TV Play Baltic AS v Lietuvos radijo ir televizijos komisija.
Date: 2019-12-11
21


It should be noted that the Court has held that an undertaking which limits itself to offering 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 (see, to that effect, judgment of 13 December 2018, France Télévisions, C‑298/17, EU:C:2018:1017, paragraphs 18 and 19).
26


It should be noted that the Court has held that the directives which form part of the common regulatory framework, including the Framework Directive and the Universal Service Directive, 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, since that common framework does not apply to the content of services delivered over electronic communications networks (see, to that effect, judgment of 13 December 2018, France Télévisions, C‑298/17, EU:C:2018:1017, paragraphs 25 and 26).
27


As a result, the Court has held that 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 (judgment of 13 December 2018, France Télévisions, C‑298/17, EU:C:2018:1017, paragraph 27).
33


First of all, it must be noted that EU law has not been fully harmonised in the electronic communications services sector and, accordingly, the national legislation at issue in the main proceedings must be considered in the light of Article 56 TFEU so far as concerns those aspects that are not covered in particular by the Framework Directive and the Universal Service Directive (see, to that effect, judgment of 30 April 2014, UPC DTH, C‑475/12, EU:C:2014:285, paragraph 70).
34


According to settled case-law, the transmission of television signals, including the transmission of such signals by cable television, constitutes, as such, a supply of services for the purposes of Article 56 TFEU (judgment of 13 December 2007, United Pan-Europe Communications Belgium and Others, C‑250/06, EU:C:2007:783, paragraph 28 and the case-law cited).
35


As regards the question whether national legislation, such as that at issue in the main proceedings, gives rise to a restriction which is prohibited by Article 56 TFEU, it should be noted that, according to the case-law, the freedom to provide services requires not only the elimination of all discrimination on grounds of nationality against providers of services who are established in another Member State, but also the abolition of any restriction, even if it applies without distinction to national providers of services and to those of other Member States, which is liable to prohibit, impede or render less advantageous the activities of a provider of services established in another Member State where it lawfully provides similar services (judgment of 13 December 2007, United Pan-Europe Communications Belgium and Others, C‑250/06, EU:C:2007:783, paragraph 29 and the case-law cited).
37


According to the case-law, such a restriction of a fundamental freedom guaranteed by the FEU Treaty may be justified where it serves overriding requirements in the public 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 (judgment of 13 December 2007, United Pan-Europe Communications Belgium and Others, C‑250/06, EU:C:2007:783, paragraph 39 and the case-law cited).
38


In that regard, it should be noted that, according to the Court’s settled case-law, a cultural policy may constitute an overriding requirement relating to the general interest which justifies a restriction of the freedom to provide services. The maintenance of the pluralism which that 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, signed at Rome on 4 November 1950, which freedom is one of the fundamental rights guaranteed by the EU legal order and, in particular, by Article 11 of the Charter of Fundamental Rights of the European Union (see, to that effect, judgment of 13 December 2007, United Pan-Europe Communications Belgium and Others, C‑250/06, EU:C:2007:783, paragraph 41 and the case-law cited).