Case C-90/04: Action brought on 23 February 2004 by the Commission of the European Communities against the Republic of Austria
Date: 2004-04-17
Institutions: Court of Justice
Subjects: Austria, European Commission, action for failure to fulfil an obligation, air quality, diesel fuel, international standard, pollution control, quality of the environment, sulphur

17.4.2004

EN

Official Journal of the European Union

C 94/27

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of the Raad van State (Council of
State) of 18 February 2004, received at the Court Registry on
20 February 2004, for a preliminary ruling in the case of
Mediakabel B.V. against Commissariaat voor de Media on the
following questions:

1 a. Is the term ‘television broadcasting’ within the meaning of
Article 1(a) of Directive 89/552/EEC (1) to be interpreted
as not covering an ‘information society service’ within the
meaning of Article 1(2) of Directive 98/34/EC (2), as
amended by Directive 98/48/EC (3), but as covering
services such as those set out in the indicative list of
services not
covered by Article 1(2) of Directive
including ‘near-video on-demand services’,
98/34/EC,
contained in Annex V to Directive 98/34/EC, in particular
subparagraph (3), which therefore do not constitute
‘information society services’?

1 b. If the answer to question 1a is in the negative, how
should a distinction be drawn between the term ‘televi-
sion broadcasting’ within the meaning of Article 1(a) of
Directive 89/552/EEC and the term ‘communication
services providing items of information or other messages
on individual demand’ also set out therein?

2 a. On the basis of which criteria must it be determined
whether a service such as that at issue, which involves
encoded signals, transmitted over a network, of a range of
films selected by the provider, which subscribers can, in
return for a separate payment per film and using a key
sent by the provider on individual demand, decode and
view at various times determined by the provider, and
which contains elements of an (individual) information
society service and also elements of a television broad-
casting service,
constitutes a television broadcasting
service or an information society service?

2 b. In this regard is particular significance to be attributed to
the standpoint of the subscriber or rather to that of the
service provider? Is the kind of services with which the
service concerned is in competition relevant
in this
regard?

3. In that connection is it relevant that,

— on the one hand, classification of a service such as
that at issue as an ‘information society service’ to
which Directive 89/552/EEC does not apply, might
undermine the effectiveness of that directive, in par-
the objectives underlying the
ticular as
requirement thereunder to reserve a specific percen-
tage of transmission time for European works, and,

regards

— on the other, if Directive 89/552/EEC does apply, the
requirement thereunder to reserve a specific percen-
tage of transmission time for European works is not
entirely apposite because the subscribers pay per film
and can only view the film which has been paid for?

(1) OJ L 298 of 17.10.1989, p. 23.
(2) OJ L 204 of 21.07.1998, p. 37.
(3) OJ L 217 of 5.08.1998, p. 18.

Action brought on 23 February 2004 by the Commission
of the European Communities against the Republic of
Austria

(Case C-90/04)

(2004/C 94/58)

Justice of

An action against the Republic of Austria was brought before
the Court of
the European Communities on 23
February 2004 by the Commission of the European Commu-
nities, represented by Josef Christian Schieferer and Gregorio
Valero Jordana, acting as Agents, with an address for service in
Luxembourg.

The applicant claims that the Court should:

1. declare that, by failing hitherto to supply to the Commission
the report required by 30 June 2002 under Article 7(1) of
Council Directive 1999/32/EC of 26 April 1999 relating to
a reduction in the sulphur content of certain liquid fuels
and amending Directive 93/12/EEC (1),
the Republic of
Austria has failed to fulfil its obligations under Article 7(1)
of that Directive.

2. order the Republic of Austria to bear the costs of the action.

Pleas in law and main arguments

Under Article 7(1) of Directive 1999/32/EC the Member States
are to supply to the Commission by 30 June of each year, on
the basis of the results of the sampling and analysis carried out
in accordance with Article 6, a short report on the sulphur
content of the liquid fuels falling within the scope of the Direc-
territory during the preceding
tive and used within their
calendar year.

The Republic of Austria was accordingly to have supplied the
first report for 2001 by 30 June 2002. The Republic of Austria
had not complied with this requirement by the time the
present action was brought and so has failed to fulfil its obliga-
tions under Article 7(1) of Directive 1999/32/EC.

(1) OJ 1999 L 121, p. 13.

Action brought on 25 February 2004 by the Commission
of the European Communities against the Kingdom of
Sweden

(Case C-91/04)

(2004/C 94/59)

Justice of

An action against the Kingdom of Sweden was brought before
the Court of
the European Communities on 25
February 2004 by the Commission of the European Commu-
nities, represented by K. Banks and K. Simonsson, acting as
Agents, with an address for service in Luxembourg.

The Commission claims that the Court should:

1. declare that, by failing to adopt, or to communicate to the
Commission, the laws, regulations and administrative provi-
sions necessary to implement Directive 2001/29/EC (1) of