TV10 SA v Commissariaat voor de Media.
Date: 1994-10-05
13 Before considering that question, the Court notes that it has already held in Case 155/73 Sacchi [1974] ECR 409, paragraph 6, that the transmission of television signals comes, as such, within the rules of the Treaty relating to the provision of services. In Debauve, cited above, paragraph 8, the Court stated that there was no reason to treat the transmission of such signals by cable television any differently.
14 Also in Debauve the Court observed, however, that the provisions of the Treaty on freedom to provide services cannot apply to activities whose relevant elements are confined within a single Member State. Whether that is so in a particular case depends on findings of fact which are for the national court to establish. In the present case, the Raad van State has established that TV10 was constituted in accordance with Luxembourg law, that the seat of the company is in the Grand Duchy of Luxembourg and that its intention was to broadcast to the Netherlands.
15 The circumstance that, according to the Raad van State, TV10 established itself in the Grand Duchy of Luxembourg in order to escape the Netherlands legislation does not preclude its broadcasts being regarded as services within the meaning of the Treaty. That is distinct from the question of what measures a Member State may take to prevent a provider of services established in another Member State from evading its domestic legislation. The latter point is the subject of the Raad van State' s second question.
16 The answer to Question 1 must therefore be that the concept of "provision of services" referred to in Articles 59 and 60 of the Treaty covers the transmission, via cable network operators established in one Member State, of television programmes supplied by a broadcasting body established in another Member State, even if that body established itself there in order to avoid the legislation applicable in the receiving State to domestic broadcasters.
The lawfulness of certain restrictions on freedom to provide services
18 The Court has held in Case C-288/89 Collectieve Antennevoorziening Gouda v Commissariaat voor de Media [1991] ECR I-4007, paragraphs 22 and 23, Case C-353/89 Commission v Netherlands [1991] ECR I-4069, paragraphs 3, 29 and 30, and Case C-148/91 Veronica Omroep Organisatie v Commissariaat voor de Media [1993] ECR I-487, paragraph 9, that the Mediawet is intended to establish a pluralist and non-commercial radio and television broadcasting system and thus forms part of a cultural policy whose aim is to safeguard the freedom of expression in the audiovisual sector of the various components, in particular social, cultural, religious and philosophical ones, of the Netherlands.
19 It also follows from those three judgments that such cultural policy objectives are objectives of general interest which a Member State may lawfully pursue by formulating the statutes of its own broadcasting bodies in an appropriate manner.
21 It follows that a Member State may regard as a domestic broadcaster a radio and television organization which establishes itself in another Member State in order to provide services there which are intended for the first State' s territory, since the aim of that measure is to prevent organizations which establish themselves in another Member State from being able, by exercising the freedoms guaranteed by the Treaty, wrongfully to avoid obligations under national law, in this case those designed to ensure the pluralist and non-commercial content of programmes.
24 It is settled law that fundamental rights, including those guaranteed by the European Convention on Human Rights, form an integral part of the general principles of law, the observance of which the Court ensures (see in particular Case C-260/89 Elliniki Radiophonia Tileorasi [1991] ECR I-2925, paragraph 41, and Commission v Netherlands, cited above).
25 In Commission v Netherlands, cited above, paragraph 30, the Court held that the maintenance of the pluralism which the Netherlands broadcasting policy seeks to safeguard is intended to preserve the diversity of opinions, and hence freedom of expression, which is precisely what the European Convention on Human Rights is designed to protect.