Judgment of the Court (Third Chamber) of 2 June 2005 in Case C-89/04: Reference for a preliminary ruling from the Raad van State in Mediakabel BV v Commissariaat voor de Media (Directive 89/552/CEE — Article 1(a) — Television broadcasting services — Scope of application — Directive 98/34/EC — Article 1(2) — Information society services — Scope of application)
Date: 2005-07-23
Institutions: Court of Justice
Subjects: approximation of laws, broadcasting, information society, interpretation of the law, service

C 182/16

EN

Official Journal of the European Union

23.7.2005

Judgments

1. Third-party proceedings between insurers based on multiple insur-
ance are not subject to the provisions of Section 3 of Title II of the
Convention of 27 September 1968 on Jurisdiction and the Enfor-
in Civil and Commercial Matters, as
cement of
amended by the Convention of 9 October 1978 on the accession
of the Kingdom of Denmark, Ireland and the United Kingdom of
Great Britain and Northern Ireland, by the Convention of 25
October 1982 on the accession of the Hellenic Republic, by the
Convention of 26 May 1989 on the accession of the Kingdom of
Spain and the Portuguese Republic and by the Convention of 29
November 1996 on the accession of the Republic of Austria, the
Republic of Finland and the Kingdom of Sweden.

2. Article 6(2) of the Convention is applicable to third-party proceed-
ings between insurers based on multiple insurance, in so far as
there is a sufficient connection between the original proceedings
and the third-party proceedings to support the conclusion that the
choice of forum does not amount to an abuse.

(1) OJ C 85 of 03.04.2004.

JUDGMENT OF THE COURT

(Third Chamber)

of 2 June 2005

in Case C-89/04: Reference for a preliminary ruling from
the Raad van State in Mediakabel BV v Commissariaat
voor de Media (1)

(Directive 89/552/CEE — Article 1(a) — Television broad-
casting services — Scope of application — Directive
98/34/EC — Article 1(2) — Information society services —
Scope of application)

(2005/C 182/30)

(Language of the case: Dutch)

In Case C-89/04: reference for a preliminary ruling under
Article 234 EC from the Raad van State (Netherlands), made by
decision of 18 February 2004, received at
the Court on
20 February 2004, in the proceedings between Mediakabel BV
and Commissariaat voor de Media — the Court
(Third
Chamber) composed of A. Rosas, President of the Chamber,
A. Borg Barthet, J. P. Puissochet (Rapporteur), S. von Bahr and

J. Malenovský,
Judges; A. Tizzano, Advocate General; M.
Ferreira, Principal Administrator, for the Registrar, gave a judg-
ment on 2 June 2005, in which it ruled:

as

activities,

1. The concept of ‘television broadcasting’ referred to in Article 1(a)
of Council Directive 89/552/EEC 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
amended by Directive
97/36/EC of the European Parliament and of the Council of 30
June 1997, is defined independently by that provision. It is not
defined by opposition to the concept of ‘information society service’
within the meaning of Article 1(2) of Directive 98/34/EC 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, as amended by Directive 98/48/EC of the Euro-
pean Parliament and of the Council of 20 July 1998, and there-
fore does not necessarily cover services which are not covered by the
latter concept.

2. A service comes within the concept of

‘television broadcasting’
referred to in Article 1(a) of Directive 89/552, as amended by
Directive 97/36, if it consists of the initial transmission of televi-
sion programmes intended for reception by the public, that is, an
indeterminate number of potential television viewers, to whom the
same images are transmitted simultaneously. The manner in which
the images are transmitted is not a determining element in that
assessment.

3. A service such as Filmtime, which consists of broadcasting televi-
sion programmes intended for reception by the public and which is
not provided at the individual request of a recipient of services, is a
television broadcasting service within the meaning of Article 1(a)
of Directive 89/552, as amended by Directive 97/36. Priority is
to be given to the standpoint of the service provider in the analysis
‘television broadcasting service’. However, the
of the concept of
situation of services which compete with the service in question is
not relevant for that assessment.

4. The conditions in which the provider of a service such as Filmtime
complies with the obligation referred to in Article 4(1) of Directive
89/552, as amended by Directive 97/36, to reserve for European
works a majority proportion of his transmission time are irrelevant
for the classification of that service as a television broadcasting
service.

(1) OJ C 94 of 17.04.2004.