United Pan-Europe Communications Belgium SA and Others v Belgian State.
Date: 2007-12-13
14. In that regard, it should be noted that Article 86(1) EC provides that, in the case of public undertakings and undertakings to which Member States grant special or exclusive rights, Member States are neither to enact nor maintain in force any measure contrary to the rules contained in the EC Treaty, in particular to those rules provided for in Article 12 EC and Articles 81 EC to 89 EC.
15. It is clear from the wording of Article 86(1) EC that it has no independent effect, in the sense that it must be read in conjunction with the other relevant rules of the Treaty (Case C-295/05 Asemfo [2007] ECR I-2999, paragraph 40).
17. According to well-established case-law of the Court, the mere creation of a dominant position through the grant of special or exclusive rights within the meaning of Article 86(1) EC is not in itself incompatible with Article 82 EC. A Member State will be in breach of the prohibitions laid down by those two provisions only if the undertaking in question, merely by exercising the special or exclusive rights conferred upon it, is led to abuse its dominant position or where such rights are liable to create a situation in which that undertaking is led to commit such abuses (Case C-209/98 Sydhavnens Sten & Grus  [2000] ECR I‑3743, paragraph 66; Case C-475/99 Ambulanz Glöckner [2001] ECR I-8089, paragraph 39); and Case C-451/03 Servizi Ausiliari Dottori Commercialisti  [2006] ECR I‑2941, paragraph 23).
19. Nevertheless, if the Court is to be in a position to give helpful answers to the questions referred to it, it is necessary for the national court to define the factual and legislative context of the questions it asks or, at the very least, to explain the factual circumstances on which those questions are based (see, to that effect, order in Case C-190/02 Viacom  [2002] ECR I‑8287, paragraph 15 and the case-law cited, and Case C-134/03 Viacom Outdoor  [2005] ECR I‑1167, paragraph 22).
20. In that regard, according to the Court’s case-law, the need for precision with regard to the factual and legislative context applies in particular in the area of competition, which is characterised by complex factual and legal situations (see Case C-176/96 Lehtonen and Castors Braine [2000] ECR I‑2681, paragraph 22; Viacom Outdoor , paragraph 23; and Case C-238/05 Asnef-Equifax and Administración del Estado  [2006] ECR I‑11125, paragraph 23).
28. According to the well-established case-law of the Court, the transmission of television signals, including the transmission of such signals by cable television, constitutes, as such, a supply of services for the purposes of Article 49 EC (see, to that effect, Case 155/73 Sacchi [1974] ECR 409, paragraph 6; Case 52/79 Debauve and Others [1980] ECR 833, paragraph 8; Case C-23/93 TV10  [1994] ECR I‑4795, paragraph 13; and Case C-17/00 De Coster [2001] ECR I-9445, paragraph 28).
29. As regards the question whether national legislation, such as the legislation at issue in the main proceedings, gives rise to a restriction which is prohibited by Article 49 EC, it should be pointed out that, again according to well-established case-law of the Court, the freedom to provide services requires not only the elimination of all discrimination on grounds of nationality against providers of services who are established in another Member State, but also the abolition of any restriction, even if it applies without distinction to national providers of services and to those of other Member States, which is liable to prohibit, impede or render less advantageous the activities of a provider of services established in another Member State where it lawfully provides similar services (see, inter alia, De Coster , paragraph 29; Joined Cases C‑544/03 and C‑545/03 Mobistar and Belgacom Mobile [2005] ECR I‑7723, paragraph 29; Joined Cases C‑94/04 and C‑202/04 Cipolla and Others [2006] ECR I‑11421, paragraph 56; and Case C‑208/05 ITC  [2007] ECR I‑181, paragraph 55).
30. Furthermore, the Court has already held that Article 49 EC precludes the application of any national rules which have the effect of making the provision of services between Member States more difficult than the provision of services purely within one Member State ( De Coster , paragraph 30; Mobistar and Belgacom Mobile , paragraph 30; Cipolla and Others , paragraph 57; and Case C-76/05 Schwarz and Gootjes-Schwarz  [2007] ECR I-0000, paragraph 67).
31. In pursuance of those rules, the right to the freedom to provide services may be relied on by an undertaking against the Member State in which it is established where the services are provided to recipients established in another Member State and, more generally, whenever a provider of services offers services in a Member State other than the one in which he is established (see, inter alia, Case C-381/93 Commission v France  [1994] ECR I‑5145, paragraph 14, and ITC , paragraph 56).
32. In the present case, it must be held that, as UPC rightly submits, by reason alone of the fact that they do not have must-carry status in the bilingual region of Brussels-Capital under the national legislation at issue in the main proceedings, broadcasters established in Member States other than the Kingdom of Belgium, since they do not, unlike the broadcasters which do have that status, possess an unconditional guarantee that they will be able to access the network held by the cable operators in that region, are required to negotiate conditions for such access with the latter, in competition, for that purpose, with the other broadcasters established in the Kingdom of Belgium or in other Member States which also lack that status. The fact, advanced by Télé Bruxelles and the Belgian Government at the hearing, that no broadcaster established in another Member State has applied for must-carry status is irrelevant in that regard.
33. The national legislation at issue in the main proceedings thus directly determines the conditions for access to the market for services in the bilingual region of Brussels-Capital, by imposing on the providers of services established in Member States other than the Kingdom of Belgium which are not designated under that legislation a burden which is not imposed on the providers of services designated by it. Such legislation is accordingly liable to hinder the provision of services between Member States (see, to that effect, Case C-384/93 Alpine Investments [1995] ECR I-1141, paragraph 38, and De Coster , paragraph 33).
34. It is not clear from the documents before the Court whether Article 13 of the Law of 1995 requires broadcasters to be established in Belgium in order to obtain must-carry status. Nevertheless, even if that provision were to be construed as not expressly reserving that status to broadcasters established in Belgium, since it represents, as the Belgian Government has itself stated, an instrument of cultural policy, the essential purpose of which is to guarantee Belgian citizens access to local and national news and to their own culture, it is more likely to be granted to broadcasters established in Belgium than in Member States other than Belgium.
35. By the order for reference, the Conseil d’État has, moreover, set aside the grant of must-carry status to the only broadcaster established in a Member State other than Belgium, on the ground that that body could not be considered as ‘falling under the powers of’ the French Community for the purposes of Article 13 of the Law of 1995. Thus, it is not in dispute that following that decision the broadcasters having that status by virtue of the Orders of 17 January 2001 and of 24 January 2002 were henceforth all established in Belgium. Moreover, at the hearing, the Belgian Government itself stated that the fact that one of the private broadcasters possessing that status recently decided to transfer its head office to another Member State is a factor which would be taken into account in determining the need to maintain that status, even if the content of the programmes broadcast by that organisation has not changed.
36. It follows that the national legislation at issue in the main proceedings therefore has the effect of making the provision of services between Member States more difficult than the provision of services purely within the Member State concerned.
37. Contrary to what the Belgian Government has argued, both in its written pleadings and at the hearing, it is irrelevant in that regard that the restrictive effects of that legislation also extend to private broadcasters established in Belgium which do not possess must-carry status in the bilingual region of Brussels-Capital. In order for legislation to constitute an obstacle to the provision of services between Member States, it is not necessary for all undertakings in a Member State to be advantaged in comparison with foreign undertakings. It is sufficient that that legislation should benefit certain undertakings established on the national territory (see, to that effect, Case C‑353/89 Commission  v Netherlands [1991] ECR I‑4069, paragraph 25).
38. In those circumstances, it must be held that the national legislation at issue in the main proceedings constitutes a restriction on freedom to provide services within the meaning of Article 49 EC.
39. The Court has consistently held that such a restriction on a fundamental freedom 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 (see, inter alia, Case C-398/95 SETTG [1997] ECR I‑3091, paragraph 21; Case C-6/98 ARD [1999] ECR I-7599, paragraphs 50 and 51; and Cipolla and Others , paragraph 61).
41. In that regard, it should be noted that according to the well-established case-law of the Court, a cultural policy may constitute an overriding requirement relating to the general interest which justifies a restriction on the freedom to provide services. The maintenance of the pluralism which that policy seeks to safeguard is connected with freedom of expression, as protected by Article 10 of the European Convention on Human Rights and Fundamental Freedoms, signed at Rome on 4 November 1950, which freedom is one of the fundamental rights guaranteed by the Community legal order (see Case C-288/89 Collectieve Antennevoorziening Gouda  [1991] ECR I‑4007, paragraph 23; Commission  v Netherlands , paragraph 30; Case C-148/91 Veronica Omroep Organisatie  [1993] ECR I‑487, paragraph 10; and TV10 , paragraph 19).
42. Consequently, it must be accepted that the national legislation at issue in the main proceedings pursues an aim in the general interest, since it seeks to preserve the pluralist nature of the range of television programmes available in the bilingual region of Brussels-Capital and thus forms part of a cultural policy the aim of which is to safeguard, in the audiovisual sector, the freedom of expression of the different social, cultural, religious, philosophical or linguistic components which exist in that region.
43. As regards, secondly, the question whether that legislation is suitable for securing the attainment of the aim pursued, it must be acknowledged, as the Advocate General rightly observed at point 13 of his Opinion, that having regard to the bilingual nature of the Brussels-Capital region national legislation, such as that at issue in the main proceedings constitutes an appropriate means of achieving the cultural objective pursued, since it is capable of permitting, in that region, Dutch-speaking television viewers to have access, via the network of cable operators broadcasting in that area, to television programmes having a cultural and linguistic connection with the Flemish Community and French-speaking television viewers to have similar access to television programmes having a cultural and linguistic connection with the French Community. Such legislation thus guarantees to television viewers in that region that they will not be deprived of access, in their own language, to local and national news as well as to programmes which are representative of their culture.
44. As regards, thirdly, the question whether the legislation at issue in the main proceedings is necessary in order to attain the aim pursued, it must be noted that, while the maintenance of pluralism, through a cultural policy, is connected with the fundamental right of freedom of expression and, accordingly, that the national authorities have a wide margin of discretion in that regard, the requirements imposed under measures designed to implement such a policy must in no case be disproportionate in relation to that aim and the manner in which they are applied must not bring about discrimination against nationals of other Member States (see, to that effect, Case C-379/87 Groener  [1989] ECR 3967, paragraph 19, and Case C-112/00 Schmidberger  [2003] ECR I‑5659, paragraph 82).
45. In particular, such legislation cannot render legitimate discretionary conduct on the part of the national authorities which is liable to negate the effectiveness of provisions of Community law relating to a fundamental freedom (see, to that effect, Case C‑205/99 Analir and Others [2001] ECR I‑1271, paragraph 37, and Case C‑390/99 Canal Satélite Digital  [2002] ECR I‑607, paragraph 35).
46. Therefore, as the Commission points out, the award of must-carry status must first of all be subject to a transparent procedure based on criteria known by broadcasters in advance, so as to ensure that the discretion vested in the Member States is not exercised arbitrarily.  In particular, each broadcaster must be able to determine in advance the nature and scope of the precise conditions to be satisfied and, where relevant, the public service obligations it is required to observe if it is to apply for that status. In that regard, the mere setting out, in the statement of reasons for the national legislation, of declarations of principle and general policy objectives cannot be considered sufficient.
47. Next, the award of must-carry status must be based on objective criteria which are suitable for securing pluralism by allowing, where appropriate, by way of public service obligations, access inter alia to national and local news on the territory in question. Thus, such status should not automatically be awarded to all television channels transmitted by a private broadcaster, but must be strictly limited to those channels having an overall content which is appropriate for the purpose of attaining such an objective. In addition, the number of channels reserved to private broadcasters having that status must not manifestly exceed what is necessary in order to attain that objective.
48. Lastly, the criteria on the basis of which must-carry status is awarded must be non-discriminatory. In particular, the award of that status must not, either in law or in fact, be subject to a requirement of establishment on the national territory (see, to that effect, Case C‑211/91 Commission  v Belgium [1992] ECR I‑6757, paragraph 12).