Commission of the European Communities v Kingdom of Belgium.
Date: 1996-09-10
15 According to the Belgian Government, Directive 89/552 concerns only primary television broadcasting, and does not cover transmission by cable, which is a secondary form of broadcasting, that is to say, the communication of programmes broadcast by an organization other than the originating organization ("retransmission").
16 The Belgian Government advances three arguments in that regard. First, as defined in Article 1(a) of Directive 89/552, the term "television broadcasting" clearly refers only to the initial broadcasting of television programmes.
17 Next, the term "retransmission" used in Article 2(2) of Directive 89/552 does not cover cable television broadcasts, as is confirmed, moreover, by the title of Council Directive 93/83/EEC of 27 September 1993 on the coordination of certain rules concerning copyright and rights related to copyright applicable to satellite broadcasting and cable retransmission (OJ 1993 L 248, p. 15), which adds the word "cable" to the term "retransmission".
18 Lastly, the reason why cable television broadcasting was not covered by Directive 89/552 is that it was not yet very widespread at the time when the directive was adopted.
19 Those arguments cannot be accepted.
20 As the Commission has rightly observed, the ninth recital in the preamble to Directive 89/552 expressly refers to the disparities between the laws, regulations and administrative measures in Member States concerning the pursuit of activities as television broadcasters and cable operators, without drawing any distinction between primary and secondary television broadcasting. According to the tenth recital, all restrictions on freedom to provide broadcasting services within the Community which result from such disparities must be abolished.
21 As regards the concept of "television broadcasting", the definition given in Article 1(a) of Directive 89/552 cannot be interpreted as a restriction of its scope. Article 2(2), which forms part of Chapter II of Directive 89/552, entitled "General provisions", provides that Member States are to ensure freedom of reception and are not to restrict retransmission on their territory of television broadcasts from other Member States; cable retransmission is not excluded.
22 As regards Directive 93/83, it should be observed, first, that the third recital in the preamble to that directive provides that broadcasts transmitted across frontiers within the Community, in particular by satellite and cable, are one of the most important ways of pursuing the objectives of the Community. After recalling, in the fourth recital, the objectives of Directive 89/552, the fifth recital states that the achievement of those objectives in respect of cross-border satellite broadcasting and the cable retransmission of programmes from other Member States was still obstructed by a series of disparities between national rules on copyright. Lastly, according to the twelfth recital, the legal framework for a single audiovisual area laid down in Directive 89/552 must be supplemented with reference to copyright.
23 It follows that Directive 93/83 confirms that Directive 89/552 covers the cable retransmission of television programmes.
24 Lastly, as regards the genesis of Directive 89/552, the fourth recital in the preamble to that directive expressly refers to the adoption by the Council of Europe of the Convention on Transfrontier Television. As is apparent from Article 3 thereof, that convention also applies to television programmes retransmitted by cable.
25 Consequently, the fact that cable distribution was not very widespread at the time when Directive 89/552 was adopted cannot be relied on in support of an argument that this activity is excluded from the scope of that directive.
The scope of the 1987 decree
34 It follows, first, that it is solely for the Member State from which television broadcasts emanate to monitor the application of the law of the originating Member State applying to such broadcasts and to ensure compliance with Directive 89/552, and, second, that the receiving Member State is not authorized to exercise its own control in that regard.
35 That interpretation is borne out by the preamble to Directive 89/552. According to the tenth recital, all restrictions on freedom to provide broadcasting services must be abolished under the Treaty. The twelfth and fourteenth recitals provide that it is necessary and sufficient in that regard that all broadcasts comply with the law of the Member State from which they emanate and with the provisions of the directive. According to the fifteenth recital, the requirement that the originating Member State should verify that broadcasts comply with national law as coordinated by Directive 89/552 is sufficient under Community law to ensure free movement of broadcasts without secondary control on the same grounds in the receiving Member States.
36 Only in the circumstances provided for in the second sentence of Article 2(2), to which the second part of the fifteenth recital refers, may the receiving Member State exceptionally suspend retransmission of televised broadcasts, on the conditions laid down by that provision. Moreover, if a Member State considers that another Member State has failed to fulfil its obligations under the directive, it may, as the Commission has rightly observed, bring Treaty infringement proceedings under Article 170 of the EC Treaty or request the Commission itself to take action against that Member State under Article 169 of the Treaty.
37 It is settled case-law that a Member State cannot unilaterally adopt, on its own authority, corrective or protective measures designed to obviate any breach by another Member State of rules of Community law (judgments in Joined Cases 90/63 and 91/63 Commission v Luxembourg and Belgium [1964] ECR 625, Case 232/78 Commission v France [1979] ECR 2729, paragraph 9, and Case C-5/94 Hedley Lomas, not yet published in the European Court Reports, paragraph 20).
73 It is true that the Court has held that the subject-matter of an application made under Article 169 of the Treaty is circumscribed by the pre-litigation procedure provided for by that article, and that the Commission' s reasoned opinion and the application to the Court must therefore be based on the same objections (Case C-105/91 Commission v Greece, cited above, paragraph 12).
74 That requirement cannot, however, go so far as to make it necessary that the national provisions mentioned in the reasoned opinion and in the application should always be completely identical. Where a change in the legislation occurred between those two procedural stages, it is sufficient that the system established by the legislation contested in the pre-litigation procedure has, on the whole, been maintained by the new measures which were adopted by the Member State after the issue of the reasoned opinion and have been challenged in the application (judgments in Case 45/64 Commission v Italy [1965] ECR 857, Case C-42/89 Commission v Belgium [1990] ECR I-2821, and Case C-105/91 Commission v Greece, cited above, paragraph 13).
86 As has already been stated in paragraph 34 of this judgment, it is solely for the Member States from which programmes emanate to monitor compliance with the provisions of the directive by the broadcasters under their jurisdiction. Even if the provisions of the decree of 4 May 1994 at issue were intended merely to introduce a system of verification, the requirement of prior authorization, which constitutes a serious obstacle to the free movement of programmes in the Community provided for by the directive, goes beyond what is necessary for ascertaining that the programmes in question emanate from another Member State.
88 In this regard the Court reiterates that the Member States must have mutual trust in each other as far as controls carried out on their respective territories are concerned (judgments in Case 46/76 Bauhuis [1977] ECR 5, paragraph 22, and Hedley Lomas, cited above, paragraph 19).
92 As the Advocate General observes in points 100 and 101 of his Opinion, Directive 89/552 concerns matters covered by public policy, public morality or public security, and, inasmuch as the rules which it lays down are not exhaustive, the protection of those interests cannot in any event justify a general system of prior authorization of programmes coming from other Member States, which would entail abolition of the freedom to provide services (Case C-211/91 Commission v Belgium, paragraph 12).