Sky Österreich GmbH v Österreichischer Rundfunk.
Date: 2013-01-22
26. In order to determine whether a body making a reference is a court or tribunal for the purposes of Article 267 TFEU, which is a question governed by European Union law alone, the Court takes account of a number of factors, such as whether the body is established by law, whether it is permanent, whether its jurisdiction is compulsory, whether its procedure is inter partes, whether it applies rules of law and whether it is independent (Case C-196/09 Miles and Others  [2011] ECR I-5105, paragraph 37 and the case-law cited).
27. The Court has already had the opportunity to determine, in the case which gave rise to the judgment in Österreichischer Rundfunk , whether the Bundeskommunikationssenat is a court or tribunal for the purposes of Article 234 EC. In that regard, it held, in paragraphs 19 to 21 of its judgment, that, on the basis of the provisions relating to the establishment and functioning of the Bundeskommunikationssenat, applicable in that case, that body had to be considered to be a court or tribunal for the purposes of Article 234 EC.
34. In those circumstances, the question arises as to whether the guarantees provided in Article 17(1) of the Charter extend to audiovisual broadcasting rights acquired contractually. The protection granted by that article does not apply to mere commercial interests or opportunities, the uncertainties of which are part of the very essence of economic activity (Joined Cases C-120/06 P and C-121/06 P FIAMM and Others  v Council and Commission  [2008] ECR I-6513, paragraph 185 and the case-law cited), but applies to rights with an asset value creating an established legal position under the legal system, enabling the holder to exercise those rights autonomously and for his benefit.
36. However, in the light of the circumstances of the case in the main proceedings, the question arises as to whether the exclusive rights at issue constitute an established legal position within the meaning of paragraph 34 above.
42. The protection afforded by Article 16 of the Charter covers the freedom to exercise an economic or commercial activity, the freedom of contract and free competition, as is apparent from the explanations relating to that article, which, in accordance with the third subparagraph of Article 6(1) TEU and Article 52(7) of the Charter, have to be taken into consideration for the interpretation of the Charter (Case C-279/09 DEB  [2010] ECR I-13849, paragraph 32).
43. In addition, the freedom of contract includes, in particular, the freedom to choose with whom to do business (see, to that effect, Joined Cases C-90/90 and C-91/90 Neu  [1991] ECR I-3617, paragraph 13), and the freedom to determine the price of a service (see, to that effect, Case C-437/04 Commission  v Belgium [2007] ECR I-2513, paragraph 51, and Case C-213/10 F-TEX  [2012] ECR, paragraph 45).
45. However, in accordance with the Court’s case-law, the freedom to conduct a business is not absolute, but must be viewed in relation to its social function (see, to that effect, Joined Cases C-184/02 and C-223/02 Spain and Finland  v Parliament  and Council [2004] ECR I-7789, paragraphs 51 and 52, and Case C-544/10 Deutsches Weintor  [2012] ECR, paragraph 54 and the case-law cited).
46. On the basis of that case-law and in the light of the wording of Article 16 of the Charter, which differs from the wording of the other fundamental freedoms laid down in Title II thereof, yet is similar to that of certain provisions of Title IV of the Charter, the freedom to conduct a business may be subject to a broad range of interventions on the part of public authorities which may limit the exercise of economic activity in the public interest.
47. That circumstance is reflected, inter alia, in the way in which Article 52(1) of the Charter requires the principle of proportionality to be implemented.
48. In accordance with Article 52(1) of the Charter, any limitation on the exercise of the rights and freedoms recognised by the Charter must be provided for by law and respect the essence of those rights and freedoms and, in compliance with the principle of proportionality, must be necessary and actually meet objectives of general interest recognised by the European Union or the need to protect the rights and freedoms of others.
50. In so far as concerns the proportionality of the interference found to exist, the Court recalls that, according to settled case-law, the principle of proportionality requires that measures adopted by European Union institutions do not exceed the limits of what is appropriate and necessary in order to attain the objectives legitimately pursued by the legislation in question; when there is a choice between several appropriate measures recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued (Case C-343/09 Afton Chemical  [2010] ECR I-7027, paragraph 45, and Joined Cases C-581/10 and C-629/10 Nelson and Others  [2012] ECR, paragraph 71 and the case-law cited).
51. In that regard, the Court notes, first of all, that the marketing on an exclusive basis of events of high interest to the public is increasing and liable to restrict considerably the access of the general public to information relating to those events. It is in that connection that Article 15 of Directive 2010/13 seeks, as is apparent from recitals 48 and 55 in the preamble thereto, to safeguard the fundamental freedom to receive information, guaranteed under Article 11(1) of the Charter, and to promote pluralism of the media in the production and programming of information in the European Union, protected under Article 11(2) of the Charter.
52. The safeguarding of the freedoms protected under Article 11 of the Charter undoubtedly constitutes a legitimate aim in the general interest (see, to that effect, Case C-250/06 United Pan-Europe Communications Belgium and Others [2007] ECR I-11135, paragraph 42), the importance of which in a democratic and pluralistic society must be stressed in particular (see, to that effect, Case C-336/07 Kabel Deutschland Vertrieb und Service  [2008] ECR I-10889, paragraph 33, and Case C-163/10 Patriciello  [2011] ECR I-7565, paragraph 31). That importance is particularly evident in the case of events of high interest to the public. It must thus be found that Article 15 of Directive 2010/13 does pursue an objective in the general interest.
59. In that regard, it should be noted that the European Union legislature was required to strike a balance between the freedom to conduct a business, on the one hand, and the fundamental freedom of citizens of the European Union to receive information and the freedom and pluralism of the media, on the other.
60. Where several rights and fundamental freedoms protected by the European Union legal order are at issue, the assessment of the possible disproportionate nature of a provision of European Union law must be carried out with a view to reconciling the requirements of the protection of those different rights and freedoms and a fair balance between them (see, to that effect, Case C-275/06 Promusicae  [2008] ECR I-271, paragraphs 65 and 66, and Deutsches Weintor , paragraph 47).