CELEX: C1999/174/04
Language: en
Date: 1999-06-19 00:00:00
Title: Case C-140/99: Action brought on 20 April 1999 by the Commission of the European Communities against the French Republic

C 174/2                EN                    Official Journal of the European Communities                                        19.6.1999
Would the answer be different if, before the product was                     States concerning the pursuit of television broadcasting
reimported into the Community, the purchaser in the non-                     activities, (1) and under Article 59 of the Treaty;
member country sold it to an undertaking with which he
was personally and commercially connected, which is also                     — by failing to adopt within the prescribed period the
established in that non-member country?                                          laws, regulations and administrative provisions needed
                                                                                 to comply in full with Article 22 of Direc-
                                                                                 tive 89/522/EEC,
                                                                             — by providing that rules different from those applicable
                                                                                 to the broadcasting of services intended for the public
                                                                                 in France are to apply to satellite broadcasting of
Reference for a preliminary ruling from the Sozialgericht                        audiovisual communication services in foreign
(Social Court), Münster, by order of that court of 12 March                      languages, and
1999 in the case of Carl Borawitz v Landesversicherungs-
anstalt Westfalen, joined party: Federal Republic of Germ-                   — by not adopting measures to ensure that television
                               any                                               services using a frequency not managed by the Conseil
                                                                                 Supérieur de l’Audiovisuel comply with the law appli-
                         (Case C-124/99)                                         cable to the broadcasting of services intended for the
                                                                                 public in France,
                         (1999/C 174/03)
                                                                             the French Republic has failed to fulfil its obligations under
Reference has been made to the Court of Justice of the                       Directive 89/522/EEC, in particular Articles 2(1), 22 and
European Communities by an order of the Sozialgericht (Social                25 thereof;
Court), Tenth Chamber, Münster, of 12 March 1999, which                 2. Order the French Republic to pay the costs.
was received at the Court Registry on 14 April 1999, for a
preliminary ruling in the case of Carl Borawitz v Landesversich-
erungsanstalt Westfalen, joined party: Federal Republic of              Pleas in law and main arguments
Germany, on the following question:
                                                                        The Commission makes five charges against the French rules.
Is Paragraph 118(2a) of the Sixth Book of the Sozialgesetzbuch          The first two concern France as a receiving country and the
(Code of Social Law, ‘SGB VI’) incompatible with European               last three as a country of establishment.
Community law, in particular the principle of equal treatment,
in so far as the limitation on pension back payments is greater         First, Law 86-1067 of 30 September 1986 on freedom of
when payment is made abroad?                                            communication introduces, for retransmission of television
                                                                        broadcasts on French territory, an obligation to conclude an
                                                                        agreement with the Conseil Supérieur de l’Audiovisuel.
                                                                        The application of such a system of prior authorisation for
                                                                        television broadcasting services falling within the jurisdiction
Action brought on 20 April 1999 by the Commission of                    of another Member State is incompatible with Article 59 of
 the European Communities against the French Republic                   the EC Treaty or with Article 2(2) of the abovementioned
                                                                        directive to the extent to which that agreement relates to
                         (Case C-140/99)                                matters coordinated by the directive.
                         (1999/C 174/04)                                Second, it is apparent form Article 4 of Decree 92-882 of
                                                                        1 September 1992, which was adopted for the implementation
An action against the French Republic was brought before the            of certain provisions of the abovementioned law, that the
Court of Justice of the European Communities on 20 April                latter have been made applicable to services broadcast from
1999 by the Commission of the European Communities,                     France and, for their distribution by cable, to the services
represented by Karen Banks, of its Legal Service, acting as             which have established their broadcasting activities outside
Agent, with an address for service in Luxembourg at the office          France for the sole purpose of avoiding the rules which would
of Carlos Gómez de la Cruz, Wagner Centre, Kirchberg.                  otherwise apply to them.
The Commission of the European Communities claims that                  The criterion chosen as the basis for French jurisdiction,
the Court should:                                                       namely ‘services broadcast’, is not precise enough; only a
                                                                        criterion based on the establishment of the service in question
1. Declare that,                                                        may, according to the case-law, be used. Moreover, that
                                                                        provision also leads to the result that a service may not be
    — by keeping in force a system of prior authorisation for           established outside France, thereby limiting the freedom to
        the retransmission on French territory of television            provide services.
        broadcasts from other Member States, whereby an
        agreement must be concluded with the Conseil Supérie-           Third, the French legislation only incompletely transposes
        ur de l’Audiovisuel, and                                        Article 22 of the directive concerning measures to be taken for
                                                                        the protection of minors. First, the measures put into effect by
    — by keeping force Article 4 of Decree 91-882,
                                                                        the French legislation do not cover television broadcasting
    the French Republic has failed to fulfil its obligations under      services falling within French jurisdiction but not using any
    Article 2(2) of Council Directive 89/552/EEC of 3 October           French network (terrestrial, cable or satellite). Second, the
    1989 on the coordination of certain provisions laid down            measures do not have sufficient binding force, since they
    by law, regulation or administrative action in Member               merely impose penalties.
 ---pagebreak--- 19.6.1999               EN                     Official Journal of the European Communities                                        C 174/3
Fourth, Article 31(3) of the abovementioned law provides that             Contentions and principal arguments adduced in support
inter alia the obligations relating to advertising and sponsorship
do not apply to services broadcast solely in a foreign language           The Commission’s objections related inter alia to the fact that
without French sub-titles. Thus, those services, although within          although Article 6(3)(e) of Regulation (EEC) No 1558/91 (2)
French jurisdiction, are not subject to the obligations deriving          provides that the minimum price to be paid to the producer
from the directive. France, however, is required under Article            for raw materials is not to include costs connected with
2(1) of the directive to exercise control over such services.             transport, the Commission services found that the producers
                                                                          were required to pay a part of that expenditure (35%).
Fifth, no implementing measure has been adopted to make                   According to the Commission, that was contrary to the
the provisions of the directive applicable to services using              provisions of the regulations in that such conduct amounted
frequencies not managed by the Conseil Supérieur de l’Audiovi-            to non-observance of the minimum price to be paid to the
suel, even if their broadcasts are intended for the public in             producer for the raw material delivered.
France.
                                                                          The national legislation on payments for tomatoes and trans-
                                                                          port costs was contained, as far as the 1996/97 marketing year
(1) OJ L 298 of 17.10.1989, p. 23.                                        was concerned, in an interprofessional agreement approved
                                                                          and confirmed in accordance with Italian Law No 88/1998,
                                                                          with which the Commission must have been entirely familiar.
                                                                          The Italian authorities made it clear that in the abovementioned
                                                                          agreement, considering that almost all the tomato containers
                                                                          were owned by the processing undertakings, the farmers had
                                                                          accepted a maximum of 35% of the documented cost of the
Action brought on 21 April 1999 by the Italian Republic                   overall transport, including carriage of the raw material from
    against Commission of the European Communities                        the place of harvest to the processing undertaking (at the
                                                                          latter’s expense) in order to cover both reimbursement of the
                         (Case C-146/99)                                  cost of the crates and bins which were liable to be broken and,
                                                                          therefore, would need to be replaced, and that of distributing
                                                                          those containers to the places of harvest. The Italian authorities
                         (1999/C 174/05)
                                                                          also state that the payments of the minimum price for the
                                                                          product were all made entirely in accordance with Community
An action against the Commission of the European Communi-                 legislation and that, when the EAGGF had so requested, the
ties was brought before the Court of Justice on 21 April 1999             relevant files had been made available to it.
by the Italian Republic, represented by Danilo Del Gaizo,
Avvocato dello Stato, with an address for service in Luxem-
bourg at the Italian Embassy, 5 Rue Marie-Adélaïde.                       (1) Decision 1999/186/ec — OJ 1999 L 61 of 10.3.99, p. 34.
                                                                          (2) OJ 1991 L 144 of 8.6.91, p. 31.
The applicant claims that the Court should:
— Annul Commission Decision C(99) 208 Final of 3 February
     1999 (1) which excludes from Community financing cer-
     tain expenditure incurred by the Member States in respect
     of the Guarantee Section of the European Agricultural                       Removal from the register of Case C-334/98 (1)
     Guidance and Guarantee Fund (EAGGF) to the extent
     to which, in determining the total italian expenditure                                       (1999/C 174/06)
     chargeable to the Fund, it made financial adjustments to
     the detriment of Italy, declaring not to be chargeable to
                                                                          By order of 12 March 1999 the President of the Court of
     the Fund the sum of ITL 7 421 939 820 for aid for
                                                                          Justice of the European Communities ordered the removal
     the processing of tomatoes — incomplete payment of
                                                                          from the register of Case C-334/98: Commission of the
     transport costs to tomato producers (item 4.6.8 of the
                                                                          European Communities v Italy.
     summary report for 1995) —, and
— order the Commission to pay the costs.                                  (1) OJ C 327 of 24.10.1998.