Commission of the European Communities v Kingdom of the Netherlands.
Date: 1991-07-25
3 The Mediawet is intended to establish a pluralist and non-commercial radio and television broadcasting system. Under Articles 31 and 34 of that law, the air time available for programmes broadcast on the national radio and television network is allocated by the body responsible for supervising the implementation of the Mediawet, the Commissariaat voor de Media, in particular to broadcasting associations, associations of listeners or viewers which have legal personality and represent the main schools of thought in Dutch society.
14 In this respect, the Court has consistently held (see, most recently, the judgments in Case C-154/89 Commission v France [1991] ECR I-659, paragraph 12, Case C-180/89 Commission v Italy [1991] ECR I-709, paragraph 15, and Case C-198/89 Commission v Greece [1991] ECR I-727, paragraph 16) that Article 59 of the Treaty entails, in the first place, the abolition of any discrimination against a person providing services on account of his nationality or the fact that he is established in a Member State other than the one in which the service is provided.
15 As the Court held in its judgment in Case 352/85 Bond van Adverteerders [1988] ECR 2085, at paragraphs 32 and 33, national rules which are not applicable to services without discrimination as regards their origin are compatible with Community law only if they can be brought within the scope of an express exemption, such as that contained in Article 56 of the Treaty. It also appears from that judgment (paragraph 34) that economic aims cannot constitute grounds of public policy within the meaning of Article 56 of the Treaty.
17 As the Court has consistently held (see, most recently, the judgments in Commission v France, cited above, paragraph 15; Commission v Italy, cited above, paragraph 18; and Commission v Greece, cited above, paragraph 18), such restrictions come within the scope of Article 59 if the application of the national legislation to foreign persons providing services is not justified by overriding reasons relating to the public interest or if the requirements embodied in that legislation are already satisfied by the rules imposed on those persons in the Member State in which they are established.
18 In this respect, the overriding reasons relating to the public interest which the Court has already recognized include professional rules intended to protect recipients of the service (Joined Cases 110/78 and 111/78 Van Wesemael [1979] ECR 35, paragraph 28); protection of intellectual property (Case 62/79 Coditel [1980] ECR 881); the protection of workers (Case 279/80 Webb [1981] ECR 3305, paragraph 19; Joined Cases 62/81 and 63/81 Seco v EVI [1982] ECR 223, paragraph 14; Case C-113/89 Rush Portuguesa [1990] ECR I-1417, paragraph 18); consumer protection (Case 220/83 Commission v France [1986] ECR 3663, paragraph 20; Case 252/83 Commission v Denmark [1986] ECR 3713, paragraph 20; Case 205/84 Commission v Germany [1986] ECR 3755, paragraph 30; Case 206/84 Commission v Ireland [1986] ECR 3817, paragraph 20; Commission v Italy, cited above, paragraph 20; and Commission v Greece, cited above, paragraph 21), the conservation of the national historic and artistic heritage (Commission v Italy, cited above, paragraph 20); turning to account the archaeological, historical and artistic heritage of a country and the widest possible dissemination of knowledge of the artistic and cultural heritage of a country (Commission v France, cited above, paragraph 17, and Commission v Greece, cited above, paragraph 21).
19 Lastly, as the Court has consistently held, the application of national provisions to providers of services established in other Member States must be such as to guarantee the achievement of the intended aim and must not go beyond that which is necessary in order to achieve that objective. In other words, it must not be possible to obtain the same result by less restrictive rules (see, most recently, Case C-154/89 Commission v France, cited above, paragraphs 14 and 15; Case C-180/89 Commission v Italy, cited above, paragraphs 17 and 18; Case C-198/89 Commission v Greece, cited above, paragraphs 18 and 19).
24 The Netherlands Government maintains that the restrictive effects of that preferential system affect service undertakings established in the Netherlands other than the NOPB and undertakings established in other Member States to the same extent.
25 In any event, that fact is not such as to exclude the preferential system enjoyed by the NOPB from the field of application of Article 59 of the Treaty. Moreover, it is not necessary for all undertakings in a Member State to be advantaged in comparison with foreign undertakings. It is sufficient that the preferential system set up should benefit a national provider of services.
28 The recent adjustments to the preferential system in question are not such as to alter the assessments set out above. On the one hand, the obligation laid down in the Mediawet continues to exist as far as the production of radio programmes is concerned. On the other hand, the Court has consistently held (see, most recently, Case C-361/88 Commission v Germany [1991] ECR I-2567, paragraph 31, and Case C-59/89 Commission v Germany [1991] ECR I-2607, paragraph 35) that the subject-matter of an action brought under Article 169 of the Treaty is fixed by the reasoned opinion of the Commission and that, even where the infringement has been eliminated after the period specified in the second paragraph of that article, the pursuit of the action retains an interest for the purpose of establishing the basis of a liability which a Member State may be in the position of incurring, as a result of its infringement, vis-à-vis other Member States, the Community or individuals.
29 The Netherlands Government further argues that derogations from Article 59 are lawful if they are justified on grounds relating to the general interest. In this respect, it states that the restrictions in question are justified by requirements relating to the cultural policy which it has introduced in the audio-visual sector. It explains that the aim of the policy is to safeguard the freedom of expression of the various (in particular social, cultural, religious and philosophical) components making up the Netherlands, as it must also be available in the press, on the radio or on television. By making technical resources available to the various national broadcasting bodies, the NOPB enables the pluralist and non-commercial nature of the Dutch audio-visual system to be maintained. It adds that the NOPB also performs cultural tasks, such as managing a sound library, keeping film archives and managing an orchestra and choirs. It maintains that reasons of cultural policy such as those must be included among the considerations of the general interest which may justify restrictive measures, even if those measures are of an economic nature.
30 A cultural policy understood in that sense may indeed 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 Dutch 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, which is one of the fundamental rights guaranteed by the Community legal order (Case 4/73 Nold v Commission [1974] ECR 491, paragraph 13).
34 In this connection, it is sufficient to observe that it appears from the judgment in Case C-202/88 France v Commission [1991] ECR I-1223, at paragraph 22, that even though Article 90 of the Treaty presupposes the existence of undertakings which have certain special or exclusive rights, it does not follow that all the special or exclusive rights are necessarily compatible with the Treaty. Such compatibility must be assessed in the light of the different rules to which Article 90(1) refers.
38 As regards the conditions laid down in the second sentence of Article 66(1)(b) of the Mediawet concerning the transmission in the Netherlands of advertising contained in radio and television programmes broadcast from abroad, it must be observed from the outset that those conditions entail a two-fold restriction on the freedom to provide services. First, they prevent the operators of cable networks established in a Member State from transmitting radio or television programmes made available by broadcasters established in other Member States which do not satisfy those conditions. Secondly, they restrict the possibilities available to such broadcasters to include in their programmes advertisements intended specifically for the Dutch public for the benefit of advertisers established in particular in the State in which the programmes are to be received.