Case C-381/05: Reference for a preliminary ruling from the Cour d'appel de Bruxelles by judgment of that court of  13 October 2005  in De Lantsheer Emmanuel v Comite Interprofessionnel du vin de Champagne ( CIVC ) and Veuve Clicquot Ponsardin
Date: 2006-01-14
Institutions: Court of Justice
Subjects: comparative advertising, competition, interpretation of the law

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Official Journal of the European Union

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5. Do Article 9 of Directive 2002/21/EC (framework direc-
tive), the second subparagraph of Article 5(2) and Article
7(3) of Directive 2002/20/EC (authorisation directive), and
Article 4 of Directive 2002/77/EC (3), require the Member
States to arrange for the cessation, at least as from 25 July
2003 (see Article 17 of the authorisation directive), of a
situation in which frequencies are actually occupied (use of
facilities without grant of rights or authorisations issued
thus, with
following a comparison of
regard to the broadcasting system operated, is the conduct
of broadcasting precluded where there is no proper plan-
ning in regard to matters concerning the airwaves and no
logical increase in pluralism and contradictions with rights
actually awarded by the Member State following a public
procedure.

the applicants);

6. Is the derogation in the second subparagraph of Article
5(2) of Directive 2002/20/EC (authorisation directive), and
in Article 4 of Directive 2002/77/EC, available to be relied
on by the Member State solely in order to protect plur-
alism of information and to guarantee the protection of
cultural or linguistic diversity and not in favour of opera-
tors of networks in breach of the limits laid down in
national competition legislation.

7. In order to benefit from the derogation under Article 5 of
Directive 2002/20/EC, does the Member State have to indi-
cate the objectives actually pursued by the national deroga-
tory rules.

8. May that derogation be applied, in addition to the case of
the concessionary of the public broadcasting service (RAI
in Italy), in favour also of private operators not successful
in competitive procedures and to the detriment of under-
takings who may have duly been granted rights following
a competitive procedure?

9. Under Community rules (primary and secondary legisla-
tion) on workable competition in the broadcasting sector,
ought the national legislature to have avoided extending
the old transitory analogue system on the advent of the
terrestrial digital system (and the attendant generalised
transition to digital)? Only if analogue broadcasting is
ended and replaced by the switch to digital will
it be
possible to reallocate frequencies freed for various uses. If
terrestrial digital
is merely operated alongside analogue,
there will be an attendant accentuating of the scarcity of
available frequencies owing to the existence of analogue
and digital transmission in parallel (simulcast).

10. Lastly, is the pluralism of sources of information and of
competition in the broadcasting sector, which is guaran-
teed by European law, secured by national rules, such as
law no 112/2004 providing for a new limit of 20 percent
of resources linked to a new very wide criterion (the ICS
— integrated communications system — Article 2(g) and
Article 15 of law no 112/2004). This criterion also brings
in activities which do not affect media pluralism, whereas

under antitrust law the ‘relevant market’
is constructed
normally by differentiating the markets in the broadcasting
sector by drawing a distinction between pay/TV and non-
pay TV operating via the airwaves (reference is made inter
alia to the Commission cases COMP/JV. 37-BSKYB/Kirch
Pay TV Regulation (EEC) No 4064/89 Merger Procedure
21/03/2000 and COMP/M.2876-Newscorp-TELEPIU Regu-
lation (EEC) No 4064/89 Merger Procedure 2/04/2003.

(1) OJ L 108, de 24.4.2002, p. 21.
(2) OJ L 108, de 24.4.2002, p. 33.
(3) OJ L 249, de 17.9.2002, p. 21.

Reference for a preliminary ruling from the Cour d'appel
de Bruxelles by judgment of that court of 13 October
2005 in De Lantsheer Emmanuel v Comite Interprofes-
sionnel du vin de Champagne (‘CIVC’) and Veuve Clicquot
Ponsardin

(Case C-381/05)

(2006/C 10/20)

(Language of the case: French)

Reference has been made to the Court of Justice of the Euro-
pean Communities by judgment of the Cour d'appel de Brux-
elles (Brussels Court of Appeal) of 13 October 2005, received
at the Court Registry on 19 October 2005, for a preliminary
ruling in the proceedings between De Lantsheer Emmanuel and
Comite Interprofessionnel du vin de Champagne (‘CIVC’) and
Veuve Clicquot Ponsardin on the following questions:

1. Does the definition of comparative advertising cover adver-
tisements in which the advertiser refers only to a type of
product, so that in those circumstances such advertisements
must be regarded as referring to all undertakings which
offer that type of product, and each of them can claim to
have been identified?

2. With a view to determining whether there is a competitive
relationship between the advertiser and the undertaking to
which reference is made within the meaning of Article 2a of
Directive 84/450:

(a) On the basis in particular of a comparison of Article 2a
with paragraph (b) of Article 3a, should any undertaking
which can be identified in the advertising be regarded as
a competitor within the meaning of Article 2a, whatever
the goods or services it offers?

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(b) In the event of a negative response to that question and
if other conditions are required in order for a competi-
tive relationship to be established,
is it necessary to
consider the current state of the market and drinking
habits in the Community or is it necessary also to
consider how those habits might evolve?

(c) Must any investigation be confined to that part of the
Community territory in which the advertising is dissemi-
nated?

(d) Is it necessary to consider the competitive relationship
in relation to the types of products being compared and
the way in which those types of products are generally
perceived, or is it necessary,
in order to assess the
degree of substitution possible, to take into account also
the particular characteristics of the product which the
advertiser
advertising
to promote
concerned and of the image he intends to give it?

in the

intends

(e) Are the criteria by which a competitive relationship
within the meaning of Article 2(2a) can be established
identical
the
comparison satisfies the condition referred to in para-
graph (b) of Article 3a?

to the criteria for verifying whether

3. Does a comparison of Article 2(2a) of Directive 84/450 (1)

with Article 3a of that directive mean that

(a) either any comparative advertising is unlawful which
to be identified where a
enables a type of product
competitor or the goods offered by him cannot be iden-
tified from the wording?

(b) or the lawfulness of the comparison must be considered
in the light only of national legislation other than that
by which the provisions of the directive on comparative
advertising are transposed, which could lead to reduced
protection for consumers or undertakings offering the
type of product being compared with the product
offered by the advertiser?

4. If it should be concluded that there has been comparative
advertising within the meaning of Article 2(2a), must it be
the Directive that any
inferred from Article 3a(1)(f) of
comparison is unlawful which,
in respect of products
without designation of origin, relates to products with desig-
nation of origin?

(1) Council Directive 84/450/EEC of 10 September 1984 relating to the
approximation of the laws, regulations and administrative provi-
sions of the Member States concerning misleading advertising (OJ
1984 L 250, p. 17), as amended by Directive 97/55/EC of the Euro-
pean Parliament and of the Council of 6 October 1997 (OJ 1997 L
290, p. 18)

Reference for a preliminary ruling from the Cour de cassa-
tion de Belgique by judgment of that court of 7 October
2005 in Raffaele Talotta v État belge

(Case C-383/05)

(2006/C 10/21)

(Language of the case: French)

Reference has been made to the Court of Justice of the Euro-
pean Communities by judgment of the Cour de cassation de
Belgique (Belgian Court of Cassation) of 7 October 2005,
received at the Court Registry on 24 October 2005, for a preli-
minary ruling in the proceedings between Raffaele Talotta and
the État belge on the following question:

Is Article 43 (formerly Article 52) of the EC Treaty to be inter-
preted as prohibiting a provision of national
law, such as
Article 182 of the [Belgian] Royal Decree of 27 August 1993
implementing Article 342(2) of the Income Tax Code 1992,
whereby minimum tax bases are applied only in the case of
non-residents?

Reference for a preliminary ruling from the Oberster
Gerichtshof by order of that court of 28 September 2005
in Color Drack GmbH v Lexx International Vertriebs
GmbH

(Case C-386/05)

(2006/C 10/22)

(Language of the case: German)

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of
the Oberster Gerichtshof
(Austria) of 28 September 2005, received at the Court Registry
on 24 October 2005, for a preliminary ruling in the proceed-
ings between Color Drack GmbH and Lexx International
Vertriebs GmbH on the following question: