporarily suspended’ in cases where four conditions corresponding to those laid down in Article 3(2) are fulfilled.

III. The dispute in the main proceedings, the questions referred for a preliminary ruling and the procedure before the Court

10. BMA, a company registered in the United Kingdom, holds a licence which was granted by the competent telecommunications authority of that Member State, namely the Office of Communications (‘Ofcom’), to broadcast the television channel NTV Mir Lithuania.

11. On 18 May 2016 the LRTK adopted a decision in accordance with Article 33(11) and (12)(1) of the Law on information for the public which required, for a period of 12 months from the entry into force of that decision, bodies retransmitting television channels by cable and other persons providing Lithuanian consumers with a service relating to the distribution on the Internet of such channels to distribute the channel NTV Mir Lithuania only in pay-to-view packages (or, if such packages were not offered, in return for an additional fee which could not be included in the price of the basic package). That decision was based on the fact that a programme broadcast on 15 April 2016 on the channel in question, entitled ‘Ypatingas įvykis. Tyrimas’ (Special Event: Investigation), contained information that incited hatred based on nationality, prohibited under Article 19(1)(3) of that law.

12. On 22 June 2016 the LRTK adopted a new decision which amended its initial decision. That authority removed the obligation to distribute the channel NTV Mir Lithuania only in pay-to-view packages and decided to initiate the procedure for the temporary suspension of that channel, as provided for in Article 341(3) of the Law on information for the public. In that connection, that authority notified BMA of the infringements identified in its initial decision and the measures which it intended to take should any such infringement occur again. The LRTK also notified Ofcom of the infringements in question.

13. On the same day BMA brought an action before the Vilniaus apygardos administracinis teismas (Vilnius Regional Administrative Court) seeking the annulment of the decision of the LRTK of 18 May 2016. In that connection, BMA submitted, inter alia, that that decision had been adopted in breach of Article 3(2) of Directive 2010/13. According to BMA, the decision at issue restricted the retransmission of a television channel from another Member State. The grounds for that restriction and the procedure followed to adopt that decision should therefore have been in accordance with that provision. However, that was not the case.

14. In those circumstances, the Vilniaus apygardos administracinis teismas (Vilnius Regional Administrative Court) decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling: ‘(1) Does Article 3(1) and (2) of Directive [2010/13] cover only cases in which a receiving Member State seeks to suspend television broadcasting and/or retransmission, or does it also cover other measures taken by a receiving Member State with a view to restricting in some other way the freedom of reception of programmes and their transmission? (2) Must recital 8 and Article 3(1) and (2) of Directive [2010/13] be interpreted as prohibiting receiving Member States, after they have established that material referred to in Article 6 of that directive was published, transmitted for distribution and distributed in a television programme retransmitted and/or distributed via the internet from a Member State of the European Union, from taking, without the conditions set out in Article 3(2) of that directive having been fulfilled, a decision such as that provided for in Article 33(11) and 33(12)(1) of the [Law on information for the public], that is to say, a decision imposing an obligation on broadcasters operating in the territory of the receiving Member State and other persons providing services relating to distribution of television programmes via the internet to ensure, on a provisional basis, that the television programme may be retransmitted and/or distributed via the internet only in television programme packages that are available for an additional fee?’

15. The order for reference, dated 27 October 2017, was lodged at the Court Registry on 3 November 2017. BMA, the LRTK, the Lithuanian Government and the European Commission lodged written observations before the Court. The same parties, with the exception of the LRTK, were represented at the hearing held on 28 November 2018.

IV. Analysis

A. Admissibility

16. The LRTK and the Lithuanian Government challenge the admissibility of the questions referred for a preliminary ruling and put forward two arguments in that regard.

17. First, they claim that those questions are hypothetical. Since, on the same day as that on which BMA brought proceedings before the referring court, the LRTK amended the decision of 18 May 2016, removed the obligation to distribute the channel NTV Mir Lithuania only in pay-to-view packages and initiated a suspension procedure pursuant to Article 3(2) of Directive 2010/13, the dispute in the main proceedings became devoid of purpose. BMA no longer had an interest in bringing proceedings before that court since its action was not liable, if successful, to procure an advantage for it.

18. In that regard, I would point out that, in the procedure laid down by Article 267 TFEU, questions on the interpretation of EU law referred by a national court in the factual and legislative context which that court is responsible for defining, and the accuracy of which is not a matter for the Court to determine, enjoy a presumption of relevance. ( 3 ) In the present case, in my view, the argument put forward by the LRTK and the Lithuanian Government and summarised in the point above does not call that presumption into question.

19. In the order for reference, the national court stated that, in its view, the dispute in the main proceedings continued to have a purpose. Irrespective of the fact that the decision at issue had been amended, that court had to determine whether, by that decision, the LRTK had infringed BMA’s rights and whether that decision was lawful at the time of its adoption. An answer from the Court is therefore clearly necessary.

20. Moreover, it is true that the Court itself has sometimes held, in certain cases, that the dispute before the national court had become devoid of purpose and has considered the questions referred to it for a preliminary ruling to be inadmissible on that ground. However, in those cases, the claims of the applicant in the main proceedings had been satisfied in full after its action had been brought before the national court. ( 4 )

21. By contrast, in the case in the main proceedings, the LRTK did not grant BMA’s request. As BMA claims, the LRTK, in amending its initial decision, did not acknowledge the alleged unlawfulness of that decision and did not eliminate the effects it had already produced. The obligation restricting the distribution of the channel NTV Mir Lithuania was in force from 23 May 2016 to 27 June 2016 and, during that period, had potentially damaging effects for BMA. ( 5 )

22. BMA therefore still has an interest in bringing proceedings to determine whether the decision at issue was unlawful when it was adopted. If the national court were to annul that decision, this could serve as the basis for a future action seeking compensation for the losses it claims to have sustained. ( 6 ) As it claims, such a finding of unlawfulness would, moreover, prevent the LRTK from adopting a similar decision against it in the future. ( 7 )

23. Secondly, the Lithuanian Government submits that a decision creating the obligation to distribute a television channel only in pay-to-view packages does not fall within the scope of Article 3(1) and (2) of Directive 2010/13. Consequently, the interpretation of EU law that is sought is not necessary in order to resolve the dispute in the main proceedings.

24. In this regard, it suffices to state that that argument falls within the scope of the substance of the national court’s questions. It is therefore not relevant for determining whether they are admissible. ( 8 )

25. In the light of all of the foregoing, I consider that the questions referred for a preliminary ruling in the present case are admissible.

B. Substance

1. Preliminary remarks

26. Like Directive 89/552/EEC ( 9 ) which it replaced, Directive 2010/13 seeks to put into place an ‘area without internal frontiers for audiovisual media services’. ( 10 ) For that purpose, that directive contains two complementary sets of measures.

27. First, it provides, in certain matters (the ‘coordinated fields’), basic rules which apply to all audiovisual media service providers established in the Member States and aim to protect certain objectives of general interest as well as the creation of audiovisual content in the European Union. Those basic rules include Article 6 of Directive 2010/13, which prohibits the broadcast of programmes inciting hatred based on race, sex, religion or nationality. ( 11 )

28. Secondly, Directive 2010/13 lays down the ‘country of origin’ principle. In accordance with Article 2(1) of that directive, a particular audiovisual media service provider comes under the jurisdiction of one Member State and must, in principle, comply with the rules of that Member State only. ( 12 ) It is for that Member State to monitor compliance, by the provider concerned, with its law and the basic rules provided for in that directive. At the same time, the other Member States are in principle required, under Article 3(1) of that directive, to ensure freedom of reception and not to restrict retransmissions in their territory (obligations which I shall refer to, together, as the ‘freedom of reception and retransmission’) of services authorised by the first State for reasons which fall within the coordinated fields — including, I recall, the prohibition of incitement to hatred. Article 3(2) of that directive nonetheless provides for the possibility of derogating from that freedom, subject to substantive and procedural conditions being satisfied, to which I shall return below. ( 13 )

29. Article 3(1) and (2) of Directive 2010/13 was transposed by the Lithuanian legislature in Article 341(1) and (3) of the Law on information for the public. This provision thus lays down the obligation on the Lithuanian authority responsible for regulating the audiovisual sector, the LRTK, where it finds that a television programme contains information pertaining inter alia to incitement to hatred, to initiate a procedure for the suspension of the reception or retransmission of the channel concerned, in accordance with conditions corresponding to those laid down in Article 3(2) of that directive.

30. Nonetheless, Article 33(11) and (12)(1) of that law also requires the LRTK, in the event of a programme inciting hatred being broadcast, to adopt immediately (and irrespective of those conditions) a measure imposing the obligation, for a period of 12 months, for the channel concerned to be distributed or retransmitted via the internet only in pay-to-view packages. ( 14 ) According to the explanations provided by the Lithuanian Government, that interim measure is intended to provide a swift response in the event of prohibited information being distributed, pending the initiation and conclusion of a suspension procedure.

31. By its decision of 18 May 2016, the LRTK adopted such a measure against the channel NTV Mir Lithuania on the ground that one of the programmes broadcast on that channel incited hatred based on nationality. ( 15 ) The present case does not concern the substance of that decision. The referring court does not challenge inter alia the fact that the content of that programme came under incitement to hatred within the meaning of Article 6 of Directive 2010/13. ( 16 )

32. By contrast, by its first question, that court asks whether the conditions laid down in Article 3(2) of Directive 2010/13 should have been fulfilled before the LRTK adopted the decision at issue. If so, by its second question, it seeks to establish the consequences that must be drawn as to the lawfulness of that decision.

33. The questions in this case therefore ask the Court to clarify the measures covered by Article 3(1) and (2) of Directive 2010/13. Those questions are based on the premiss that the channel NTV Mir Lithuania is an audiovisual media service provided by BMA which therefore falls within the scope of that provision. That premiss was challenged before the Court by the LRTK and the Lithuanian Government. Their objection raises the issue of media services enjoying the freedom of reception and retransmission provided for in Article 3(1) of that directive. In order to give the referring court all of the answers which are of use in resolving the dispute in the main proceedings, I shall return, first, to that issue (2). I shall then turn to the first question and explain why, in my view, a measure such as that provided for in Article 33(11) and (12)(1) of the Law on information for the public does not fall within the scope of Article 3(1) and (2) of Directive 2010/13 (3). Lastly, and in the alternative, I shall examine the second question and set out the reasons why, even if that measure did fall within the scope of Article 3(1) and (2) of that directive, it cannot be adopted without the conditions set out in that provision having been fulfilled (4).

2. The services benefiting from the freedom of reception and retransmission provided for in Article 3(1) of Directive 2010/13

34. Two preliminary questions have been argued before the Court in relation to the issue of the audiovisual media services enjoying the freedom of reception and retransmission: first, the question of whether a channel such as NTV Mir Lithuania enjoys that freedom even though, according to the LRTK and the Lithuanian Government, that channel’s content is produced in a third country (a); and secondly, whether that channel falls within the scope of that freedom even though it is directed exclusively towards the territory of the Republic of Lithuania (b).

(a) The fact that a television channel’s content essentially comes from a third country

35. Audiovisual media services, including television broadcasts, benefit from the principle of freedom of reception and retransmission in Article 3(1) of Directive 2010/13 only in so far as they fall within the territorial scope of that directive. In that regard, they must not only be broadcast in at least one Member State, ( 17 ) but they must also ‘come from’ a Member State. Otherwise, the receiving Member State is, in principle, free to regulate the reception and transmission of those services on its territory. ( 18 )

36. In accordance with Article 2(1) of that directive, an audiovisual media service ‘comes from’ a Member State if the provider of that service (with regard to a television broadcast, that directive uses the term ‘broadcaster’) ( 19 )comes under the jurisdiction of one of them. Under Article 2(2) of that directive, that is the case (1) if the broadcaster in question is established in the territory of a Member State (as provided for in paragraph 3 of that article) or (2) if that broadcaster uses satellite capacity appertaining to a Member State or an up-link ( 20 ) situated in the territory of one of them (pursuant to paragraph 4 of that article).

37. In the present case, the Lithuanian Government submits, in essence, that the broadcaster which provides the programmes for the channel NTV Mir Lithuania is an operator established in Russia, while BMA (which, I would point out again, is based in the United Kingdom) merely distributes that channel in Lithuania. In that regard, I note that it is widely known that NTV is a Russian channel provided by Oao Telekompania NTV and that NTV Mir (NTV World) is the international version of that channel which is transmitted by satellite. In that context, NTV Mir Lithuania is, according to the information provided by BMA at the hearing, the version of that channel which is directed towards the Lithuanian public. ( 21 ) I therefore understand the argument put forward by the Lithuanian Government as meaning that the main content of the channel NTV Mir Lithuania broadcast by BMA is a retransmission, without modification, of the channel NTV.

38. Certain points must be reiterated in order properly to understand the implications of that argument. EU legislation draws a distinction between the provision of audiovisual content and the transmission of that content. In that connection, operators which only transmit content, for example by broadcasting it to the public, do not provide ‘audiovisual media services’ within the meaning of Directive 2010/13 but ‘electronic communications services’ falling under, inter alia, Directive 2002/21/EC. ( 22 ) In accordance with the definitions given in those two directives, ( 23 ) the decisive criterion for distinguishing between audiovisual media service providers and operators which merely offer a distribution service is whether or not they have ‘editorial responsibility’ for the content distributed. Under Article 1(1)(c) of Directive 2010/13, in television broadcasting, that concept is ‘the exercise of effective control both over the selection of the programmes and over their organisation … in a chronological schedule’. In short, for the purposes of applying the rules of Directive 2010/13, the question of whether BMA exercises such control over the channel NTV Mir Lithuania or, on the contrary, merely broadcasts that content, is decisive. ( 24 )

39. In that regard, the Lithuanian Government claimed at the hearing that the editorial decisions regarding the programmes on the channel NTV Mir Lithuania are taken in Russia. Those programmes are created in that third country. BMA has no influence over their content. BMA submitted, for its part, that the decisions as to the content of NTV Mir Lithuania are made in the United Kingdom. BMA does not merely distribute that channel, but is also its author, as can also be seen from the licence issued to it by Ofcom.

40. The question as to who has editorial responsibility for the channel at issue is a factual issue which is for the referring court alone to clarify if need be. The fact that Ofcom issued BMA with a licence would tend to indicate that it is BMA. Nevertheless, in my view, that licence cannot be decisive. That court should still be able to verify whether the conditions for applying Directive 2010/13 are satisfied. ( 25 ) This is a huge task. The definition of editorial responsibility, set out above, is particularly vague and, to my knowledge, the Court has never ruled on that concept. I therefore consider it useful to provide some relevant guidance as to its interpretation.

41. In that regard, it is clear from that definition that an operator has editorial responsibility for a television channel where he exercises ‘effective control’ which, first, concerns both the ‘selection’ of the programmes on that channel (thus, according to the usual meaning of that term, the choice whether or not to include a particular programme) and the ‘organisation’ of those programmes in the chronological schedule of that channel. That control must therefore relate to the content of the channel, taken as a whole, and not each of its programmes, taken individually. The fact that, in some cases, BMA may not produce the programmes broadcast on the channel NTV Mir Lithuania is therefore not decisive in that context.

42. As regards, next, the nature of that ‘effective control’, I note that Directive 2010/13 provides no guidance. Recital 25 of that directive merely states that Member States may further specify that concept in their transposing legislation. Nevertheless, in my view, the application of the country of origin principle requires that one Member State which has jurisdiction must be determined for each audiovisual media provider and, therefore, where possible, a single operator which has editorial responsibility over a particular content. In that context, leaving it to the Member States to clarify that concept would create a risk of — in particular positive — conflicts of jurisdiction. ( 26 ) In the absence of an express reference to the law of the Member States in Article 1(1)(c) of that directive, and in order to ensure the uniform application of that directive in the European Union, I take the view that ‘effective control’ must be interpreted autonomously.

43. In the light of the context and the objectives of Directive 2010/13 (which, I reiterate, are to regulate providers of audiovisual content, as opposed to operators which only transmit that content), it seems to me that that effective control lies in being able to make a final decision on the audiovisual offer per se. ( 27 ) Specifically, in the case in the main proceedings, the question arises as to who decides on the programming schedule for NTV Mir Lithuania.

44. The fact (which would be for the referring court to ascertain) that the main content of the channel NTV Mir Lithuania is a retransmission in extenso of the channel NTV might tend to suggest that BMA does not have editorial responsibility for that channel. However, it is difficult to draw any definitive conclusion from this. It would depend on whether or not that company itself selects and organises NTV’s programmes when they are retransmitted. In any event, it seems to me that assuming such responsibility for a channel requires certain human and material resources. Whether or not BMA employs sufficient staff who are responsible for commissioning, collecting, examining, processing or validating programmes on the channel would, in my opinion, be a good indicator in that regard. ( 28 )

45. Even if BMA is indeed the operator which assumes that editorial responsibility, and irrespective of the fact that the company is formally registered in the United Kingdom, the referring court should also examine where, in practice, the editorial decisions regarding NTV Mir Lithuania are taken. ( 29 ) Again, this will be no mean feat. The focus, I presume, should be on the place where, in actual fact, the employees of that company who have the power to decide on that channel’s programme schedules usually work. That verification matters because the EU legislature laid down, within Directive 2010/13, a provision probably intended to prevent the establishment in the European Union of ‘PO Box’ companies. If, as the Lithuanian Government claims, those editorial decisions are really taken in Russia, BMA will be deemed to be established in the United Kingdom, in accordance with Article 2(3)(c) of that directive, only if a significant part of its workforce involved in the pursuit of the audiovisual media service activity operates in that Member State.

46. Moreover, even if, following that assessment, it is shown that the editorial responsibility for the channel NTV Mir Lithuania is assumed not by BMA but by the Russian company mentioned in point 37 of this Opinion, and/or that the editorial decisions are taken in Russia and the condition regarding the workforce laid down in Article 2(3)(c) of Directive 2010/13 is not fulfilled, the analysis would not end there. The connecting factors laid down in Article 2(4) of that directive, which concern the use of a satellite or an up-link in a Member State, would still have to be examined. ( 30 )

(b) The fact that a television channel is exclusively directed towards the territory of another Member State

47. Although BMA is registered in the United Kingdom, the company stated at the hearing that the channel NTV Mir Lithuania is directed exclusively towards the Lithuanian public. ( 31 ) The parties were asked by the Court whether that fact calls into question the application of the freedom of reception and retransmission provided for in Article 3(1) of Directive 2010/13. I shall therefore briefly return to that issue.

48. Directive 2010/13 is based on freedom of establishment. A media service provider is therefore free to establish itself in any Member State it wishes, even if it does not offer services in that State. ( 32 ) Nevertheless, that freedom, coupled with the country of origin principle, creates a risk of abuse. A provider which directs its content towards a particular Member State might establish itself in another Member State with the sole purpose of avoiding the application of stricter legislation in the first State or more efficient and active monitoring of its content by the authority responsible for regulating the audiovisual sector in that State. ( 33 )

49. According to the Court’s case-law in relation to Article 56 TFEU, a Member State may regard as a domestic broadcaster a radio and television organisation which establishes itself in another Member State in order to provide services there which are intended for the first State’s territory and wrongfully to avoid obligations under its legislation. ( 34 )

50. The Lithuanian Government considers, in this case, that BMA became established in the United Kingdom in order to circumvent Lithuanian legislation. ( 35 ) Can the Republic of Lithuania therefore rely on that case-law in order to treat BMA in the same way as a national broadcaster and to regulate that company as such? Not really. Even in cases of circumvention of its legislation, the receiving Member State may not, in accordance with Directive 2010/13, disregard its duty from the outset to respect the freedom of reception and retransmission. The EU legislature has, however, codified that case-law by providing for a specific procedure, contained in Article 4(2) to (5) of that directive. ( 36 ) It is common ground that the Republic of Lithuania did not use the procedure in respect of NTV Mir Lithuania. I shall therefore not expand on that procedure.

3. The fact that a measure such as that at issue in the case in the main proceedings does not fall within the scope of Article 3(1) and (2) of Directive 2010/13 (first question)

51. By its first question, the national court asks whether Article 3(1) and (2) of Directive 2010/13 covers only cases where the receiving Member State seeks to suspend the reception or retransmission of an audiovisual media service from another Member State, or also any other measure adopted by the first State in order to restrict in another way the reception or retransmission of that service. That court is essentially seeking to ascertain whether the measure provided for in Article 33(11) and (12)(1) of the Law on information for the public, which consists in an obligation for operators distributing television channels to Lithuanian consumers, for a period of 12 months, to distribute or retransmit via the internet a particular channel only in pay-to-view packages, falls within the scope of that provision.

52. I note that, in accordance with Article 3(1) of Directive 2010/13, Member States ‘shall ensure freedom of reception and shall not restrict retransmissions on their territory’ of audiovisual media services from other Member States for reasons which fall within the fields coordinated by that directive. This includes incitement to hatred, referred to in Article 6 of that directive. However, in respect of television broadcasting, Article 3(2) of that directive allows the receiving Member State ‘provisionally [to] derogate from paragraph 1’ subject to substantive ( 37 ) and procedural ( 38 ) conditions being satisfied.

53. According to the LRTK and the Lithuanian Government, those provisions cover only cases in which a Member State seeks to suspend the reception or retransmission of television broadcasts from another Member State. A measure such as that provided for in Article 33(11) and (12)(1) of the Law on information for the public does not fall within the scope of those provisions. BMA and the Commission take the opposite view. The referring court would tend to share their view.

54. In that regard, the wording of Article 3(1) and (2) of Directive 2010/13 does not in itself provide an answer to the question referred. Paragraph 1 sets out obligations for the receiving Member State (‘shall ensure freedom of reception’ and ‘shall not restrict retransmissions’ for reasons which fall within the coordinated fields), whereas paragraph 2 mentions in an abstract manner a ‘derogation’ from those obligations. However, it is difficult to obtain additional information from it regarding the measures referred to. In particular, that wording in itself does not clarify the meaning of ‘freedom of reception’. Moreover, the term ‘restrict’ may, in everyday language, have a wide range of meanings, from a complete blockage to a mere inconvenience.

55. Therefore, the wording of Article 3(1) and (2) of Directive 2010/13 must be examined in the light of the origin of that provision as well as its context and the objectives of that directive. ( 39 )

56. As regards the origin of that provision, I note that originally Article 2(2) of Directive 89/552, in its original version, laid down, in a first sentence, the principle of freedom of reception and retransmission and referred, in a second sentence, to the conditions in which the receiving Member State was able to ‘provisionally suspend retransmissions of television broadcasts’. That provision therefore envisaged the possibility of that Member State stopping temporarily the broadcast of such a programme on its territory.

57. The scope of Article 2(2) of that directive was nevertheless at the heart of a publicised case concerning, inter alia, whether the receiving Member State was able to stop not only the retransmission (by cable) of a programme on its territory, but also its direct reception (from a satellite). ( 40 ) In response to that case, by adopting Directive 97/36, ( 41 ) the EU legislature replaced that provision with a new Article 2a, which contained the wording, retained in Article 3(2) of Directive 2010/13, that that Member State may ‘provisionally derogate’ from the freedom of reception and retransmission, subject to the conditions laid down therein. The aim of that change in terminology was, to my knowledge, essentially to clarify that the receiving Member State may take action against both the reception and the retransmission of a broadcast on its territory. However, there is nothing to indicate that the EU legislature had intended to alter the nature of the measures covered. ( 42 ) Furthermore, recital 36 of Directive 2010/13 still mentions, as did the fifteenth recital of Directive 89/552 before it, the ‘suspension of retransmission’ by the receiving Member State. ( 43 )

58. As regards the context of Article 3(1) and (2) of Directive 2010/13 and the objectives of the directive, BMA submits in essence that that directive implements the freedom to provide media services. The concept of a derogation from the freedom of reception and retransmission should, therefore, be given the same meaning as a restriction within the meaning of Article 56 TFEU. The applicant in the main proceedings notes that, according to the Court’s settled case-law, a restriction covers measures which prohibit, impede or render less attractive the exercise of the freedom to provide services. ( 44 ) In the present case, the measure provided for in Article 33(11) and (12)(1) of the Law on information for the public affects both consumers and the provider of the channel in question. Consumers must therefore subscribe to both a basic package and a pay-to-view package to continue watching that channel. The channel will therefore see its audience fall, which will have a negative impact on its profitability. That measure therefore constitutes such a restriction and, by extension, is a derogation from the freedom of reception and retransmission within the meaning of Article 3(1) and (2) of Directive 2010/13. The Commission concurs, in essence, with that analysis.

59. I do not think that this is the right approach. Admittedly, Directive 2010/13 gives specific expression, in the field of audiovisual media services, to the freedom to provide services guaranteed by Article 56 TFEU. ( 45 ) However, the creation of an ‘area without internal frontiers’ ( 46 ) with regard to media services goes well beyond the issues of economic freedoms of movement. Media services are not like other services. Television broadcasting, in particular, is of fundamental importance for democracy, culture and education in the Member States. At the same time, such broadcasting could have a clear impact on the population of the Member States. ( 47 ) There are numerous public interests surrounding the transmission of television broadcasts.

60. In that context, the coordination provided for by Directive 2010/13 has limited scope. The intention of that directive, in particular Article 3(1) and (2), is not to remove all obstacles that may hinder the transmission of a broadcaster’s channels or impair their profitability. In accordance with the case-law of the Court, the freedom of reception and retransmission reflects the recognition by the receiving Member State of the supervisory function assumed by the originating Member State with respect to the content of television broadcasts provided by broadcasters falling within its competence. In other words, that freedom assures those broadcasters that broadcasts whose content has been ‘approved’ by the originating Member State may, in principle, lawfully be distributed in the territory of all Member States.

61. Accordingly, Article 3(1) and (2) of Directive 2010/13 precludes the receiving Member State from performing, for reasons which fall within the fields coordinated by that directive (protection of minors, incitement to hatred, etc.) a second control of the content broadcast on its territory, by making it subject to a system of prior authorisation. That provision also precludes the receiving Member State from purely and simply prohibiting the retransmission of that content for those reasons. ( 48 ) By adopting such measures, the receiving Member State derogates from the freedom of reception and retransmission.

62. By contrast, that provision does not apply to measures which may be adopted by the receiving Member State in relation to a television broadcast, and which result from legislation the subject matter of which is not broadcasting as such, and which, while pursuing objectives which fall within the fields coordinated, do not have the effect of restricting the retransmission (or the reception) ‘as such’ of that broadcast in its territory. ( 49 )

63. The judgment in Mesopotamia Broadcast and Roj TV ( 50 ) is a good example of this. In the case giving rise to that judgment, the German authorities had prohibited Mesopotamia Broadcast and Roj TV, which fell under the jurisdiction of Denmark, from carrying out activities in Germany, on grounds of incitement to hatred, on the basis of German legislation on associations. In practice, all of that broadcaster’s activities (such as the production of programmes, public screenings, sympathy actions, etc.) had therefore been prohibited in Germany. The Court held that, in view of the non-exhaustive character of Directive 89/552 with regard to areas relating to public order, public morality or public security, those authorities were free to apply such legislation (the subject matter of which was not broadcasting as such) to the activities of Mesopotamia Broadcast and Roj TV activities, in so far as that legislation did not have the effect of hindering the retransmission as such of Roj TV broadcasts in Germany.

64. In the light of the case-law of the Court cited above, it seems to me that a measure such as that provided for in Article 33(11) and (12)(1) of the Law on information for the public does not fall within the scope of Article 3(1) and (2) of Directive 2010/13.

65. First, the subject matter of that legislation is not television broadcasting (or the provision of media services in general). As mentioned in point 38 of this Opinion, EU law draws a distinction between the provision of content, which involves editorial responsibility, and the broadcasting of that content. In this respect, as stated in Article 33(11) of the Law on information for the public, the measure proposed by that legislation is targeted at operators offering those broadcasts to Lithuanian consumers in channel packages. It concerns not the content of those television broadcasts but their distribution. That legislation, in essence, imposes requirements as to the composition of those packages. However, offering such packages to consumers, in so far as it does not involve exercising editorial control over the channels distributed, does not fall within the scope of Directive 2010/13, ( 51 ) as the LRTK rightly notes.

66. Secondly, to my mind, the measure provided for in Article 33(11) and (12)(1) of the Law on information for the public cannot be regarded as having the effect of restricting the retransmission (or the reception) as such of the channel in question. The relevant test in that regard is, in my view, to determine whether, notwithstanding the measure adopted by the receiving Member State, the television broadcast concerned may still be distributed legally and remains legally accessible to consumers from its territory. ( 52 ) Accordingly, the receiving Member State restricts the reception or the retransmission as such where it suspends the retransmission of a channel on a cable network or prohibits the sale of a decoder needed to view a satellite channel. ( 53 ) The channel may no longer lawfully be retransmitted and a television viewer who wishes to may not legally watch the channel in question.

67. By contrast, in my view, the situation in which a Member State regulates, by certain specific arrangements, the distribution of television broadcasts is completely different. The receiving Member State can require distributors of television channels to organise their offerings in such a way that, for example, pornographic channels are included only in specific packages which are subject to particular conditions, ( 54 ) to restrict the advertising of those types of channels or even to prohibit their viewing in public places. Admittedly, those specific arrangements do limit, to a certain extent, the accessibility of those channels. This is indeed their very purpose. Nevertheless, those distribution arrangements do not, in my view, restrict the reception or the retransmission as such of the channels in question. Distributors remain free to receive those channels, to include them in their offerings and to retransmit them. Consumers may access those channels legally. In the present case, Lithuanian viewers are still able legally to watch the channel NTV Mir Lithuania provided that they subscribe to the appropriate package.

68. Of course, those specific arrangements for distribution and access cannot deprive Article 3(1) and (2) of Directive 2010/13 of effectiveness. That would be the case if they promoted the distribution of national broadcasts, or were of such magnitude that, in practice, they would render excessively difficult the distribution of and access to a broadcast from another Member State. Nevertheless, that is not the situation in the present case. ( 55 )

69. The contrary interpretation, which prohibits, in principle, the receiving Member State from imposing, for reasons such as the protection of minors or the prohibition of incitement to hatred, rules regarding the distribution of audiovisual media services would go beyond the logic of the division of powers between the originating Member State and the receiving Member State. The way in which distributors organise the packages they offer to consumers of a second State is an issue which, by definition, cannot be controlled by the first State.

70. Another contextual point must be noted here. It will not have escaped notice that the conditions laid down in Article 3(2) of Directive 2010/13 ( 56 ) are particularly onerous. This is justified, in my view, given the seriousness of the damage to the free movement of audiovisual media services caused by the suspension of such a service. The conditions originate from an abstract balance between, on the one hand, the freedom of reception and retransmission, which gives specific expression to the freedom of expression and the freedom to provide services, and, on the other, certain public interests of the Member States. That seriousness calls, in return, for strict conditions. ( 57 ) By contrast, as the LRTK notes, the obligation to transfer a particular channel to pay-to-view packages is far less restrictive than the obligation to suspend it. It would be disproportionate and inappropriate to apply the same conditions to a measure of that kind.

71. The interpretation that I propose is not called into question, to my mind, by BMA’s argument that, as a derogation from the principle of freedom of reception set out in Article 3(1) of Directive 2010/13, Article 3(2) of that directive must be interpreted restrictively. ( 58 )

72. As I have stated, the freedom of reception and retransmission provides the assurance to broadcasters that broadcasts approved by the originating Member State may, in principle, lawfully be distributed in the territory of all Member States. That freedom, in my view, is not intended to remove all obstacles that may hinder the transmission of a broadcaster’s channels or impair their profitability, such as rules concerning distribution. Therefore, I am not proposing that the Court give a broad interpretation to a derogation, but that it should give appropriate effect to the principle itself.

73. Moreover, I note that the measure at issue in the Mesopotamia Broadcast and Roj TV case, ( 59 ) which consisted in a complete prohibition on carrying out activities, was likely to hinder the activities of the broadcaster concerned to a far greater extent than the rule regarding the composition of packages at issue in the present case. In that case, the German Government had done everything that was technically possible to curb the spread by Roj TV of information that incited hatred. Therefore, in my view, it would be paradoxical to censure the obligation laid down in Article 33(11) and (12)(1) of the Law on information for the public while having confirmed the measure at issue in that judgment. The former operates in pursuance of interests similar to those that inform the latter, but less vigorously.

74. Furthermore, my proposed interpretation does not amount to giving the receiving Member State carte blanche. Although a measure such as that provided for in Article 33(11) and (12)(1) of the Law on information for the public is not, in my view, covered by Article 3(1) and (2) of Directive 2010/13, it still falls within the scope of Article 56 TFEU. ( 60 ) As I have stated, that measure is capable of constituting a restriction on the freedom to provide services. However, that restriction may be justified.

75. The measure at issue does not directly or indirectly discriminate in favour of national content and pursues an objective of general interest. In my view, it also successfully passes the proportionality test. ( 61 ) The Lithuanian authorities did not prohibit access to the channel NTV Mir Lithuania altogether, but merely restricted its audience. In this context, since the provision of audiovisual media services is inherently linked to freedom of expression, in order to be compatible with the freedom to provide services, the national legislation in question must also comply with fundamental rights the observance of which is ensured by the Court, ( 62 ) in particular Article 11 of the Charter of Fundamental Rights of the European Union. But again, freedom of expression is not an absolute right and the tests regarding justification and proportionality should be in favour of the Lithuanian authorities. ( 63 )

76. In that regard, we cannot lose sight of the background to the present case. According to the information provided by the LRTK and the Lithuanian Government, Article 33(11) and (12)(1) of the Law on information for the public was adopted in order to protect the Lithuanian information area and to provide a swift response ( 64 ) to Russian propaganda in the context of the information war to which the Baltic States are subject in view of their geopolitical situation. The EU institutions have themselves noted that the Baltic States are confronted with the spread in the media of false information targeted at their Russian-speaking minorities, with the aim of denigrating those States, of undermining the European narrative based on democratic values, human rights and the rule of law and, more generally, of destabilising the political, economic and social situation of those States. ( 65 ) Given the particularly great influence that television has on public opinion, the Lithuanian legislature’s reaction seems perfectly reasonable.

77. In the light of all the foregoing considerations, I propose that the Court answer the question to the effect that Article 3(1) and (2) of Directive 2010/13 must be interpreted as meaning that a measure, adopted by the Member State that receives a television channel from another Member State, consisting in the obligation for operators distributing television channels to consumers in the first State to distribute or retransmit the channel in question only in pay-to-view packages or those available for an additional fee, does not fall within the scope of that provision.

4. In the alternative: the obligation on the receiving Member State to comply with the conditions laid down in Article 3(2) of Directive 2010/13 (second question)

78. If, contrary to my suggestion, Article 3(1) and (2) of Directive 2010/13 were to be interpreted as covering a measure such as that provided for in Article 33(11) and (12)(1) of the Law on information for the public, the referring court asks, by its second question, in essence, whether, in accordance with EU law, that measure may be adopted where the conditions laid down in Article 3(2) of that directive are not satisfied.

79. In my view, it is difficult to deny that, within the scheme of Directive 2010/13, a receiving Member State intending to adopt, against an audiovisual media service coming from another Member State, a measure which comes within the scope of Article 3(1) and (2) of that directive must comply with the conditions laid down in Article 3(2). ( 66 )

80. It is admittedly clear from Article 4(1) that Directive 2010/13 lays down minimum rules. Member States may therefore lay down stricter or more detailed rules than those provided for by that directive. However, the Member States have that option only with regard to broadcasters under their jurisdiction. In other words, the transmitting Member State may go beyond the requirements of that directive, but not the receiving Member State. ( 67 )

81. It remains to be determined whether the receiving Member State may rely on primary law to justify the adoption of a measure which does not satisfy the conditions laid down in Article 3(2) of Directive 2010/13. In this regard, I would point out that Article 52 TFEU provides for justifications relating inter alia to public policy and public security, on which the Member States may rely, since those justifications have been rendered applicable to the freedom to provide services by the reference contained in Article 62 TFEU. I note that the Court has not yet adopted a position on that issue. ( 68 )

82. In my opinion, as the Commission submitted at the hearing, assuming that a particular measure falls within the scope of Article 3(1) and (2) of Directive 2010/13, and provided that that measure is based on a reason falling within the fields coordinated by that directive, the receiving Member State cannot rely on primary law in order to go beyond what is allowed under that provision.

83. In accordance with the settled case-law of the Court, the Member States have the right to rely on justifications provided for by the FEU Treaty only in the absence of harmonisation of the relevant rules. ( 69 ) A measure which is prohibited by a directive implementing the freedom to provide services cannot be justified on the basis of primary law. The Court considers that, when the EU legislature adopts secondary legislation giving effect to a freedom of movement guaranteed by the FEU Treaty, ( 70 ) it may limit the possibility of relying on those justifications. ( 71 )

V. Conclusion

84. In the light of all of the above considerations, I propose that the Court should answer the questions referred by the Vilniaus apygardos administracinis teismas (Vilnius Regional Administrative Court, Lithuania) as follows: Article 3(1) and (2) of 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) must be interpreted as meaning that a measure, adopted by the Member State that receives a television channel from another Member State, consisting in the obligation for operators distributing television channels to consumers in the first State to distribute or retransmit the channel in question only in pay-to-view packages or those available for an additional fee, does not fall within the scope of that provision.

( 1 ) Original language: French.

( 2 ) 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 (OJ 2010 L 95, p. 1).

( 3 ) See, inter alia, judgment of 26 July 2017, Persidera (C‑112/16, EU:C:2017:597, paragraph 24 and the case-law cited).

( 4 ) See, inter alia, order of 10 June 2011, Mohammad Imran (C‑155/11 PPU, EU:C:2011:387, paragraphs 17 and 18), and judgments of 12 March 1998, Djabali (C‑314/96, EU:C:1998:104, paragraphs 20 and 21), and of 20 January 2005, García Blanco (C‑225/02, EU:C:2005:34, paragraphs 29 to 31).

( 5 ) The amendment or the repeal of an administrative act by an authority, which does not amount to recognition of its illegality and takes effect ex nunc, should not be confused with the annulment of that act by a court, by virtue of which the act annulled is removed retroactively from the legal order and is deemed never to have existed. See, to that effect, judgment of 28 May 2013, Abdulrahim v Council and Commission (C‑239/12 P, EU:C:2013:331, paragraph 68).

( 6 ) BMA submits that its advertising revenue has decreased as a result of the decision at issue.

( 7 ) See, by analogy, judgment of 28 May 2013, Abdulrahim v Council and Commission (C 239/12 P, EU:C:2013:331, paragraphs 61 to 64 and the case-law cited).

( 8 ) See, by analogy, judgment of 4 October 1991, Society for the Protection of Unborn Children Ireland (C‑159/90, EU:C:1991:378, paragraph 15 and the case-law cited).

( 9 ) Council Directive 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 (OJ 1989 L 298, p. 23), known as the Television without Frontiers Directive. The material scope of that directive was initially limited to television broadcasts. It was subsequently extended to cover services for the viewing of programmes on demand, distributed on the Internet in particular. These different services were therefore grouped under the term ‘audiovisual media services’.

( 10 ) Recital 104 of Directive 2010/13. The same idea is again expressed in recital 8 of that directive, with regard to television broadcasting, by the expression ‘freedom of movement [of] … television programmes’. Television broadcasting is also subject, in Europe, to the European Convention on Transfrontier Television, signed in Strasbourg on 5 May 1989, to which 20 Member States, including the Republic of Lithuania, have acceded. I note that the work concerning that convention and Directive 89/552 took place simultaneously in order to create parallel instruments which pursue similar objectives and are based on the same type of rules.

( 11 ) Those requirements also concern advertising, sponsorship, teleshopping, the protection of minors, the promotion of European works and access to information on events of major importance for society.

( 12 ) It is clear from recitals 33 and 34 of Directive 2010/13 that the EU legislature found that principle to be essential for the creation of an internal market for audiovisual media services in order, inter alia, to ensure legal certainty for media service providers and to enhance media pluralism throughout the European Union. Moreover, it is clear from recital 36 of that directive that the EU legislature considered monitoring by the originating Member State to be sufficient, in principle, to ensure compliance with the basic requirements provided for by that directive.

( 13 ) See point 52 of this Opinion.

( 14 ) According to the order for reference, a programme package is a group of television channels compiled and offered to consumers by a broadcaster or another person providing those consumers with services distributing television channels or programmes via the internet. The basic package is a group of channels which is compiled as stated above and supplied, for a fixed fee, to all consumers of the services in question. A pay-to-view package is a group of channels which is distributed to consumers for an additional fee not included in the price of the basic package.

( 15 ) In its observations, the LRTK stated that the programme in question ‘contained information which incited hostility and hatred based on nationality towards the Baltic countries and which was false, concerning the collaboration of Lithuanians and Latvians in the context of the Holocaust and concerning the domestic policies of the Baltic countries which were purportedly nationalistic and neo-Nazi and were a threat to the Russian minority living in their territories’. According to that authority, that programme ‘was targeted at the Russian-speaking minority in Lithuania’ and, through the use of a variety of propaganda tools, its aim was to ‘influence, in a negative and suggestive way, the opinion of that social group with regard to Lithuania’s, Latvia’s and Estonia’s internal and external policies, to exacerbate divides and social polarisation, and to highlight the tension in Eastern Europe which has been created by western countries and Russia’s role as the victim’. I shall return to these aspects in point 76 of this Opinion.

( 16 ) In its observations, the Commission submitted that the LRTK interpreted that concept in the light of the judgment of 22 September 2011, Mesopotamia Broadcast and Roj TV (C‑244/10 and C‑245/10, EU:C:2011:607, paragraphs 41 to 44). In that judgment, the Court held that the concept of incitement to hatred within the meaning of Directive 89/552 applied to messages which played a role in stirring up violent confrontations between persons of different ethnic origins or from different communities living in the same State and in exacerbating the tensions between them, thereby infringing the principles of international understanding. In absolute terms, determining the point at which the biased and unfair presentation of historical events or news falls under incitement to hatred is not an easy exercise. However, that goes beyond the subject matter of this Opinion.

( 17 ) See Article 2(6) and recital 39 of Directive 2010/13, in accordance with which that directive does not apply to audiovisual media services intended exclusively for reception in third countries and which are not received with standard consumer equipment directly or indirectly by the public in one or more Member States.

( 18 ) See recital 54 of Directive 2010/13.

( 19 ) See Article 1(1)(f) of Directive 2010/13.

( 20 ) The term ‘up-link’ designates the transmission of signals between a ground station and a satellite, as opposed to ‘downlink’, which refers to the transmission of satellite signals to a ground station.

( 21 ) Some context should be given here. The population of the Baltic States (Estonia, Latvia and Lithuania) includes a large Russian-speaking minority originating in the large-scale immigration to those States during the USSR period and the compulsory use of the Russian language at that time. Two linguistic communities therefore live side by side in each of those States. The national television broadcasters broadcast their programmes in the official language of the State concerned, whereas satellite and cable technology enables Russian television channels to be broadcast to the Russian-speaking minority. See, inter alia, Jõesaar, A., ‘One Country, Two Polarised Audiences: Estonia and the Deficiency of the Audiovisual Media Services Directive’, Media and Communication, 2015, Volume 3, No 4.

( 22 ) Directive of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services (Framework Directive) (OJ 2002 L 108, p. 33).

( 23 ) See the definition of an ‘audiovisual media service’ in Article 1(1)(a)(i) of Directive 2010/13 and the definition of a ‘media service provider’ in Article 1(1)(d) and recital 26 of that directive, as well as the definition of an ‘electronic communications service’ in Article 2(c) of Directive 2002/21.

( 24 ) To clarify, Article 3(1) of Directive 2010/13 covers retransmission only as a method of providing audiovisual media services. That directive does not apply to retransmission services as such. It regulates the content broadcast and not how it is broadcast.

( 25 ) I note that Directive 2010/13 does not harmonise authorisations or licences issued by the Member States which consider that they have jurisdiction to regulate audiovisual media service providers on the basis of Article 2(1) of that directive. The licence granted to BMA by Ofcom therefore has no intrinsic value under EU law.

( 26 ) That would be the case, for example, if one Member State considered, in the light of its national law, that an operator established on its territory had editorial responsibility over the content, whereas another Member State considered, in the light of its own rules, that it lay with a different operator coming under its jurisdiction.

( 27 ) See, for that definition, Schulz, W., Heilmann, S., ‘La responsabilité éditoriale — Notes sur un concept clé de la règlementation des services de médias audiovisuels’, IRIS Spécial: La responsabilité éditoriale, European Audiovisual Observatory, Strasbourg, 2008, p. 17.

( 28 ) See, as regards the latter point, the Council of Europe document Recommendation CM/Rec(2011)7 of the Committee of Ministers to member states on a new notion of media, adopted on 21 September 2011, paragraphs 29 to 36, in particular paragraph 34.

( 29 ) Directive 2010/13 uses alternately ‘editorial responsibility’ and ‘editorial decisions’. In my view, there is no need to differentiate between those two concepts. In order to determine what constitutes an ‘editorial decision’, the criteria which define editorial responsibility must be used.

( 30 ) In the present case, according to the information provided by BMA at the hearing, the channel NTV Mir Lithuania is transmitted by satellite to a broadcasting station in Latvia (downlink), which retransmits the signal to cable operators in Lithuania who for their part retransmit that channel to Lithuanian viewers. According to the Lithuanian Government, the satellite in question does not fall under the jurisdiction of the United Kingdom, nor is the up-link connected to that satellite situated on the territory of that Member State. In reality, it is a Russian satellite and its up-link is located outside the European Union.

( 31 ) BMA stated nevertheless that the channel can be viewed on the internet in other Member States. In any event, this does not call into question the fact that it is directed towards the Lithuanian public.

( 32 ) See recital 40 of Directive 2010/13.

( 33 ) In relation to that last point, and without ever wishing to call into question Ofcom’s monitoring ability (that authority having sanctioned BMA on several occasions in respect of programmes broadcast on the channel NTV Mir Lithuania), I note that it seems easier for the LRTK than it does for Ofcom to monitor such a channel which is broadcast mainly in Russian. In the present case, Ofcom was able to monitor the programme at issue only after it had obtained a translation into English of the whole programme. Moreover, the LRTK and Ofcom did not view its content in the same way. While, for the LRTK, in view of the geopolitical context of the Baltic States (see footnote 22 and point 76 of this Opinion), that programme was a case of incitement to hatred, Ofcom, which was not familiar with that context, considered that it contravened the due impartiality rules regarding content. See Ofcom Broadcast and On Demand Bulletin, No 319, 19 December 2016, pp. 28 to 50.

( 34 ) According to the Court, the circumvention of the rules of the receiving Member State does not exclude the operator in question from the scope of the freedom to provide services. However, that Member State may invoke that factor as a justification for derogating from that freedom. See judgments of 3 December 1974, vanBinsbergen (33/74, EU:C:1974:131, paragraph 13), and of 5 October 1994, TV10 (C‑23/93, EU:C:1994:362, paragraphs 15, 20 and 21).

( 35 ) That company is said to have taken that decision inter alia in response to the adoption by the LRTK on 19 March 2014 of a decision to suspend the retransmission of NTV Mir Lithuania.

( 36 ) See, also, recitals 41 and 42 of Directive 2010/13.

( 37 ) Point (a) of the first subparagraph of Article 3(2) requires that a television broadcast coming from another Member State has manifestly, seriously and gravely infringed inter alia the prohibition laid down in Article 6, and point (b) thereof requires that the broadcaster in question has infringed that prohibition on at least two prior occasions during the previous 12 months.

( 38 ) Under point (c) of the first subparagraph of Article 3(2), the receiving Member State must notify the broadcaster and the Commission in writing of the alleged infringements and of the measures it intends to take should any such infringement occur again. In accordance with point (d) of that subparagraph, only if consultations with the transmitting Member State and the Commission have not produced an amicable settlement within 15 days of that notification and the alleged infringement persists can the receiving Member State take measures. Moreover, in accordance with the second subparagraph of Article 3(2), the Commission must take a decision within 2 months following notification on whether those measures are compatible with EU law.

( 39 ) See, with regard to the factors to be taken into account in order to interpret a provision of EU law, judgment of 10 December 2018, Wightman and Others (C‑621/18, EU:C:2018:999, paragraph 47 and the case-law cited).

( 40 ) I refer here to the ‘Red Hot TV’ case, which hit the headlines in the United Kingdom at the beginning of the 1990s. That case concerned a pornographic television channel broadcast in that Member State via satellite using an up-link situated in Denmark. The British authorities had sought to prevent that broadcast by criminalising, inter alia, the provision of decoders enabling it to be viewed. Red Hot TV had challenged that measure, arguing that, in accordance with its wording, Article 2(2) of Directive 89/552 authorised the receiving Member State only to suspend the retransmission of a broadcast from another Member State. A number of questions were referred to the Court (Case C‑327/93), but Red Hot TV went bankrupt and the national dispute was terminated before the Court could take a decision. See Dann, P., ‘The Red Hot Channel: pornography without frontiers’, Entertainment Law Review, 1993, 4(6), pp. 191 to 193.

( 41 ) Directive of the European Parliament and of the Council of 30 June 1997 amending [Directive 89/552] (OJ 1997 L 202, p. 60). See, for those explanations, Proposal for a European Parliament and Council directive amending [Directive 89/552] (COM(95) 86 final) (OJ 1995 C 185, p. 4), pp. 16, 19 and 33.

( 42 ) Recital 15 of Directive 97/36 also stated that Article 2a covered measures ‘aimed at restricting the reception and/or suspending the retransmission of television broadcasts’. The use of the term ‘restricting’ the reception, as opposed to ‘suspending’ the retransmission, has a practical explanation. Where a channel is transmitted from a satellite and the signal is received directly by the aerials of viewers in a Member State, that State, as a general rule, is technically unable to stop that transmission. Strictly speaking, it is only able to restrict the reception of the channel, in particular by prohibiting, as in Red Hot TV, the sale of any decoder which is necessary in order to view it. In both cases, the intention is to stop, as far as possible, the distribution of a broadcast.

( 43 ) Similarly, Article 24(2) of the Convention on Transfrontier Television, which, I would reiterate, was intended to run in parallel with Directive 89/552 (and by extension with Directive 2010/13), provides that, in certain circumstances, the receiving State may ‘suspend provisionally the retransmission’ of a programme. Paragraph 322 of the explanatory report to that convention states that that procedure is designed to ‘prevent the arbitrary suspension of retransmission by [a receiving State]’ (emphasis added). Moreover, I note that that convention was revised by Protocol ETS No 171, which entered into force on 1 March 2002 in order, specifically, to take account of the amendments to Directive 89/522 introduced by Directive 97/36. However, Article 24(2) has not been amended.

( 44 ) See, inter alia, judgments of 31 March 1993, Kraus (C‑19/92, EU:C:1993:125, paragraph 32), of 13 December 2007, Commission v Italy (C‑465/05, EU:C:2007:781, paragraph 17), and of 17 November 2015, RegioPost (C‑115/14, EU:C:2015:760, paragraph 69).

( 45 ) The Court has held, since its judgment of 30 April 1974, Sacchi (155/73, EU:C:1974:40, paragraph 6), that television broadcasts are ‘services’ within the meaning of Article 56 TFEU. Directive 2010/13 was thus adopted on the basis of Article 53(1) and Article 62 TFEU.

( 46 ) See point 26 of this Opinion.

( 47 ) See recitals 2, 5, 21 and 45 of Directive 2010/13.

( 48 ) See, with regard to Directive 89/552, judgments of 10 September 1996, Commission v Belgium (C‑11/95, EU:C:1996:316, paragraphs 42 and 92), of 29 May 1997, Denuit (C‑14/96, EU:C:1997:260, paragraphs 32 to 36), and of 22 September 2011, Mesopotamia Broadcast and Roj TV (C‑244/10 and C‑245/10, EU:C:2011:607, paragraphs 35 and 36). The interpretation given by the Court can, in my view, be transposed to Directive 2010/13.

( 49 ) See judgments of 9 July 1997, De Agostini and TV-Shop (C‑34/95 to C‑36/95, EU:C:1997:344, paragraphs 32 to 38), and of 22 September 2011, Mesopotamia Broadcast and Roj TV (C‑244/10 and C‑245/10, EU:C:2011:607, in particular paragraph 37).

( 50 ) Judgment of 22 September 2011 (C‑244/10 and C‑245/10, EU:C:2011:607, paragraphs 51 to 53).

( 51 ) The provision of packages to the public via cable is, by contrast, an ‘electronic communications service’ which falls within the scope of Directive 2002/21, inter alia. See judgment of 7 November 2013, UPC Nederland (C‑518/11, EU:C:2013:709, paragraph 44).

( 52 ) See judgment of 22 September 2011, Mesopotamia Broadcast and Roj TV (C‑244/10 and C‑245/10, EU:C:2011:607, paragraph 52).

( 53 ) In my view, that interpretation is confirmed by recital 10 of the recent Directive (EU) 2018/1808 of the European Parliament and of the Council of 14 November 2018 amending [Directive 2010/13] in view of changing market realities (OJ 2018 L 303, p. 69), according to which the receiving Member State must not, in principle, take any measures ‘which would prevent the retransmission, in its territory, of television broadcasts coming from another Member State’ (emphasis added).

( 54 ) See, by way of an example, in France, point D of Recommendation No 2007-4 of 15 December to publishers and distributors of television services broadcasting ‘Category V’ programmes to mainland France and its overseas départements (JORF No 298, 23 December 2004), which provides, in essence, that suppliers of packages that include pornographic channels must offer a package that does not contain those channels under commercial conditions which do not favour the overall offering containing those channels. See also, in Romania, Article 27(2) of Decision No 220 of 24 February 2011 of the National Audiovisual Council (text available in English at http://www.cna.ro/Decision-no-220-dated-February.html), in accordance with which ‘18+’ programmes supplied by media service providers falling under the jurisdiction of EU States other than Romania must be broadcast in optional packages which are specially dedicated to adults.

( 55 ) In particular, the legislation at issue in the case in the main proceedings in no way requires the channel in question to be distributed at a prohibitive price. Article 33(11) of the Law on information for the public merely prohibits suppliers of packages from subsidising or supporting pay-to-view packages or from offering concessions of any kind, and from supplying them at a price that is lower than the costs they incurred for the acquisition, retransmission or distribution via the Internet of the channels which make up those packages.

( 56 ) Recalled in footnotes 37 and 38 of this Opinion.

( 57 ) See, to that effect, the Explanatory Report to the European Convention on Transfrontier Television, paragraph 328.

( 58 ) See recital 43 of Directive 2010/13.

( 59 ) Judgment of 22 September 2011 (C‑244/10 and C‑245/10, EU:C:2011:607).

( 60 ) It is true that the provision of packages of channels via cable does come under Directive 2002/21, as I stated in footnote 51 of this Opinion. However, it is clear from Article 1(3) of that directive that the directive is without prejudice to measures taken at national level, in compliance with EU law, to pursue general interest objectives. The measure at issue in the main proceedings should therefore be assessed by reference to EU primary law.

( 61 ) I note that, in accordance with the principle of proportionality, the application of the national rules of a Member State to service providers established in another Member State must be appropriate for ensuring attainment of the objective they pursue and must not go beyond what is necessary for that purpose. See, inter alia, judgment of 18 July 2007, Commission v Germany (C‑490/04, EU:C:2007:430, paragraph 65 and the case-law cited).

( 62 ) See judgments of 18 June 1991, ERT (C‑260/89, EU:C:1991:254, paragraphs 42 to 45), and of 30 April 2014, Pfleger and Others (C‑390/12, EU:C:2014:281, paragraph 36).

( 63 ) The European Court of Human Rights has ruled on several occasions on the fight against information that incites hatred. It notes, in that connection, that freedom of expression is not an absolute right and that prohibiting such information may justify prohibiting the broadcast of a programme (see in particular the recent judgment of the ECtHR, 17 April 2018, Roj TV A/S v. Denmark, CE:ECHR:2018:0417DEC002468314, § 37 to 39, 41 and 42). This must be the case even more so with regard to a measure which merely regulates the distribution of a television channel.

( 64 ) I note that, as well as being onerous, the procedure laid down in Article 3(2) of Directive 2010/13 is relatively long. Those features explain why, in practice, that procedure is rarely used (and is rarely successful). See European Regulators Group for Audiovisual Media Services (ERGA), Report on territorial jurisdiction in a converged environment, 17 May 2016, in particular pp. 9 and 12. Moreover, at the time of the case in the main proceedings and in respect of television broadcasting, that directive did not provide for an urgent procedure allowing an immediate derogation from the freedom to receive and retransmit a television broadcast, even though such a measure was already laid down with regard to on-demand audiovisual media services in Article 3(5) of that directive. I note, however, that the recent Directive 2018/1808 has just extended that urgent procedure to television broadcasts.

( 65 ) Wording taken from European Parliament resolution of 23 November 2016 on EU strategic communication to counteract propaganda against it by third parties (2016/2030(INI)) and Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions of 24 April 2018, Tackling online disinformation: a European Approach (COM(2018) 236 final). See also Commission Decision of 10 July 2015 on the compatibility of the measures adopted by Lithuania pursuant to Article 3(2) of [Directive 2010/13] (C(2015) 4609 final). That decision followed the suspension by that Member State of the distribution in its territory of the Russian channel RTR Planeta, which fell under the jurisdiction of Sweden.

( 66 ) Without prejudice, however, to the procedure provided for in Article 4(2) to (5) of Directive 2010/13.

( 67 ) See, by analogy, judgment of 18 December 2007, Laval un Partneri (C‑341/05, EU:C:2007:809, paragraphs 79 and 80).

( 68 ) The argument was raised as a ground of defence by the Kingdom of Belgium in the action for failure to fulfil obligations which gave rise to the judgment of 10 September 1996, Commission v Belgium (C‑11/95, EU:C:1996:316, paragraphs 91 and 92), delivered in respect of Directive 89/552. In that judgment, however, the Court did not consider it necessary to address that question.

( 69 ) See, to that effect, judgment of 18 March 1980, Debauve and Others (52/79, EU:C:1980:83, paragraph 15).

( 70 ) I note that Directive 2010/13 was adopted on the basis inter alia of Article 62 TFEU. The intention of the EU legislature was thus to implement, within the scope of that directive, the option to derogate on grounds of public policy and public security. See, to the same effect, Opinion of Advocate General Lenz in Commission v Belgium (C‑11/95, EU:C:1996:178, points 100 to 104).

( 71 ) See judgment of 16 June 2015, Rina Services and Others (C‑593/13, EU:C:2015:399, paragraph 40 and the case-law cited).