Unión de Televisiones Comerciales Asociadas (UTECA) v Administración General del Estado.
Date: 2009-03-05
18. Pursuant to Article 3(1) of the Directive, the Member States remain free to lay down more detailed or stricter rules with regard to television broadcasting bodies under their jurisdiction. Nevertheless, when exercising that right, they must respect the fundamental freedoms guaranteed by the EC Treaty (see, to that effect, Case C‑6/98 ARD  [1999] ECR I‑7599, paragraph 49, and Case C‑500/06 Corporación Dermoestética  [2008] ECR I‑0000, paragraph 31).
19. Finally, it should be recalled that the Directive does not completely harmonise the rules relating to the areas which it covers, but that it lays down minimum rules for broadcasts which emanate from the European Community and which are intended to be received within it (see, to that effect, Case C‑412/93 Leclerc-Siplec  [1995] ECR I‑179, paragraphs 29 and 44, and Joined Cases C‑34/95 to C‑36/95 De Agostini and TV-Shop  [1997] ECR I‑3843, paragraph 3).
25. However, such a restriction on the fundamental freedoms guaranteed by the Treaty may be justified only where it serves overriding reasons relating to the general interest, is suitable for securing the attainment of the objective which it pursues and does not go beyond what is necessary in order to attain it (Case C‑250/06 United Pan-Europe Communications Belgium and Others  [2007] ECR I‑11135, paragraph 39 and the case-law cited).
27. In that regard, the Court has already accepted that the objective, pursued by a Member State, of defending and promoting one or several of its official languages constitutes an overriding reason in the public interest (see, to that effect, Case C‑379/87 Groener  [1989] ECR 3967, paragraph 19, and United Pan-Europe Communications Belgium and Others , paragraph 43).
37. With regard to Article 12 EC, of which an interpretation is also requested by the referring court and which enshrines the general principle of non-discrimination on grounds of nationality, it must be recalled that that provision applies independently only to situations governed by Community law for which the Treaty lays down no specific rules of non-discrimination (see Case C‑40/05 Lyyski  [2007] ECR I‑99, paragraph 33 and the case-law cited).
38. However, in relation to the freedom of movement for workers, the right of establishment, the freedom to provide services and the free movement of capital, the principle of non-discrimination was implemented by Articles 39(2) EC, 43 EC, 49 EC and 56 EC respectively (see, with regard to Article 39(2) EC, Lyyski , paragraph 34; with regard to Article 49 EC, Case C‑289/02 AMOK  [2003] ECR I‑15059, paragraph 26; and, with regard to Articles 43 EC and 56 EC, Case C‑222/04 Cassa di Risparmio di Firenze and Others  [2006] ECR I‑289, paragraph 99).
41. By its third question, the referring court asks essentially whether Article 87 EC is to be interpreted as meaning that a measure adopted by a Member State, such as the measure at issue in the main proceedings, requiring television operators to earmark 5% of their operating revenue for the pre-funding of European cinematographic films and films made for television and, more specifically, to reserve 60% of that 5% for the production of works of which the original language is one of the official languages of that Member State constitutes State aid in favour of the cinematographic industry of that Member State.
42. It should be recalled that, in accordance with settled case-law, classification as aid requires all the conditions set out in Article 87 EC to be fulfilled, that is to say, first, there must be intervention by the State or through State resources, second, the intervention must be liable to affect trade between Member States, third, it must confer an advantage on the recipient and, fourth, it must distort or threaten to distort competition (Case C‑280/00 Altmark Trans and Regierungspräsidium Magdeburg  [2003] ECR I‑7747, paragraphs 74 and 75 and the case-law cited).
43. More particularly, it is clear from the case-law of the Court that only advantages granted directly or indirectly through State resources are to be considered aid within the meaning of Article 87(1) EC. The distinction made in that provision between aid granted by a Member State and aid granted through State resources does not signify that all advantages granted by a State, whether financed through State resources or not, constitute aid, but is intended merely to bring within that definition both advantages which are granted directly by the State and those granted by a public or private body designated or established by the State (Case C‑379/98 PreussenElektra  [2001] ECR I‑2099, paragraph 58 and the case-law cited).
46. Furthermore, since a measure adopted by a Member State, such as the measure at issue in the main proceedings, applies to public television operators, it does not appear that the advantage in question is dependent on the control exercised by the public authorities over such operators (see, by analogy, Joined Cases 67/85, 68/85 and 70/85 Kwekerij van der Kooy and Others  v Commission  [1988] ECR 219, paragraph 37).
47. Consequently, the answer to the third question is that Article 87 EC must be interpreted as meaning that a measure adopted by a Member State, such as the measure at issue in the main proceedings, requiring television operators to earmark 5% of their operating revenue for the pre-funding of European cinematographic films and films made for television and, more specifically, to reserve 60% of that 5% for the production of works of which the original language is one of the official languages of that Member State does not constitute State aid in favour of the cinematographic industry of that Member State.
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