CELEX: 61991CC0211
Language: en
Date: 1992-11-24
Title: Opinion of Mr Advocate General Tesauro delivered on 24 November 1992. # Commission of the European Communities v Kingdom of Belgium. # Failure to fulfil obligations - Access to cable television networks - Conditions. # Case C-211/91.

OPINION OF ADVOCATE GENERAL
      TESAURO
      delivered on 24 November 1992 (
            *1
         )
      
         Mr President,
      
      
         Members of the Court,
      
      
               1. 
            
            
               In the present application the Commission asks the Court to find that the Kingdom of Belgium has failed to meet its obligations under Articles 52, 59, 60 and 221 of the EEC Treaty as regards the current regulations in the Flemish Community for the broadcasting of television programmes. The Commission contests four aspects of the regulations in question: (a) the prohibition on the relaying by cable of television programmes broadcast in a language other than that of the Member State from which they originate; (b) the need for prior authorization to transmit via a cable television network television programmes broadcast by non-public broadcasting organizations established in other Member States; (c) the conditions relating to the subscription of the capital of the nonpublic broadcasting company; and (d) the definition of the concept of ‘own cultural productions’.
               These measures, which are contained in the Decree of the Flemish Community of 28 January 1987 (
                     1
                  ) and the Order of the Flemish Executive of 11 May 1988, (
                     2
                  ) are described in detail in the Report for the Hearing, to which I refer; they will therefore be mentioned here only to the extent necessary to examine the various complaints of the Commission.
            
         The requirement concerning the language of the programmes
      
               2.
            
            
               The complaint under consideration concerns the prohibition laid down in Article 3 of the Decree of 28 January 1987 on the transmission in Flanders, through the intermediary of the operators of cable television networks, of television programmes broadcast by radio and television broadcasting organizations in other Member States if the programme is not in the language or one of the languages of the Member State in which the broadcasting organization is established. That prohibition, which does not apply to programmes produced by Belgian television broadcasters, is considered by the Commission to be incompatible with the rules governing the provision of services.
               Indeed, the Belgian Government itself does not appear seriously to contest the illegality of the prohibition in question, as it admitted at the hearing that the prohibition, as it is formulated, is formally discriminatory. Moreover, even during the pre-litigation procedure the Belgian Government had notified the Commission of the proposal to amend Article 3 of the Decree of 28 January 1987 in order to extend the prohibition to programmes produced in Belgium and thereby to eliminate the discrimination complained of. It was precisely the amendment in question, which has already been submitted to the Flemish Council for approval but has not yet been adopted, that was debated at length by the parties during the procedure; they nevertheless adopted sharply differing positions as to whether or not such an amendment is capable of terminating the infringement.
               For the purposes of the present case, it should nevertheless be noted that, taking account of the nature and scope of the procedure under Article 169, the proposed amendment is not relevant to these proceedings, as it is obviously not possible for the Court to express an opinion on the compatibility of a measure that has not yet been adopted or even to rule on an infringement that is still only hypothetical. The observations that follow therefore concern only the disputed measure in its present form.
            
         
               3.
            
            
               That said, and moving on to the substance of the question, the first point to bear in mind is that, as the Court has consistently held, Articles 59 and 60 prescribe the abolition of any discrimination against a person providing services on account of his nationality or the fact that he is established in a Member State other than the one in which the service is provided. Moreover, in the Bond van Adverteerders judgment (
                     3
                  ) the Court expressly stated that the transmission of programmes by cable constitutes a service within the meaning of Articles 59 and 60 of the Treaty.
               It is beyond doubt that the disputed measure constitutes an obstacle to the freedom to provide services to the extent that it prevents broadcasting organizations established in other Member States from having programmes that are not ‘produced’ in the official language of the State in which the organizations themselves are established relayed to the Flemish Community via a cable television network.
               Moreover, that prohibition is not only discriminatory from a formal point of view, in that it applies solely to transmissions by broadcasting organizations established in other Member States, (
                     4
                  ) but also and above all, discriminatory in substance. Indeed, the very nature of the prohibition in question is such that it applies only to broadcasters established in other Member States, which are the only ones thus denied the possibility of broadcasting in Dutch: it is abundantly clear that Flemish broadcasters have no commercial interest in broadcasting on the national territory in a language other than French or Dutch. The measure is therefore protectionist in substance as well as form; it follows that as a matter of principle it is incompatible with Articles 59 and 60 of the Treaty.
            
         
               4.
            
            
               The Belgian Government maintains, however, albeit with due timidity, that the measure in question is not illegal in that, as recognized by the Court itself in the Van Binsbergen judgment, (
                     5
                  ) a Member State has the right to take measures to prevent a person providing services whose activity is entirely or principally directed towards its territory from exercising the freedom guaranteed by Article 59 for the purpose of avoiding the professional rules of conduct which would be applicable to him if he were established within the State in question.
               In this regard, it is hardly necessary to point out that that judgment authorizes a Member State to adopt specific measures in an individual case of abuse and certainly not to exclude an entire category of operators from its market. The prohibition in question is not in fact designed in such a way as to prevent the circumvention of national rules on the right of establishment; it applies to the broadcasting of all programmes not transmitted in the language of the State in which the broadcaster is established and irrespective of the ‘quantitative’ scale of the programmes transmitted in Dutch by a particular broadcaster established in another Member State.
            
         
               5.
            
            
               As regards the grounds on which the Belgian Government relies to justify such a measure, I note first of all that, according to the established case-law of the Court, ‘national rules which are not applicable to services without distinction as regards their origin and which are therefore discriminatory are compatible with Community law only if they can be brought within the scope of an express derogation.’ (
                     6
                  )
               The only derogation that could apply in the present case would therefore be the one provided for in Article 56 of the Treaty (to which Article 66 refers), on the basis of which discriminatory measures can be justified on grounds of public policy, public security or public health.
               The broad cultural reasons adduced by the Belgian Government (maintenance of pluralism in the press, preservation and development of the artistic heritage, and the survival of commercial and public television stations entrusted with cultural responsibilities) can clearly not be brought within the scope of Article 56 nor, in particular, can they be considered ‘grounds of public policy’, in view of the Court's restrictive case-law in that regard. (
                     7
                  ) Moreover, the Flemish Executive itself, in its note attached to the letter of 3 July 1990, expressly recognized that the purpose of the prohibition in question was to protect the Flemish broadcasting organizations from competition from other Member States.
               In the light of the foregoing observations, it must accordingly be concluded that the measure in question cannot be justified on the basis of the derogations provided for in Article 56 of the Treaty and is therefore incompatible with Articles 59 and 60 of the Treaty.
            
         The other complaints
      
               6.
            
            
               As regards the other measures contested by the Commission, that is to say (b) the requirement of prior authorization in order to transmit, via a cable television network, television programmes broadcast by nonpublic broadcasting organizations established in other Member States, (c) discrimination in the terms for the subscription of the capital of the non-public broadcasting company, and (d) the definition of the concept of ‘own cultural productions’, it is sufficient to note that these are measures whose manifestly discriminatory nature is not disputed by the Belgian Government.
               The Belgian Government merely points out that the Flemish Executive has submitted to the Flemish Council a draft decree designed to remedy the situation and that for internal reasons the approval of this decree will take longer than initially anticipated. It therefore formally acknowledges, the failure to fulfil its obligations with regard to those complaints.
            
         
               7.
            
            
               In the light of the foregoing considerations, I therefore propose that the Court should grant the application and order the defendant State to pay the costs.
            
         (
            *1
         )	Original language: Italian.
      (
            1
         )	Decree on the transmission of radio and television programmes on radio and cable television networks and on the approval of non-public television broadcasting companies (Moniteur Belge, 19 March 1987, p. 4196).
      (
            2
         )	Order on the proportion of own cultural productions in the programmes of non-public television broadcasting companies (Moniteur Belge, 1 June 1938, p. 7496).
      (
            3
         )	Case 352/85 Bond van Adverteerders v Netherlands [1988] ECR 2085, paragraphs 14-16; see also the judgments in Case 288/89 Collectieve Antennevoorziening Gouda [1991] ECR I-4007 and Case 353/89 Commission v Netherlands [1991] ECR I-4069.
      (
            4
         )	Flemish broadcasters are permitted to broadcast, on the national territory, programmes produced in a language other than French or Dutch.
      (
            5
         )	In Case 33/74 Van Binsbergen [1974] ECR 1299, paragraph 13. See also the judgments in Case 205/84 Commission v Germany [1986] ECR 3755, paragraph 22, and Case 130/88 Van de Bijl [1989] ECR 3039, paragraph 26.
      (
            6
         )	Judgment in Case 352/85 Bond van Adverteerders, cited above, paragraph 32.
      (
            7
         )	The Court has stated on several occasions that the provision of Article 56 entailing a derogation from a fundamental prin-ciplc_ oí the Treaty (Article 3(c)) must be interpreted in a restrictive manner, for which reason its application requires there to be ‘a genuine and sufficiently serious threat affecting one of the fundamental interests of society’ (Judgment in Case 30/77 Regina v Boucherean [1977] ECR 1999, paragraph 35) andatile adoption of measures that are proportionate to and strictly necessary in relation to the interests they arc intended to safeguard (sec the judgment in Joined Cases 115 and 116/81 Adoni and Cornnaille v Belgium [1982] ECR 1665, paragraph 9).