France Télévisions SA v Playmédia and Conseil supérieur de l’audiovisuel (CSA).
Date: 2018-12-13
18


The activity which consists in offering live streaming of television programmes online does not come under that definition. The mere fact that an undertaking, in order to offer those services, is a user of an electronic communications network as defined in Article 2(a) of the Framework Directive, namely, the Internet, does not demonstrate that it is, itself, a provider of such a network.
19


In this instance, an undertaking, such as Playmédia, which limits itself to offering the live streaming of television programmes online does not provide an electronic communications network, but offers, in contrast, access to the contents of audiovisual services provided on the electronic communication networks, as noted by the Advocate General in point 23 of his Opinion.
20


It clearly follows from recital 5 of the Framework Directive that it is necessary to separate the regulation of transmission from the regulation of content, and that the common regulatory framework, of which the Universal Service Directive is part, does not cover the content of services delivered over electronic communications networks using electronic communications services (see, to that effect, judgment of 7 November 2013, UPC Nederland, C‑518/11, EU:C:2013:709, paragraph 38).
25


In that regard, it must be noted that, pursuant to Article 1(3) of the Framework Directive, the directives which form part of the common regulatory framework are without prejudice to measures taken at national level, in compliance with EU law, to pursue general interest objectives, in particular relating to content regulation and audiovisual policy.
26


Furthermore, it is apparent from recital 5 of the Framework Directive that the common regulatory framework, of which the Universal Service Directive forms part, does not cover the content of services delivered over electronic communications networks using electronic communications services and therefore does not prejudice the measures relating to those services taken at European Union or national level, in compliance with EU law, in order to promote cultural and linguistic diversity and to ensure the protection of media pluralism.
27


Therefore, the Universal Service Directive leaves the Member States free to impose ‘must carry’ obligations, outside of those covered by Article 31(1) of that directive, in particular on undertakings which, without providing electronic communication networks, offer the live streaming of television programmes online.
30


Assuming that the mention of ‘other rules of European Union law’ found in the order for reference must be understood as relating to Article 31(1) of the Universal Service Directive, it must be borne in mind, however, that the provisions of the FEU Treaty on the freedom to provide services do not apply to a situation which is confined in all respects within a single Member State (see, to that effect, judgment of 15 November 2016, Ullens de Schooten, C‑268/15, EU:C:2016:874, paragraph 47 and the case law cited).
32


In paragraphs 50 to 53 of the judgment of 15 November 2016, Ullens de Schooten (C‑268/15, EU:C:2016:874), the Court referred to the four situations in which it could, nevertheless, be necessary for the resolution of the disputes in the main proceedings to interpret the provisions of the Treaties relating to fundamental freedoms, even though the disputes in the main proceedings were confined in all respects within a single Member State (judgment of 20 September 2018, Fremoluc, C‑343/17, EU:C:2018:754, paragraph 20).
33


Nonetheless, the Court of Justice has held that, in a situation such as that at issue in the main proceedings, which is confined in all respects within a single Member State, it is for the referring court to indicate to the Court of Justice, in accordance with the requirements of Article 94 of the Rules of Procedure of the Court, in what way the dispute pending before it, despite its purely domestic character, has a connecting factor with the provisions of EU law on the fundamental freedoms that makes the preliminary ruling on interpretation necessary for it to give judgment in that dispute (judgment of 15 November 2016, Ullens de Schooten, C‑268/15, EU:C:2016:874, paragraph 55).