CELEX: C1996/354/35
Language: en
Date: 1996-11-23 00:00:00
Title: Appeal brought on 30 September 1996 by the European Broadcasting Union against the judgment delivered on 11 July 1996 by the First Chamber, Extended Composition, of the Court of First Instance of the European Communities in Joined Cases T-528/93, T-542/93, T-543/93 and T-546/93 between Métropole Télévision SA, Reti Televise Italiane Spa, Sociedade Independente de Comunicação SA (SIC), Gestevisión Telecinco and Antena 3 de Televisión, on the one hand, and Commission of the European Communities, European Broadcasting Union, Radiotelevisione Italiana SpA (RAI) and Radiotelevisión española (RTVE) (Case C-320/96 P)

No C 354/ 18           EN                    Official Journal of the European Communities                                      23 . 11 . 96
3 . ( b ) Does it matter, as regards the answer to Question 2 ,         Pleas in law and main arguments adduced in support:
          that the definitions in the Tobacco Directive were
          not implemented in the Member State if the
          national authority, in its decision, referred to the          — Misinterpretation of Articles 90 (2 ) and 85 ( 3 ): the fact
          definitions, and the parties to the case before the              that the former provision is applicable does not preclude
          national court are in agreement that the definitions             the applicability of the latter . There is no basis for the
          in the Directive are directly applicable ?                       proposition that the collective activities of public service
                                                                           broadcasting organizations should be considered under
                                                                           Article 90 ( 2 ) rather than under Article 85 ( 3 ) nor for the
                                                                           proposition that, when granting exemption, the
4 . Does it matter, as regards the answer to Question 2 , that
                                                                           Commission could not take into account public interest
     the authorities refused to suspend the operation of the               considerations in the absence of other circumstances .
     authority's decision as requested by the plaintiff with a
                                                                           The judgment confused two separate concepts, that of
     view to limiting its losses ?
                                                                           ' services of general economic interest' within the
                                                                           meaning of Article 90 ( 2 ) of the Treaty and that of the
                                                                           'particular public mission' conferred on a broadcasting
(!) OJ No L 10 , 16 . 1 . 1979 , p . 8 .
                                                                           service under the specific rules of its national
                                                                           legislation.
                                                                        — Misapplication of Article 85 and manifest error of
                                                                           assessment in so far as it is held in the judgment that the
                                                                           acquisition of exclusive rights to retransmit
                                                                           international sports events on television might not be
                                                                           necessary and should be the subject of an in-depth
                                                                           investigation on the part of the Commission, whereas it
Appeal brought on 30 September 1996 by the European                        is sufficiently evident from the case-file that exclusive
Broadcasting Union against the judgment delivered on                       rights are the norm .
11 July 1996 by the First Chamber, Extended Composition,
of the Court of First Instance of the European Communities
in Joined Cases T-528/93 , T-542/93 , T-543/93 and                      — Misapplication of Article 85 and manifest error of
T-5 46/93 between Metropole Television SA, Reti Televise                   assessment in so far as the judgment requires the
                                                                           Commission to examine whether the burdens and
Italiane Spa, Sociedade Independente de Comunicagao SA
( SIC ), Gestevision Telecinco and Antena 3 de Television, on              obligations arising for the members of the EBU as a
the one hand, and Commission of the European                               result of their mission of public interest are not
Communities,          European           Broadcasting      Union,          compensated for financially, possibly by State aid within
Radiotelevisione Italiana SpA ( RAI ) and Radiotelevision                  the meaning of Articles 92 and 93 . No such requirement
                         espanola ( RTVE )                                 follows from the wording of Article 85 ( 3 ). There is no
                                                                           connection between the manner in which a Member
                       ( Case C-320/96 P )                                 State proposes to organize the funding of a broadcaster
                           ( 96/C 354/35 )                                 and the legality of any cooperation between that
                                                                           broadcaster and other broadcasters with a view to
                                                                           presenting a joint offering in terms of the retransmission
                                                                           of sports events .
An appeal against the judgment delivered on 11 July 1996
by the First Chamber, Extended Composition, of the Court
of First Instance of the European Communities in Joined
                                                                        — Manifest error of assessment and reasoning: the
Cases T-528/93 , T-542/93 , T-543/93 and T-546/93
                                                                           judgment is defective in so far as it fails to take account
between Metropole Television SA, Reti Televise Italiane
                                                                           of an essential aspect. The Court of First Instance went
SpA, Sociedade Independente de Comunicagao SA ( SIC ),                     off on the wrong track: the exemption decision relates to
Gestevision Telecinco and Antena 3 de Television, on the
                                                                           the joint offering in the name of the members of the EBU
one hand, and Commission of the European Communities,
                                                                           and not to the manner in which an organization becomes
European Broadcasting Union, Radiotelevisione Italiana
                                                                           a member of the EBU. The exemption decision was
SpA ( RAI ) and Radiotelevision espanola ( RTVE ), was                     preceded by years of negotiations between the
brought before the Court of Justice of the European                        Commission and the EBU on the conditions on which
Communities on 30 Septemnber 1996 by the European
                                                                           the EBU was to grant sublicences to any broadcaster in
Broadcasting Union ( EBU ), represented by Ian S. Forrester
                                                                           Europe, including the respondents . The judgment has
QC, of the Scottish Bar, and Alasdair R. M. Bell, solicitor                regard only to the criteria for EBU membership and does
( Scotland ), with an address for service in Luxembourg at the
                                                                           not take account of the impact in favour of competition
Chambers of M. Loesch, 11 Rue Goethe .
                                                                           of the system of sublicences .
The appellant claims that the judgment of the Court of First            — Manifest error of assessment and misapplication of
Instance of 11 July 1996 in Joined Cases T-528/93 ,                        Article 85 in that the Court of First Instance wrongly
T-542/93 , T-543/93 and T-546/93 ( ] ) should be set aside .               concludes that national legislative provisions relating to
 ---pagebreak--- 23 . 11 . 96           EN                   Official Journal of the European Communities                                    No C 354/ 19
     broadcasting determine whether a broadcaster qualifies            2 . Are the proceedings of an administrative authority
     to become an active member of the EBU, and in that it                    within the meaning of paragraph 7 ( 1 ) ( 2 ) of the
     analyses the relevance of the criteria for membership of                 Umweltinformationsgesetz [Law on information on the
     the EBU in the light of the Commission decision .                        environment] preliminary investigation proceedings
                                                                              within the meaning of the third indent of Article 3 ( 2 ) of
— The Court of First Instance was guilty of manifest error                    that Directive ?
     of assessment when it considered that the Commission
     granted an exemption to the rules for EBU membership .            0 ) OJ No L 158 , 23 . 6 . 1990, p . 56 .
     The Commission has in no way granted exemption to
     those rules .
— Manifest error of assessment in so far as it is considered
     in the judgment that the criteria for EBU membership are
     vague, imprecise and liable to be applied in a                    Action brought on 2 October 1996 by the Commission of
     discriminatory manner, whereas, on an objective view,             the European Communities against the Kingdom of
     they are appropriate, foreseeable and reasonably                                                   Belgium
     precise .                                                                                     Case C-323 /96 )
— Defective reasoning and misinterpretation of Article 85                                           ( 96/C 354/37 )
     in so far as the judgment seems to lay down criteria for
     the grant of exemption to a group of broadcasters                 An action against the Kingdom of Belgium was brought
     entrusted with a mission of public interest which are so          before the Court of Justice of the European Communities on
     onerous as to make it practically impossible to obtain            2 October 1996 by the Commission of the European
     any exemption whatsoever . The judgment also seriously            Communities, represented by Hendrik van Lier, Legal
     encroaches upon the discretion available to the                   Adviser, acting as Agent, with an address for service in
     Commission and consequently upon its ability to fulfil            Luxembourg at the office of C. Gomez de la Cruz, of its
     its obligations in administering the competition rules.           Legal Service, Wagner Centre, Kirchberg.
(!) OJ No C 247, 24 . 8 . 1996 , p . 12 .                              The Commission claims that the Court should :
                                                                       — declare that the Kingdom of Belgium has failed to fulfil
                                                                              its obligations under Directives 89/440/EEC ( ! ) and
                                                                              93/37/EEC ( 2 ), and in particular Articles 7 and 11 of
                                                                              Directive 93/37/EEC in so far as it did not place a notice
Reference for a preliminary ruling from the                                   in the Official Journal of the European Communities
Schleswig-Holsteinischen Oberverwaltungsgericht by order                      either for the overall project or for the individual lots for
of that court of 10 July 1996 in the case of Wilhelm                          the construction of a building for the Vlaamse Raad and
Mecklenburg v. Kreis Pinneberg ( der Landrat); also                           it did not apply the award procedures in accordance with
participating: der Vertreter des offentlichen Interesses,                     those directives;
                                 Kiel
                                                                       — order the defendant to pay the costs .
                         ( Case C-321 /96 )
                           ( 96/C 354/36 )
                                                                       Pleas in law and main arguments adduced in support:
Reference has been made to the Court of Justice of the                 According to the Commission, the defendant does not
European Communities by an order of the                                dispute that it infringed Directive 93/37/EEC in connection
Schleswig-Holsteinischen Oberverwaltungsgericht [Higher                with the award procedures for the building of the Vlaamse
Administrative Court, Schleswig-Holstein] ( Fourth                     Raad. In contrast, it is clear from various reactions of the
Chamber ) of 10 July 1996 , which was received at the Court            Belgian public authorities that they considered that the
Registry on 1 October 1996 , for a preliminary ruling in the           infringement of the provisions of Directive 93/37/EEC was
case of Wilhelm Mecklenburg v. Kreis Pinneberg ( der                   attributable to the inadequate implementation of that
Landrat); also participating: der Vertreter des offentlichen           Directive in Belgian law, namely that the legislative bodies
Interesses [Representative of the Public Interest], Kiel, on           considered that the necessary legal framework was lacking.
the following questions :                                              The defendant's reliance on it itself having incorrectly
                                                                        implemented the Directive in question is however irrelevant,
 1 . Are the observations made by a lower                               since a Member State is not entitled to plead provisions,
      Landschaftspflegebehdrde [ Countryside Protection                 practices or situations of a domestic nature in order to
      Authority] in its capacity as representative of the public        justify its non-compliance with its obligations under
      interest in connection with development consent                   Community law.
      proceedings an administrative measure designed to
      protect the environment within the meaning of                     (>) OJ No L 210 , 21 . 7 . 1989 , p . 1 .
      Article 2 ( a ) of Council Directive 90/313/EEC (') of            ( 2 ) OJ No L 199 , 9 . 8 . 1993 , p . 54 .
      7 June 1990 on the freedom of access to information on
      the environment ?