Case C-245/01: Reference for a preliminary ruling by the Niedersächsisches Oberverwaltungsgericht by order of that court of 15 June 2001 in the case of RTL Television GmbH against Niedersächsische Landesmedienanstalt für privaten Rundfunk
Date: 2001-10-13
Institutions: Court of Justice
Subjects: advertising, artistic creation, audiovisual communications policy, broadcasting, interpretation of the law, television

13.10.2001

EN

Official Journal of the European Communities

C 289/9

— Failure to examine the principles of ‘dolo agit, qui petit,
quod statim redditurus est’ and ‘fraus omnia corrumpit’.
In the absence of a legally operative judgment imposing
a penalty the Commission is able to rely only on existing
suspicions and results of investigations, as soon as, and
in so far as, these are available. This the Commission did
in the present proceedings. By excluding, as a legal
objection, application of the legal principle ‘fraus omnia
corrumpit’ in conjunction with the legal principle ‘dolo
agit, qui petit, quod statim redditurus est’, in a case such
as the present (but without having examined that issue in
any detail), and instead calling for the adoption of a new
decision with a fresh statement of reasons, the Court of
First Instance is in effect obliging the Commission to pay
so long as its suspicions have not developed into
incontrovertible certainty. As a general rule, however,
any subsequent claim for repayment would fail on the
ground that the debtor has disappeared, no longer has
assets or has become insolvent.

2. What criteria must be satisfied for a broadcast of several
feature films and films made for television to be classified
as a ‘serial’, derogating from the advertising restrictions
for feature films and films made for television?

3. Are broadcasts consisting of several parts which manifest
a common concept due to common features of theme,
content and form, and which are broadcast at connected
times, to be regarded as a ‘serial’ for the purposes of
Article 11(3) of Directive 89/552/EEC as amended by
Directive 97/36/EEC?

4. Does the interpretation of

the term ‘serial’

for the
purposes of Article 11(3) of Directive 89/552/EEC as
amended by Directive 97/36/EEC permit common points
of theme or content of the episodes to be wholly or
largely regarded as unnecessary and predominantly points
of form or form of reception taken as the criterion?

(1) Not yet published in the European Court Reports.

(1) OJ 1989 L 298, p. 23.
(2) OJ 1997 L 202, p. 60.

Reference for a preliminary ruling by the Niedersächsi-
sches Oberverwaltungsgericht by order of that court of
15 June 2001 in the case of RTL Television GmbH against
Niedersächsische Landesmedienanstalt für privaten Rund-
funk

Reference for a preliminary ruling from the Landesgericht
Feldkirch by order of that court of 22 June 2001 in
the commercial register cases of (1) Hermann Pfanner
Getränke Gesellschaft mbH and Others and (2) Getränke-
betrieb Gesellschaft m.b.H. and Others v Republic of
Austria

(Case C-245/01)

(2001/C 289/16)

(Case C-248/01)

(2001/C 289/17)

Reference has been made to the Court of Justice of the
European Communities by order of the Niedersächsisches
Oberverwaltungsgericht (Lower Saxony Higher Administrative
Court) of 15 June 2001, which was received at the Court
Registry on 25 June 2001, for a preliminary ruling in the case
of RTL Television GmbH against Niedersachsische Landesme-
dienanstalt für privaten Rundfunk on the following questions:

1. Does Article 11(3) of Council Directive 89/552/EEC(1) 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 as amended by Directive 97/36/EC
of the European Parliament and of the Council (2) of
30 June 1997, by restricting advertising breaks, pursue
the objective of protecting the artistic value of feature
films and films made for television,
irrespective of
whether films made for television have from the outset
been produced for television and provided with breaks
designed for the insertion of advertising spots?

Reference has been made to the Court of Justice of the
European Communities by an order of the Landesgericht
Feldkirch (Regional Court, Feldkirch), Austria, of 22 June
2001, which was received at the Court Registry on 27 June
2001, for a preliminary ruling in the commercial register cases
of
(1) Hermann Pfanner Getränke Gesellschaft mbH and
Others and (2) Getränkebetrieb Gesellschaft m.b.H. and Others
v Republic of Austria on the following questions on the
validity of the First Council Directive 68/151/EEC (1) and the
Fourth Council Directive 78/660/EEC (2):

1.

Is the obligation of general disclosure of the annual
accounts of every capital company regardless of
its
economic circumstances compatible with the fundamental
and human rights guaranteed in Community law, funda-
mental freedoms and general principles of law of the
Member States, in particular the rights to data protection,
freedom of expression, informational self-determination,
private life, protection of business and commercial sec-
rets, property and freedom to carry on a trade, private
autonomy and compliance with the requirement of
reasonableness (proportionality)?