OPINION OF ADVOCATE GENERAL

SZPUNAR

delivered on 5 July 2018 ( 1 )

Case C‑298/17

France Télévisions SA

v

Playmédia,

Conseil supérieur de l’audiovisuel (CSA)

other party to the proceedings

Ministry of Culture and Communications

(Request for a preliminary ruling from the Conseil d’État (Council of State, France))

(Reference for a preliminary ruling — Directive 2002/22/EC — Electronic communications networks and services — Universal service and users’ rights — Concept of undertakings providing electronic communications networks used for the distribution of radio or television broadcasts to the public — Undertaking offering live streaming of television programmes online — ‘Must-carry’ obligation)

Introduction

1. In order to promote cultural diversity and universal public access to the principal radio and television channels, the Member States are entitled to impose on electronic communications providers a ‘must carry’ obligation in relation to the distribution of some of those channels. At present, however, the internet makes it possible to distribute and obtain free access to an increasing number of sources of information, including radio and television, without the technical constraints associated with modes of transmission which have rapidly become ‘traditional’, such as terrestrial, cable or satellite broadcasting. This technological development has changed the face of the audiovisual landscape, transforming the obligation to distribute into a privilege and those subject to that obligation into potential beneficiaries. ( 2 ) The question therefore arises as to whether, and if so under what conditions, the rules devised for those traditional modes of transmission are applicable in the new internet environment.

2. The present case is a perfect illustration of this state of affairs and gives the Court an opportunity to clarify the position of EU law in this regard.

Legal framework

EU law

3. According to Article 3(1) and (2) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society: ( 3 ) ‘1. Member States shall provide authors with the exclusive right to authorise or prohibit any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access them from a place and at a time individually chosen by them. 2. Member States shall provide for the exclusive right to authorise or prohibit the making available to the public, by wire or wireless means, in such a way that members of the public may access them from a place and at a time individually chosen by them: (a) for performers, of fixations of their performances; (b) for phonogram producers, of their phonograms; (c) for the producers of the first fixations of films, of the original and copies of their films; (d) for broadcasting organisations, of fixations of their broadcasts, whether these broadcasts are transmitted by wire or over the air, including by cable or satellite.’

4. Article 1(1) and (3) of Directive 2002/21/EC 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), ( 4 ) provides: ‘1. This Directive establishes a harmonised framework for the regulation of electronic communications services, electronic communications networks, associated facilities and associated services, and certain aspects of terminal equipment to facilitate access for disabled users. It lays down tasks of national regulatory authorities and establishes a set of procedures to ensure the harmonised application of the regulatory framework throughout the Community. … 3. This Directive as well as the Specific Directives are without prejudice to measures taken at Community or national level, in compliance with Community law, to pursue general interest objectives, in particular relating to content regulation and audiovisual policy.’

5. Under Article 2(a), (c), (l) and (m), of that directive: ‘For the purpose of this Directive: (a) “electronic communications network” means transmission systems and, where applicable, switching or routing equipment and other resources, including network elements which are not active, which permit the conveyance of signals by wire, radio, optical or other electromagnetic means, including satellite networks, fixed (circuit- and packet-switched, including Internet) and mobile terrestrial networks, electricity cable systems, to the extent that they are used for the purpose of transmitting signals, networks used for radio and television broadcasting, and cable television networks, irrespective of the type of information conveyed; … (c) “electronic communications service” means a service normally provided for remuneration which consists wholly or mainly in the conveyance of signals on electronic communications networks, including telecommunications services and transmission services in networks used for broadcasting, but exclude services providing, or exercising editorial control over, content transmitted using electronic communications networks and services; it does not include information society services, as defined in Article 1 of Directive 98/34/EC [ ( 5 )] which do not consist wholly or mainly in the conveyance of signals on electronic communications networks; … (1) “Specific Directives” means … Directive 2002/22/EC ( 6 ) (Universal Service Directive) …; (m) “provision of an electronic communications network” means the establishment, operation, control or making available of such a network; …’

6. According to the first paragraph of Article 2 of Directive 2002/22: ‘For the purposes of this Directive, the definitions set out in Article 2 of Directive [2002/21] shall apply.’

7. The first subparagraph of Article 31(1) of that directive provides: ‘Member States may impose reasonable “must carry” obligations, for the transmission of specified radio and television broadcast channels and complementary services, particularly accessibility services to enable appropriate access for disabled end-users, on undertakings under their jurisdiction providing electronic communications networks used for the distribution of radio or television broadcast channels to the public where a significant number of end-users of such networks use them as their principal means to receive radio and television broadcast channels. Such obligations shall only be imposed where they are necessary to meet clearly defined general interest objectives and shall be proportionate and transparent.’

French law

8. Article 2-1 of Law No 86-1067 of 30 September 1986 on freedom of communication, ( 7 ) provides: ‘For the purposes of this Law, “service distributor” means any person who enters into a contractual relationship with a service provider with a view to making audiovisual communication services available to the public through an electronic communications network within the meaning of Article L. 32-2 of the Postal and Electronic Communications Code. Any person who makes such services available by entering into a contractual relationship with other distributors shall also be considered to be a service distributor.’

9. According to Article 34-2, I, of the Law on freedom of communication: ‘In metropolitan France, service distributors on a network not using terrestrial frequencies allocated by the CSA must make available to subscribers free of charge the services of the companies referred to in Article 44-1 and the channel Arte, broadcast via a land radio relay channel in analogue mode, as well as channel TV5 and television services broadcast via a land radio relay channel in digital mode for the purpose of improving awareness of French overseas departments, specifically intended for the general public of metropolitan France and produced by the company referred to in Article 44-1, except where those suppliers consider the provision of those services to be manifestly incompatible with observance of their public service responsibilities. Where they offer digital broadcast services, distributors must also make available to subscribers free of charge the services of those undertakings which are broadcast via a land radio relay channel in digital mode. …’

The dispute in the main proceedings, the procedure and the questions referred for a preliminary ruling

10. France Télévisions is the public radio and television broadcasting organisation whose television channels benefit from the ‘must-carry’ obligation laid down in Article 34-2 of the Law on freedom of communication. In addition to traditional terrestrial broadcasting, France Télévisions also streams its television channels on its website.

11. Playmédia operates a website on which it offers, inter alia, real-time streaming of a number of television channels, including channels belonging to France Télévisions. Access to that site is free of charge, as Playmédia finances its business through advertising.

12. Its requests to conclude a distribution agreement with France Télévisions having been unsuccessful, Playmédia took legal action against France Télévisions in order to secure the conclusion of such an agreement, relying on the obligation incumbent on France Télévisions under Article 34-2 of the Law on freedom of communication to allow its channels to be broadcast by Playmédia. France Télévisions brought against Playmédia counterclaims based on infringement of its intellectual property rights.

13. Having been unsuccessful, at first instance and on appeal, in relation to its own claims and those brought by France Télévisions, Playmédia lodged an appeal on a point of law. By judgment of 5 July 2017, the Cour de cassation (Court of Cassation, France) decided to stay the proceedings relating to the appeal on a point of law pending the decision of the Court of Justice in the present case.

14. While the judicial proceedings mentioned above were in progress, Playmédia applied to the Conseil supérieur de l’audiovisuel (CSA) (French broadcasting regulator) to have its dispute with France Télévisions settled. Following a minor change to the way in which the Playmédia website operates, as considered necessary by the regulator, the CSA, by decision of 27 May 2015, gave France Télévisions formal notice not to oppose the resumption of its services on the Playmédia website. France Télévisions brought an action for the annulment of that decision before the Conseil d’État (Council of State, France).

15. It was in those circumstances that the Conseil d’État (Council of State, France) decided to stay the proceedings and refer the following questions to the Court for a preliminary ruling: ‘(1) Must an undertaking that offers live streaming of television programmes online be regarded, on the basis of that fact alone, as an undertaking providing an electronic communications network used for the distribution of radio or television broadcasts to the public within the meaning of Article 31(1) of Directive [2002/22]? (2) If the answer to the first question is in the negative, can a Member State, without infringing … Directive [2002/22] or other provisions of EU law, impose an obligation for the distribution of radio and television services on both undertakings providing electronic communications networks and on undertakings which, without providing such networks, offer live streaming of television programmes online? (3) If the answer to the second question is in the affirmative, [is it] open to the Member States not to make the “must carry” obligation, on the part of service distributors not providing electronic communications networks, subject to all the conditions laid down in Article 31(1) of Directive [2002/22], even though the fulfilment of those conditions is required on the part of network operators under the Directive? (4) Can a Member State imposing a “must carry” obligation for the transmission of certain radio or television services on certain networks impose, without infringing [… D]irective [2002/22], an acceptance requirement for the distribution of those services on those networks, including distribution online, where the service in question already distributes its own programmes online? (5) With regard to distribution online, must the condition requiring a significant number of end-users of networks subject to the “must carry” obligation to use them as their principal means of receiving radio and television broadcasts, set out in Article 31(1) of Directive [2002/22], be assessed in relation to all users viewing television programmes streamed live online, or only in relation to users of the site subject to the “must carry” obligation?’

16. The request for a preliminary ruling was received at the Court on 23 May 2017. Written observations have been submitted by France Télévisions, Playmédia, the French, Lithuanian and Polish Governments, and the European Commission. France Télévisions, Playmédia, the French Government and the Commission were represented at the hearing which took place on 30 May 2018.

Analysis

The first question referred

17. By its first question, the referring court asks the Court whether an undertaking offering live streaming of television programmes online must be regarded as an undertaking providing an electronic communications network used for the distribution of radio or television broadcast channels to the public within the meaning of the first subparagraph of Article 31(1) of Directive 2002/22.

18. Like all the parties which have submitted observations in this case, other than Playmédia, I take the view that this question must be answered in the negative.

19. The directives forming the common regulatory framework for electronic communications networks and services, of which Directive 2002/22 is one, are based on a very clear distinction between provision of the infrastructure for those networks, on the one hand, and provision of the content distributed over those networks or of other services provided via those networks, on the other hand. That distinction is apparent from several provisions in the directives in question.

20. Thus, recital 5 of Directive 2002/21 states that ‘it is necessary to separate the regulation of transmission from the regulation of content’. The common regulatory framework for electronic communications networks ‘does not therefore cover the content of services delivered over electronic communications networks using electronic communications services’. That distinction is reflected, next, in Article 1(3) of Directive 2002/21, which provides that that directive as well as the Specific Directives are without prejudice to the measures taken to pursue general interest objectives, in particular relating to content regulation and audiovisual policy. Finally, the definition of the electronic communications services covered by the common regulatory framework, which is contained in Article 2(c) of Directive 2002/21, expressly excludes ‘services providing, or exercising editorial control over, content transmitted using electronic communications networks and services’. As regards information society services, ( 8 ) that definition does not include those ‘which do not consist wholly or mainly in the conveyance of signals on electronic communications networks’.

21. So far as concerns the ‘must-carry obligation’, the exclusion of services consisting in the provision of content is to be found in Directive 2002/22. Thus, recital 45 of that directive expressly states that ‘[s]ervices providing content such as the offer for sale of a package of sound or television broadcasting content are not covered by the common regulatory framework for electronic communications networks and services. Providers of such services should not be subject to universal service obligations in respect of these activities’.

22. That is the context, therefore, in which Article 31 of Directive 2002/22, which establishes the possibility of imposing ‘must-carry’ obligations, is to be interpreted. That provision allows such obligations to be imposed on ‘undertakings … providing electronic communications networks used for the distribution of radio or television broadcasts to the public’. The provision of an electronic communications network is defined in Article 2(m) of Directive 2002/21 as ‘the establishment, operation, control or making available of such a network’.

23. It is clear that an undertaking which offers online streaming of television programmes does not provide an electronic communications network but supplies content which is conveyed to its users via such a network (in this case, the internet). Consequently, such an undertaking is not a provider but a user of such a network. The service it provides is manifestly an information society service but not one which consists either wholly or mainly in the conveyance of signals, the latter being supplied by internet access providers. Any confusion between those two activities would run counter to the neutrality of internet access providers in relation to the content transmitted, as required in Article 12 of Directive 2000/31. ( 9 )

24. Playmédia is therefore wrong to say that it operates an electronic communications network within the meaning of Article 2(m) of Directive 2002/21 and that it is therefore subject to the ‘must-carry’ obligation laid down in Article 31 of Directive 2002/22. When that provision refers to ‘operation’, it has in mind the running of the network for remuneration, and thus presupposes a degree of control over how the network is run. A user whose role is confined to offering content accessible via the network in question does not exercise such control and cannot therefore be regarded as being the operator of that network. Contrary to Playmédia’s assertion in its observations, the fact that it uses a network in order to meet the needs of its business is not sufficient to support the claim that it operates or provides that network. Similarly, Playmédia’s business consists not in the conveyance of signals over a network (internet) but in their production. Those signals are conveyed by network and network access providers, who thus provide an electronic communications service, within the meaning of Article 2(c) of Directive 2002/21, both to Playmédia and to its subscribers.

25. I therefore propose that the answer to the first question referred for a preliminary ruling should be that the first subparagraph of Article 31(1) of Directive 2002/22 must be interpreted as meaning that an undertaking which offers live streaming of television programmes online is not to be regarded as an undertaking providing an electronic communications network used for the distribution of radio or television broadcast channels to the public within the meaning of that provision.

The second and fourth questions referred

Preliminary remarks

26. By its second question, the referring court asks the Court, in essence, whether Directive 2002/22 or any other provision of EU law precludes a Member State from imposing a ‘must carry’ obligation similar to that laid down in Article 31 of that directive on undertakings which, although falling outside the scope of that provision, offer live streaming of television programmes online.

27. It is, after all, common ground that the scope of the ‘must carry’ obligation as laid down in Article 34-2 of the Law on freedom of communication is broader than that of Article 31 of Directive 2002/22 and concerns not only network providers, but also undertakings offering access to television channels on those networks. However, contrary to the fears expressed by the French Government at the hearing in particular, I understand this question as seeking an assessment of the lawfulness of that obligation not from the point of view of EU law in general but only in so far as it is applied to undertakings offering online streaming of television programmes in circumstances where the television organisations concerned already distribute those programmes online on an open access basis.

28. The inevitable corollary of such a ‘must-carry’ obligation is to impose on the television broadcasters concerned an obligation to allow their programmes to be distributed by undertakings subject to the ‘must-carry’ obligation. Indeed, it is interesting to note that, at present, the (‘must-offer’) obligation thus imposed on television broadcasters often plays a far more important role, on the internet in particular, than the distribution (‘must-carry’) obligation itself. After all, the main reason for introducing the ‘must-carry’ obligation, which had to do originally with limited network transmission capacity, does not exist in the case of the internet. On the contrary, in the competitive environment of the internet, undertakings are on the lookout for attractive content capable of generating traffic on their websites and thus increasing their advertising revenue. It therefore works very much in their favour to be subject to the ‘must-carry’ obligation, or rather, as Playmédia itself put it in its observations, to benefit from that obligation, in the same way as they benefit from the ‘must-offer’ obligation incumbent on television organisations.

29. For that reason, I think it would be appropriate to analyse the second question referred in conjunction with the fourth in order to examine the compatibility of both the ‘must-carry’ obligation and the ‘must-offer’ obligation. The question would then be whether Directive 2002/22 or any other provision of EU law precludes a Member State from imposing a distribution obligation on undertakings not falling within the scope of Article 31 of that directive which offer live streaming of television programmes online, that obligation being accompanied by the reciprocal obligation on the television broadcasters concerned not to oppose such distribution.

30. I should point out straight away that the referring court does not specify the provisions of EU law, other than Directive 2002/22 itself, which might preclude such an obligation. Although some of the parties who have submitted observations, in particular the Commission, have briefly addressed a number of potential legal issues, this question has not been the subject of extensive debate either in the course of the main proceedings or in the present proceedings. However, some indications as to the compatibility of the ‘must-carry’ obligation can be drawn here and now from the Court’s case-law on the freedom to provide services. Moreover, as regards the issue of copyright, this, according to the information provided by the parties to the main proceedings, is the subject of separate proceedings at national level and, in this regard, the Court asked a specific question to be answered at the hearing. I shall therefore look at these two issues, inasmuch as it seems to me that they do raise a number of difficulties.

Directive 2002/22

31. As I have already mentioned in my analysis of the first question, the common regulatory framework for electronic communications networks and services draws a clear distinction between infrastructure provision, on the one hand, and content provision, on the other. It is only infrastructure provision which is governed by that regulatory framework, content remaining entirely outside its scope. The provisions of that common regulatory framework do not therefore preclude provisions on content, whether they are introduced at EU or national level. This is very clear from Article 1(3) of Directive 2002/21. That principle is also confirmed, in relation more specifically to the provisions on the ‘must-carry’ obligation, by the last sentence of recital 45 of Directive 2002/22.

32. It follows that the provisions of Directive 2002/22 do not preclude, as such, a ‘must-carry’ obligation which might be imposed by a Member State on undertakings not falling within the scope of Article 31 of that directive.

Freedom to provide services

33. It follows from the Court’s case-law that any ‘must-carry’ obligation of this nature, whether or not it falls within the scope of Directive 2002/22, constitutes a restriction on the freedom to provide services established in Article 56 TFEU. ( 10 ) This is the case notwithstanding the fact that that obligation is imposed on national undertakings alone, because it directly determines the conditions of access to the market for services in a Member State. ( 11 ) After all, the ‘must- carry’ obligation usually affects national television channels, since these are the organisations that put into effect the cultural policy objectives on which that obligation is based. Foreign television broadcasters are thus in a less favourable position inasmuch as, although they are not affected by the obligation in question, they must negotiate access to the distribution networks under market conditions.

34. Such a restriction may be justified, in particular, by overriding cultural policy reasons in the general interest. ( 12 ) However, in order for the ‘must-carry’ obligation to be justified, that restriction must fulfil certain requirements: it must pursue an aim in the general interest, such as the retention, pursuant to the cultural policy of the Member State, of the pluralist character of the television programmes available in that territory; and it must not be disproportionate in relation to that objective, which means that the manner in which it is applied must be subject to a transparent procedure based on objective non-discriminatory criteria known in advance. ( 13 )

35. It is for the national courts to verify whether those conditions are met. However, in circumstances such as those in the main proceedings, where the television organisation concerned distributes its own programmes on an open access basis online, while the undertaking subject, if that is the case, to the ‘must-carry’ obligation distributes those programmes by means of an internet link to the website of the television broadcaster in question, it might legitimately be asked whether the ‘must-carry’ obligation is still in the general interest. Would, for example, an obligation imposed on the television organisation concerned, which is a public undertaking, to distribute its programmes on an open access basis online, as it does in any event, not be sufficient?

36. In its original incarnation, the ‘must-carry’ obligation concerned the retransmission of television programmes distributed by one technical means (in principle, terrestrial transmission) through the use of a different technical means (cable or satellite transmission). It was justified by the fact that viewers using cable or satellite might not have the technical equipment necessary to receive the terrestrial broadcast or might be located outside the area covered by that broadcast. Moreover, television sets were not always able to use more than one means of reception at a time: use of cable excluded reception of terrestrial broadcasts. The ‘must-carry’ obligation would therefore have enabled viewers to access certain television channels irrespective of the technology they chose to use to receive them.

37. Those considerations no longer have any currency in a situation where both the original distribution and any further distribution that is to be subject to the ‘must-carry’ obligation are effected by the same technical means, that is to say the internet. A viewer with internet access can access both the Playmédia and France Télévisions websites. France Télévisions’ programmes do not therefore have to be redistributed by Playmédia in order to enable viewers receiving television online to be able to access them.

38. It is true, as the French Government submits, that it might be more convenient for an internet user to be able to access the programmes of several television broadcasters on a single same website rather than having to navigate between the sites of the various broadcasters in question. It is legitimate to ask, however, whether such an argument, based on convenience, is such as to justify the constraints imposed both on undertakings subject to the ‘must-carry’ obligation (attendant upon which, for example, is the requirement to obtain the consent of copyright holders) and on the television broadcasters concerned as a result of the ‘must-offer’ obligation. This factor should be taken into account by the referring court when assessing the proportionality of any imposition of the ‘must-carry’ obligation on undertakings providing online transmission of television programmes.

39. Finally, I would recall the opinion expressed by the French Government in its observations to the effect that the ‘must-carry’ obligation laid down in French law does not apply to undertakings such as Playmédia. That opinion is contrary to the opinion of the CSA, the French broadcasting regulator. Moreover, although the Court clearly does not have jurisdiction to interpret the national laws of the Member States, I must make the point that Article 34-2 of the Law on freedom of communication seems to require the retransmission of programmes distributed by terrestrial transmission, whereas Playmédia simply provides a link to France Télévisions’ website.

40. It is true that the rules governing the imposition of such obligations, whether they are based on Article 31 of Directive 2002/22 or derive from the Court’s case-law, are primarily intended to protect undertakings subject to those obligations from disproportionate charges. In the internet context as described in point 28 above, however, those rules must also ensure legal certainty for the television broadcasters concerned. According to the Court’s case-law which I have already cited, the ‘must-carry’ obligation is to be applied in accordance with a transparent procedure based on objective, non-discriminatory criteria known in advance. It cannot, therefore, in my opinion, be imposed — or, to use another term, granted — by an individual measure at the request of an undertaking looking for access to attractive content if it is not certain that the undertaking in question is covered by the provision of national law establishing that obligation.

Copyright

41. Television broadcasters enjoy certain rights related to copyright over their broadcasts. ( 14 ) Moreover, those broadcasts may constitute or contain works which are themselves protected by copyright or other related rights. ( 15 ) Normally, television broadcasters obtain the copyright holders’ consent to use those works in the course of their broadcasting. Those works otherwise continue to enjoy copyright protection.

42. It is true, as Playmédia submits, that, in the context of the ‘must-carry’ obligation, the issue of copyright arises irrespective of whether this is an obligation which applies to ‘traditional’ network providers or to undertakings transmitting television programmes online. However, the changes mentioned in point 28 of this Opinion in connection with the relationship between the ‘must-carry’ obligation, on the one hand, and the ‘must-offer’ obligation, on the other, have also altered the position in relation to copyright. After all, at the time when the ‘must-carry’ obligation clearly operated in favour of the television broadcasters concerned, by allowing them to distribute their programmes more widely, those broadcasters, as copyright holders, were inclined to give their consent to providers subject to that obligation. Copyright continued to be respected and did not raise any serious issues in the context of the ‘must-carry’ obligation. The position is different where that obligation represents more of an advantage for the undertakings subject to it. Television broadcasters may oppose the redistribution of their programmes by content providers they may regard as being their competitors, on the advertising market, for example. Copyright might therefore be an obstacle to fulfilment of the ‘must-carry’ obligation. This issue must be taken into account in the imposition and performance of that obligation.

43. It is clear from the Court’s case-law that a retransmission of television programmes by means of a live internet stream constitutes a communication to the public of the works contained in those programmes within the meaning of Article 3 of Directive 2001/29. ( 16 ) The same is true of the retransmission of television channels subject to public service obligations. ( 17 ) National legislation depriving works contained in the broadcasts of those channels of copyright protection would therefore be incompatible with that provision of EU law. ( 18 )

44. It follows from the foregoing that the online retransmission of television programmes by an undertaking other than the original television broadcaster constitutes, in principle, a communication to the public within the meaning of Article 3 of Directive 2001/29. National legislation cannot therefore impose a ‘must-carry’ obligation on undertakings engaged in such retransmissions, and an obligation not to oppose such distribution on the television broadcasters concerned, without requiring those undertakings to obtain the prior consent of the copyright holders.

45. Contrary to what Playmédia submits in its observations, the ‘must-carry’ obligation does not take precedence over the copyright and related rights protecting television broadcasts and the works contained in them. Such precedence does not follow from any EU law provision on copyright. The fact that an undertaking is subject to the ‘must-carry’ obligation does not release it from other statutory obligations associated with the activity of distributing television programmes, including the obligation to obtain the consent of the copyright holder concerned.

46. This is particularly true in a situation such as that in the main proceedings, where the ‘must-carry’ obligation attaches not to network providers falling within the scope of Article 31 of Directive 2002/22, but to content providers not falling within the scope of that provision. For, unlike network providers, which simply transmit signals without regard to the content transmitted, content providers engage in the commercial exploitation of the works included in that content, which sits squarely within the ambit of the exclusive rights enjoyed by copyright holders. A ‘must-carry’ obligation cannot therefore be imposed on such undertakings unless those exclusive rights are respected.

47. It is true that the position adopted by the Court, as indicated in point 43 of this Opinion, seems to have been somewhat relaxed by the judgment in AKM. ( 19 ) In that judgment, after all, the Court held that a simultaneous, full and unaltered transmission of programmes broadcast by the national broadcaster, by means of cables in the national territory, that is to say, by a technical means different from that used for the initial broadcast transmission, does not constitute a communication to the public within the meaning of Article 3(1) of Directive 2001/29, as the public to which that transmission is made cannot be regarded as a new public. ( 20 ) However, this finding seems to rest on the condition, the fulfilment of which the Court left the referring court to verify, that the copyright holders had indeed taken into account the retransmission at issue when authorising the original broadcast. ( 21 )

48. The judgment in AKM is not entirely clear in this regard. Any other interpretation, however, would represent a plain reversal of the rule arising from the judgment in ITV Broadcasting and Others, ( 22 ) according to which the question of the existence of a new public is not relevant where the technical means used is different. There is nothing in the judgment in AKM to indicate that the Court intended to reverse that rule. ( 23 )

49. In the dispute in the main proceedings, the copyright holders do not seem to have taken into account the retransmission of France Télévisions’ programmes by Playmédia, given that this is currently the subject of legal proceedings before the Cour de cassation (Court of Cassation). In any event, it cannot be assumed that they took into account the retransmission of those programmes for the purposes of a ‘must-carry’ obligation going beyond that laid down in Article 31 of Directive 2002/22. This is the case in particular because, according to the observations submitted in the present case, it is not certain that undertakings such as Playmédia are covered by that obligation under French domestic law. According to the French Government, they are not, a position which is at odds with the decision at issue in the main proceedings. That decision, moreover, was given only at the request of Playmédia, which had an interest in being able to include France Télévisions’ programmes in its offering. It is very difficult for copyright holders to foresee which undertakings active on the internet may have an interest in the retransmission of broadcasts that include their works.

50. The fact that France Télévisions also retransmits its programmes live on its own website does nothing to alter that finding. Indeed, since Playmédia’s online retransmission is independent of France Télévisions’ own, it must be regarded as being carried out by a different technical means and must, therefore, be analysed separately from the point of view of copyright.

51. That finding is not called into question by Playmédia’s assertion that, since 2014, it has been retransmitting France Télévisions’ programmes not by picking up the terrestrial distribution of those programmes but by means of a link to France Télévisions’ programmes as retransmitted on the latter’s website. The Court’s case-law would indicate that the creation of such links does not constitute a communication to the public within the meaning of Article 3 of Directive 2001/29 and does not therefore require the copyright holders’ consent.

52. This, however, is not one of the questions which have been put to the Court. The questions referred for a preliminary ruling in this case are concerned not with Playmédia’s business taken in isolation, but with whether or not the Member States are able to impose a ‘must-carry’ obligation on website operators. To my mind, such an obligation cannot be based on links to programmes retransmitted online, if only because not all programmes affected by such an obligation are necessarily retransmitted online by the original television broadcaster on a freely accessible basis. Moreover, any internet link is by definition dependent on its source. The television broadcaster would only have to stop retransmitting its programmes online or restrict access to them to make it impossible for the undertaking subject to the ‘must-carry’ obligation to fulfil that obligation. A ‘must-carry’ obligation based on internet links would not therefore be legally viable.

Proposed answer

53. I therefore propose that the answer to the second and fourth questions referred for a preliminary ruling should be that Directive 2002/22 must be interpreted as meaning that it does not preclude a Member State from imposing an obligation to distribute specific television programmes on undertakings offering live streaming of television programmes online. However, such an obligation must pursue an aim in the general interest, such as the retention, pursuant to the cultural policy of that Member State, of the pluralist character of the television programmes available in that territory, and must not be disproportionate in relation to that objective, which means that the manner in which it is applied must be subject to a transparent procedure based on objective non-discriminatory criteria known in advance. It is for the national courts to verify whether those conditions are met. Moreover, those undertakings must obtain the prior consent of the holders of the copyright or related rights protecting the works contained in those programmes.

The third question referred

54. By its third question, the referring court asks the Court whether a Member State which imposes a ‘must-carry’ obligation outside the scope of Article 31 of Directive 2002/22 is bound by the conditions to which such an obligation is subject under that article.

55. Article 31 of Directive 2002/22 forms an integral part of the common regulatory framework for electronic communications networks and services. It aims to protect undertakings providing such networks or services from disproportionate ‘must-carry’ obligations hampering their business and their cost-effectiveness. Any ‘must-carry’ obligation incumbent on undertakings which does not derive from that common framework is not subject to that regulatory framework. ( 24 ) Such an obligation cannot, therefore, be subject to the conditions laid down in Article 31 of Directive 2002/22.

56. Moreover, given that an undertaking such as Playmédia is not an electronic communications network provider but a content provider, any ‘must-carry’ obligation incumbent on such an undertaking would derive from the rules governing content and audiovisual policy. Consequently, to require national legislation regulating content to comply with the conditions laid down in Article 31 of Directive 2002/22 would be at odds with the express exclusion of that area from the common regulatory framework, as provided for in Article 1(3) of Directive 2002/21, ( 25 ) even though the national legislature is at liberty to apply those conditions of its own volition.

57. I therefore propose that the answer to the third question referred for a preliminary ruling should be that a Member State which imposes a ‘must-carry’ obligation outside the scope of Article 31(1) of Directive 2002/22 is not bound by the conditions to which such an obligation is subject under that article.

The fifth question referred

58. The fifth question concerns the condition to the effect that a significant number of end-users of networks who are subject to the ‘must-carry’ obligation must use those networks as their principal means of receiving television broadcasts. That condition is set out in Article 31 of Directive 2002/22. This question would therefore be relevant only if it were to follow from an answer to the first or third question to the effect that the conditions for imposing the ‘must-carry’ obligation laid down in that article are applicable in a situation such as that in the main proceedings. In the light of the answers I propose should be given to those two questions, there is no need to answer the fifth question.

Conclusion

59. In the light of all the foregoing considerations, I propose that the questions referred for a preliminary ruling by the Conseil d’État (Council of State, France) should be answered as follows: (1) The first subparagraph of Article 31(1) of Directive 2002/22/EC of the European Parliament and of the Council of 7 March 2002 on universal service and users’ rights relating to electronic communications networks and services (Universal Service Directive), as amended by Directive 2009/136/EC of the European Parliament and of the Council of 25 November 2009, must be interpreted as meaning that an undertaking which offers live streaming of television programmes online is not to be regarded as an undertaking providing an electronic communications network used for the distribution of radio or television broadcast channels to the public within the meaning of that provision. (2) Directive 2002/22, as amended by Directive 2009/136, must be interpreted as meaning that it does not preclude a Member State from imposing an obligation to distribute specific television programmes on undertakings offering live streaming of television programmes online. However, such an obligation must pursue an aim in the general interest, such as the retention, pursuant to the cultural policy of that Member State, of the pluralist character of the television programmes available in that territory, and must not be disproportionate in relation to that objective, which means that the manner in which it is applied must be subject to a transparent procedure based on objective non-discriminatory criteria known in advance. It is for the national courts to verify whether those conditions are met. Moreover, those undertakings must obtain the prior consent of the holders of the copyright or related rights protecting the works contained in those programmes. (3) A Member State which imposes a ‘must-carry’ obligation outside the scope of Article 31 of Directive 2002/22 is not bound by the conditions to which such an obligation is subject under that article.

( 1 ) Original language: French.

( 2 ) That change has been taking place over a long period. See Nikoltchev, S. (ed.), Avoir ou ne pas avoir les règles du must-carry, Observatoire européen de l’audiovisuel, Strasbourg, 2005.

( 3 ) OJ 2001 L 167, p. 10.

( 4 ) OJ 2002 L 108, p. 33, as amended by Directive 2009/140/EC of the European Parliament and of the Council of 25 November 2009 (OJ 2009 L 337, p. 37) (‘Directive 2002/21’).

( 5 ) Directive of the European Parliament and of the Council of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations and of rules on Information Society services (OJ 1998 L 204, p. 37), repealed and replaced by Directive (EU) 2015/1535 of the European Parliament and of the Council of 9 September 2015 laying down a procedure for the provision of information in the field of technical standards and regulations and of rules on Information Society services (OJ 2015 L 241, p. 1).

( 6 ) Directive 2002/22/EC of the European Parliament and of the Council of 7 March 2002 on universal service and users’ rights relating to electronic communications networks and services (Universal Service Directive) (OJ 2002 L 108, p. 51), as amended by Directive 2009/136/EC of the European Parliament and of the Council of 25 November 2009 (OJ 2009 L 337, p. 11) (‘Directive 2002/22’).

( 7 ) In the version thereof applicable to the dispute in the main proceedings.

( 8 ) Within the meaning of Directive 2015/1535.

( 9 ) Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (‘Directive on electronic commerce’) (OJ 2000 L 178, p. 1).

( 10 ) Judgment of 13 December 2007, United Pan-Europe Communications Belgium and Others (C‑250/06, EU:C:2007:783, paragraph 38).

( 11 ) Judgment of 13 December 2007, United Pan-Europe Communications Belgium and Others (C‑250/06, EU:C:2007:783, paragraphs 32 to 36).

( 12 ) Judgment of 13 December 2007, United Pan-Europe Communications Belgium and Others (C‑250/06, EU:C:2007:783, paragraphs 41 and 42).

( 13 ) Judgment of 13 December 2007, United Pan-Europe Communications Belgium and Others (C‑250/06, EU:C:2007:783, operative part).

( 14 ) Article 3(2)(d) of Directive 2001/29.

( 15 ) In particular, by the right of communication to the public provided for in Article 3 of Directive 2001/29.

( 16 ) Judgment of 7 March 2013, ITV Broadcasting and Others (C‑607/11, EU:C:2013:147, point 1 of the operative part).

( 17 ) Judgment of 1 March 2017, ITV Broadcasting and Others (C‑275/15, EU:C:2017:144, operative part).

( 18 ) Judgment of 1 March 2017, ITV Broadcasting and Others (C‑275/15, EU:C:2017:144, operative part).

( 19 ) Judgment of 16 March 2017 (C‑138/16, EU:C:2017:218).

( 20 ) Judgment of 16 March 2017, AKM (C‑138/16, EU:C:2017:218, paragraphs 18, 26, 29 and 30).

( 21 ) See judgment of 16 March 2017, AKM (C‑138/16, EU:C:2017:218, paragraphs 28 and 29, and first point of the operative part).

( 22 ) Judgment of 7 March 2013 (C‑607/11, EU:C:2013:147).

( 23 ) Indeed, that rule was confirmed after the judgment in AKM (C‑138/16, EU:C:2017:218) was delivered: see judgment of 29 November 2017, VCAST (C‑265/16, EU:C:2017:913, paragraphs 48 to 50).

( 24 ) Points 17 to 25 of this Opinion.

( 25 ) See, to that effect, judgment of 22 December 2008, Kabel Deutschland Vertrieb und Service (C‑336/07, EU:C:2008:765, paragraph 34).