European Commission v Kingdom of Belgium.
Date: 2011-03-03
24. First, however, the Court has already found that it is possible to limit the subject-matter of the proceedings at the stage of the proceedings before the Court (see, in particular, Case C-221/04 Commission v Spain  [2006] ECR I-4 515, paragraph 33; and judgment of 14 June 2007 in Case C-148/05 Commission  v Ireland , not published in the ECR, paragraph 35.
42. It must be noted from the outset that the designation of certain television channels as being subject to the ‘must-carry’ obligation, under Article 13 of the Law of 30 March 1995, constitutes a restriction of the freedom to provide services within the meaning of Article 56 TFEU, as the Court has already held, in relation to that designation made by Ministerial Order for certain private broadcasters under the initial version of that national provision, in United Pan-Europe Communications Belgium and Others, paragraphs 28 to 38.
43. The Court has consistently held that such a restriction of a fundamental freedom guaranteed by the Treaty may be justified 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 ( United Pan-Europe Communications Belgium and Others , paragraph 39 and the case-law cited). It is in the same vein that Article 31(1) of the Universal Service Directive allows Member States to impose reasonable ‘must-carry’ obligations where they ‘are necessary to meet clearly defined general interest objectives’ and requires them to be ‘proportionate and transparent’.
44. Here, the objective pursued, identified in Article 13 of the Law of 30 March 1995, is to ensure plurality and cultural diversity. According to the well-established case-law of the Court, and as the Commission acknowledges in the present case, a cultural policy may constitute an overriding requirement relating to the general interest which justifies a restriction of the freedom to provide services (see, to that effect, United Pan-Europe Communications Belgium and Others , paragraph 41 and the cited case-law).
49. Consequently, in so far as it is the manner in which the Universal Service Directive is transposed into national legislation which is the subject-matter of the action for failure to fulfil obligations, it is appropriate to determine whether the wording of the legislation itself harbours the insufficiencies or defects of transposition (see, to that effect, Case C‑392/96 Commission  v Ireland  [1999] ECR I‑5901, paragraphs 59 and 60; judgment of 20 November 2008 in Case C‑66/06 Commission  v Ireland , not published in the ECR, paragraph 59; and judgment of 12 February 2009 in Case C‑475/07 Commission  v Poland , not published in the ECR, paragraph 54).
52. Although it is true that the first line of Article 13 of the Law of 30 March 1995 provides that an operator is, in order to guarantee plurality and cultural diversity, to transmit, simultaneously and in their entirety, the television programmes of certain broadcasters falling under the powers of the Belgian Communities. Moreover, as the Court has held, the Law of 30 March 1995 thus pursues a cultural general interest objective which is, moreover, suitable for securing the attainment of the aim pursued ( United Pan-Europe Communications Belgium and Others , paragraphs 42 and 43).
53. However, in the context of an interpretation of Article 56 TFEU, the Court has held, as regards the question whether the earlier version of the second indent of the first paragraph of Article 13 of the Law of 30 March 1995 is necessary in order to attain the aim pursued, 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 ( United Pan-Europe Communications Belgium and Others , paragraph 44). Accordingly, ‘must-carry’ status must be strictly limited to those channels having an overall content which is capable of  attaining the general interest objective pursued (see, to that effect, United Pan-Europe Communications Belgium and Others , paragraph 47 and Case C-336/07 Kabel Deutschland Vertieb und Service  [2008] ECR I-10889, paragraph 42).
62. As regards the specified nature of the radio and television channels which may be covered by ‘must-carry’ status, the Court has already held that it is apparent from the wording of Article 31(1) of the Universal Service Directive that Member States must specify which channels are to be granted ‘must carry’ status (see Kabel Deutschland Vertrieb und Service , paragraph 24).
63. Furthermore, the Court has held that 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 capable of attaining the general interest objective pursued (see United Pan-Europe Communications Belgium and Others , paragraph 47; and Kabel Deutschland Vertieb und Service , paragraph 42).
66. Lastly, it must be noted that 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 in the national territory ( United Pan-Europe Communications Belgium and Others , paragraph 48).