Case C-250/06: Reference for a preliminary ruling from the Conseil d'Etat (Belgium) lodged on 6 June 2006 — United Pan-Europe Communications Belgium SA, Coditel Brabant SA, Société intercommunale pour la Diffusion de la Télévision Brutele, Wolu TV ASBL v Belgian State
Date: 2006-09-02
Institutions: Court of Justice
Subjects: broadcasting, cable distribution, freedom to provide services, interpretation of the law, television

C 212/12

EN

Official Journal of the European Union

2.9.2006

Parties to the main proceedings

Parties to the main proceedings

Applicant: Josefa Velasco Navarro

Defendant: Fondo de Garantia Salarial (Fogasa)

Applicants: United Pan-Europe Communications Belgium SA,
Coditel Brabant SA, Société intercommunale pour la Diffusion
de la Télévision Brutele, Wolu TV ASBL

Questions referred

1. Where it has been found by the national court that the
domestic legislation, which is incomplete, did not comply,
on 8 October 2005, with Directive 2002/74 (1) and its inter-
pretation by the Court of Justice (with regard to the Com-
munity principle of equal treatment)
in the order of 13
December 2005 (Case C-177/05), must that directive be
regarded as having direct effect as regards FOGASA, the
State guarantee institution, with effect from the following
day (9 October 2005)?

2. If the answer to Question 1 is in the affirmative,

is the
direct effect of Directive 2002/74/EC to apply also, because
it is most beneficial to the worker (and least beneficial to
the State which has failed to fulfil
its obligations), to a
declared state of insolvency, following a court conciliation
agreement not provided for in the incomplete domestic
legislation — between the date of the entry into force of the
directive (8 October 2002) and the date by which the
Spanish State was to adopt the laws, regulations and admin-
istrative provisions necessary to comply with the provisions
of the directive (8 October 2005)?

(1) Directive 2002/74 of the European Parliament and of the Council
of 23 September 2002 amending Council Directive 80/987/EEC on
the approximation of laws of the Member States relating to the
protection of employees in the event of the insolvency of their
employer (OJ 2002 L 270, p. 10)

Reference for a preliminary ruling from the Conseil d'Etat
(Belgium) lodged on 6 June 2006 — United Pan-Europe
Communications Belgium SA, Coditel Brabant SA, Société
intercommunale pour la Diffusion de la Télévision Brutele,
Wolu TV ASBL v Belgian State

(Case C-250/06)

(2006/C 212/20)

Language of the case: French

Referring court

Conseil d'Etat

Defendant: Belgian State

Questions referred

1. Must the obligation imposed on undertakings which distri-
bute television programmes by cable to distribute certain
pre-determined programmes be interpreted as conferring on
the programmes' authors a ‘special
right’ within the
meaning of Article 86 EC?

distribute

2. If the first question is to be answered in the affirmative,
must the rules referred to at the end of Article 86(1) EC
(namely ‘the rules contained in this Treaty, in particular …
those rules provided for in Articles 12 and Articles 81 to
89’) be interpreted as not permitting Member States to
television
which
require
undertakings
programmes by cable
certain television
to distribute
programmes by private broadcasting organisations, but
‘falling under’ (within the meaning of the Belgian Law of 30
March 1995 on broadcasting distributors networks and the
pursuit of broadcasting activities in the bilingual region of
Bruxelles-Capitale) specified public powers of
that State,
with the result that the number of programmes coming
from other Member States or non-members of the European
Union and of organisations not falling under those public
powers has fallen by the number of programmes covered by
the ‘must carry’ obligation?

3. Must Article 49 EC be interpreted as meaning that a prohib-
ited barrier to the freedom to provide services exists from
the time a measure taken by a Member State, in the present
case the obligation to retransmit
television programmes
over cable distribution networks, is liable to impede directly
or
the provision of
services from another Member State to recipients of those
services in the first Member State, which will be the case
where, on account of that measure, the service provider
finds itself in an unfavourable position when negotiating for
access to those networks?

indirectly, actually or potentially,

4. Must Article 49 EC be interpreted as meaning that a prohib-
ited barrier to the freedom to provide services exists because
a measure taken by a Member State, in the present case the
obligation to retransmit television programmes over cable
distribution networks, is granted only to undertakings estab-
lished in that Member State in the majority of cases, owing
to the place of establishment of those benefiting from the
measure or the fact that they have some other link to that
Member State — while there is no justification for such a
barrier based on overriding reasons of public interest in
compliance with the principle of proportionality?