Judgment of the Court of 16 December 1992. - Commission of the European Communities v Kingdom of Belgium. - Failure to fulfil obligations - Access to cable television networks - Conditions. - Case C-211/91.



European Court reports 1992 Page I-06757

Swedish special edition Page I-00235

Finnish special edition Page I-00247



Summary

Parties

Grounds

Decision on costs

Operative part



Keywords

++++

1. Freedom to provide services ° Restrictions ° Prohibition on the relaying of radio or television programmes broadcast from another Member State in a language other than that of that State ° Not permissible ° Justification ° None

(EEC Treaty, Arts 56 and 59)

2. Freedom to provide services ° Restrictions directed against providers of services seeking only to avoid compliance with professional rules ° Permissibility ° Entire sectors closed to the exercise of the freedom to provide services ° Not permissible

(EEC Treaty, Art. 59)

Summary

1. By prohibiting cable television companies from broadcasting on their networks programmes from radio or television broadcasting stations in other Member States, where the programmes are not transmitted in the language or one of the languages of the Member State in which the station is established, a Member State is in breach of its obligations under Article 59 of the Treaty.

Such a restriction, which is discriminatory in that it is not applicable to services without distinction as regards their origin, cannot be brought within any of the grounds for exemption from the freedom to provide services permitted by Community law, that is to say those laid down in Article 56 of the Treaty.

2. While it is true that a Member State cannot be denied the right to take measures to prevent a provider of services whose activity is entirely or principally directed towards its territory from exercising the freedom guaranteed by Article 59 of the Treaty for the purpose of avoiding the professional rules of conduct which would be applicable to him if he were established within that State, it does not follow that it is permissible for a Member State to prohibit altogether the provision of certain services by operators established in other Member States.

Parties

In Case C-211/91,

Commission of the European Communities, represented by Pieter Van Nuffel, of its Legal Service, acting as Agent, with an address for service in Luxembourg at the office of Roberto Hayder, of the Legal Service, Wagner Centre, Kirchberg,

applicant,

v

Kingdom of Belgium, represented by Jan Devadder, Director in the Ministry of Foreign Affairs, Foreign Trade and Cooperation with Developing Countries, acting as Agent, with an address for service in Luxembourg at the Belgian Embassy, 4, Rue des Girondins,

defendant,

APPLICATION for a declaration that, by maintaining in the legislation applicable to the Flemish Community requirements contrary to Community law as regards the broadcasting of television programmes on cable television networks and the conditions applicable to non-public television stations, the Kingdom of Belgium has failed to fulfil its obligations under Articles 52, 59, 60 and 221 of the EEC Treaty,

THE COURT,

composed of: O. Due, President, G.C. Rodríguez Iglesias and J.L. Murray (Presidents of Chambers), G.F. Mancini, R. Joliet, F.A. Schockweiler, J.C. Moitinho de Almeida, F. Grévisse and D.A.O. Edward, Judges,

Advocate General: G. Tesauro,

Registrar: H. von Holstein, Deputy Registrar,

having regard to the Report for the Hearing,

after hearing oral argument from the parties at the hearing on 10 November 1992, at which the Kingdom of Belgium was represented by J. Stuyck of the Brussels Bar,

after hearing the Opinion of the Advocate General at the sitting on 24 November 1992,

gives the following

Judgment

Grounds

1 By application lodged at the Court Registry on 8 August 1991, the Commission of the European Communities brought an action under Article 169 of the EEC Treaty for a declaration that, as regards the legislation applicable in the Flemish Community, the Kingdom of Belgium had failed to fulfil its obligations under Articles 52, 59, 60 and 221 of the EEC Treaty,

° by prohibiting the transmission on a broadcasting network of television programmes of broadcasting services from other Member States where the programme is not in the language or one of the languages of the Member State in which the broadcasting service is established,

° by making the transmission on a broadcasting network of television programmes of non-public broadcasting services from other Member States subject to prior authorization, to which conditions may be attached,

° by reserving 51% of the capital of the non-public television broadcasting company which serves the entire Flemish Community to publishers of Dutch-language daily and weekly newspapers whose registered office is situated in the Dutch-speaking region or in the bilingual Brussels region,

° and by defining in a discriminatory manner own cultural productions which constitute a compulsory part of the programmes of non-public television broadcasting companies.

2 2 The Belgian Government does not contest the last three complaints.

3 3 Reference is made to the Report for the Hearing for a fuller account of the facts of the case, the legislation at issue, the procedure and the pleas in law and arguments of the parties, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court.

The first complaint: the requirement concerning the language of the programmes

4 4 The first complaint concerns the prohibition imposed on cable television companies on broadcasting on their networks programmes from radio or television broadcasting stations in other Member States where the programmes are not transmitted in the language or one of the languages of the Member State in which the station is established. That prohibition is laid down in Articles 3 and 4 of the Decree of the Flemish Community of 28 January 1987 concerning the transmission of radio and television programmes on radio and cable television networks and the approval of non-public television broadcasting companies (Moniteur Belge of 19 March 1987, p. 4196).

5 It is important to note that the legislation in question constitutes a barrier to the freedom to provide services in that it prevents broadcasting stations established in other Member States from having programmes that are transmitted in a language other than that of the country in which they are established relayed by the cable networks of the Flemish Community.

6 That barrier is discriminatory not only because, as the Belgian Government admits, it does not apply to broadcasting stations established in Belgium but above all because it prevents stations established in a Member State other than the Netherlands from offering programmes in Dutch to audiences in the Flemish Community, when that possibility naturally exists for national broadcasting stations.

7 The Belgian Government, however, relies upon cultural policy objectives to justify the legislation in question, namely the maintenance of pluralism in the printed press, which benefits directly from the advertising revenue of the national television broadcasting stations, the preservation and development of the artistic heritage and the viability of the national broadcasting stations.

8 Those arguments cannot be accepted.

9 The first and third cultural policy objectives adduced by the Belgian Government reveal that in reality the purpose of the measure complained of is to restrict genuine competition with the national broadcasting stations in order to maintain their advertising revenue. As regards the objective of preserving and developing the artistic heritage, suffice it to note, as does the Commission, that the measure complained of is in reality likely to reduce demand for television productions in Dutch.

10 Moreover, the justifications put forward by the Belgian Government do not come within any of the grounds for exemption from the freedom to provide services permitted by Article 56, namely public policy, public security and public health.

11 As the Court has consistently held (see, in particular, the judgment in Case 288/89 Collectieve Antennevoorziening Gouda v Commissariaat voor de Media [1991] ECR I-4007, paragraph 11), those exemptions alone can effectively be relied upon to justify national rules which are not applicable to services without distinction as regards their origin.

12 The argument that the Belgian Government seeks to derive from the judgment in Case 33/74 Van Binsbergen v Bedrijfsvereniging Metaalnijverheid [1974] ECR 1299, according to which a person providing services cannot avoid the rules applicable to providers of services established in the Member State towards which his activity is directed, cannot be accepted. While it is true that, according to paragraph 13 of that judgment, the State in which the service is provided may take measures to prevent a provider of services whose activity is entirely or principally directed towards its territory from exercising the freedom guaranteed by Article 59 for the purpose of avoiding the professional rules which would be applicable to him if he were established within that State, it does not follow that it is permissible for a Member State to prohibit altogether the provision of certain services by operators established in other Member States, as that would be tantamount to abolishing the freedom to provide services.

13 The Commission' s first complaint must accordingly be accepted.

The other three complaints

14 As the defendant Government itself concedes, on the expiry of the time-limit set in the reasoned opinion the implementing legislation in the Flemish Community was not in conformity with Articles 59 and 60 of the Treaty as regards the second complaint, with Articles 52 and 221 as regards the third and with Article 59 as regards the fourth.

15 Accordingly these three complaints must also be upheld, and it must therefore be held that the Kingdom of Belgium has failed to fulfil its obligations in the terms set out in the Commission' s application.

Decision on costs

Costs

16 Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs. Since the defendant has failed in its submissions, it must be ordered to pay the costs.

Operative part

On those grounds,

THE COURT

hereby:

1. Declares that, as regards the legislation applicable in the Flemish Community, the Kingdom of Belgium has failed to fulfil its obligations under Articles 52, 59, 60 and 221 of the EEC Treaty,

° by prohibiting the transmission on a broadcasting network of television programmes of broadcasting services from other Member States where the programme is not in the language or one of the languages of the Member State in which the broadcasting service is established,

° by making the transmission on a broadcasting network of television programmes of non-public broadcasting services from other Member States subject to prior authorization, to which conditions may be attached,

° by reserving 51% of the capital of the non-public television broadcasting company which serves the entire Flemish Community to publishers of Dutch-language daily and weekly newspapers whose registered office is situated in the Dutch-speaking region or in the bilingual Brussels region,

° and by defining in a discriminatory manner own cultural productions which constitute a compulsory part of the programmes of non-public television broadcasting companies;

2. Orders the Kingdom of Belgium to pay the costs.