1 These requests for a preliminary ruling concern the interpretation (i) of Directive 2010/13/EU of the European Parliament and of the Council of 10 March 2010 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services (Audiovisual Media Services Directive) (OJ 2010 L 95, p. 1), as amended by Directive (EU) 2018/1808 of the European Parliament and of the Council of 14 November 2018 (OJ 2018 L 303, p. 69) (‘Directive 2010/13’), and (ii) of Articles 20 and 21 and Article 49(1) of the Charter of Fundamental Rights of the European Union (‘the Charter’).
2 The requests have been made in two sets of proceedings between, on the one hand, Makeleio EPE and Zougla G.R. AE (‘Zougla’), in Case C‑555/23 and in Case C‑556/23, respectively, and, on the other, the Ethniko Symvoulio Radiotileorasis (ESR) (National Broadcasting Council, Greece; ‘the ESR’), concerning the lawfulness of two decisions imposing on each of those companies an administrative fine for broadcasting audiovisual content of poor quality and for failing to comply with the obligation to respect human value and dignity (‘the decisions at issue in the main proceedings’).
3 Recitals 11, 18, 21, 38, 41, 59, 83 and 104 of Directive 2010/13 state:
4 Article 1(1) of Directive 2010/13 provides: ‘For the purposes of this Directive, the following definitions shall apply:
5 Article 2(1) of Directive 2010/13 provides: ‘Each Member State shall ensure that all audiovisual media services transmitted by media service providers under its jurisdiction comply with the rules of the system of law applicable to audiovisual media services intended for the public in that Member State.’
6 Under Article 4(1) of that directive: ‘Member States shall remain free to require media service providers under their jurisdiction to comply with more detailed or stricter rules in the fields coordinated by this Directive, provided that such rules are in compliance with Union law.’
7 Article 6(1) of that directive is worded as follows: ‘Without prejudice to the obligation of Member States to respect and protect human dignity, Member States shall ensure by appropriate means that audiovisual media services provided by media service providers under their jurisdiction do not contain any:
8 Article 9(1) of Directive 2010/13 provides: ‘Member States shall ensure that audiovisual commercial communications provided by media service providers under their jurisdiction comply with the following requirements:
9 Recital 7 of Directive (EU) 2018/1972 of the European Parliament and of the Council of 11 December 2018 establishing the European Electronic Communications Code (OJ 2018 L 321, p. 36) states: ‘… The content of television programmes is covered by [Directive 2010/13]. The regulation of audiovisual policy and content aims at achieving general interest objectives, such as freedom of expression, media pluralism, impartiality, cultural and linguistic diversity, social inclusion, consumer protection and the protection of minors. …’
10 Under Article 2(1) of Directive 2018/1972, which replaced Article 2(a) of Directive 2002/21: ‘For the purposes of this directive, the following definitions shall apply:
11 Article 8 of nomos 4779/2021 Ensomatosi stin ethniki nomothesia tis Odigias (EE) 2010/13 tou Europaïkou Koinovouliou kai tou Symvouliou tis 10is Martíou 2010 gia ton syntonismo orismenon nomothetikon, kanonistikon kai dioikitikon diataxeon ton kraton melon skhetika me tin parochi ypiresion optikoakoustikon meson, opos echei tropopoiitheí me tin Odigía (EE) 2018/1808 tou Europaïkou Koinovouliou kai tou Symvouliou tis 14is Noemvríou 2018 kai alles diataxeis armodiotitas tis Genikis Grammateias Epikoinonías kai Enimerosis (Law 4779/2021 transposing into national law Directive 2010/13/EU of the European Parliament and of the Council of 10 March 2010 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services, as amended by Directive (EU) 2018/1808 of the European Parliament and of the Council of 14 November 2018, and other provisions within the competence of the Secretariat General of Communication and Information) (‘Law 4779/2021’) provides: ‘Audiovisual media services must not contain any incitement to violence or hatred against a group of persons or against a member of a group on grounds of race, colour, national or ethnic origin, ancestry, religion, disability, sexual orientation, identity, or gender characteristics.’
12 Article 36(1) of Law 4779/2021 provides: ‘In the event of an infringement of Article 8 … by a media service provider, whether subscription-based or not, [the ESR] shall impose the penalties provided, respectively, by nomos 2644/1998 [- Gia tin parochi syndromitikon radiofonikon kai tileoptikon ypiresion kai synafeis diataxeis (Law 2644/1998 on the provision of pay-radio and pay-television services and related provisions) of 13 October 1998 (FEK A’ 233),] and by nomos 2328/1995 [- Nomiko kathestos tis idiotikis tileorasis kai tis topikis radiophonías, rythmisi thematon tis radiotileoptikis agoras kai alles diataxeis (Law 2328/1995 on the legal status of private television broadcasters and local radio and television broadcasters, the regulation of the broadcasting market and other provisions) of 3 August 1995 (FEK A’ 159)].’
13 Under Article 1 of Law 2328/1995, in the version applicable to the disputes in the main proceedings (‘Law 2328/1995’): ‘1. The creation, establishment and operation of private television stations that transmit a signal simultaneously received by domestic receivers on the channels or radio frequencies available for that purpose shall be subject to the grant of a licence in accordance with the provisions of this Law. Licenses shall be granted in order to serve the public interest and their use constitutes a public service. The stations to which such licences are granted are required to ensure the quality of the programming, the objectivity of information, the safeguarding of pluralism, and the promotion of culture through the broadcasting of literary and artistic broadcasts. 2. The creation, establishment and operation licence shall pertain to wireless signal transmissions, radio frequency channels, the use of terrestrial transmitters or of satellites …’
14 Article 4(1)(a) of Law 2328/1995 is worded as follows: ‘In any case where the provisions of national legislation, of EU [legislation] or of international law that govern, directly or indirectly, private television stations, and, more generally, the operation of private television … have been infringed, the ESR shall decide … to impose one or several of the following penalties … The choice of the type of administrative penalty and its calculation shall be made in line with the seriousness of the infringement, the viewership of the programme in the context of which the infringement was committed, the share of the market for radio and television services that the licence holder, as the case may be, has acquired, the amount of investment that has been made or is planned, and the possible existence of repeated infringement …’
15 Article 4(1) of nomos 2863/2000 - Ethniko Symvoulio Radiotileorasis kai alles arches kai organa tou tomea parochis radiotileoptikon ypiresion (Law 2863/2000 on the National Broadcasting Council and other broadcasting authorities and bodies) of 29 November 2000 (FEK A’ 262), in the version applicable to the disputes in the main proceedings, provides: ‘The ESR shall exercise the direct control of the State, as laid down by the Syntagma tis Elladas (Constitution of the Hellenic Republic), in the field of provision of radio and television services of any kind, by adopting enforceable individual administrative acts. In particular: …
16 Under Article 1(1) of Law 2644/1998: ‘The provision of pay-radio and pay-television services is subject, in accordance with Article 15 of the Constitution of the Hellenic Republic, to the direct control of the State and constitutes a public service aimed at supplying objective and impartial information as well as high-level continuing education and entertainment to the public. For the purposes of this Law, the provision of pay-radio and pay-television services means the direct transmission to the public, by any technical means or method (terrestrial transmitters only, cable network or satellite), of radio and television programmes access to which is subject to conditions imposed by the licence holder under the provisions of this Law. The provision of television services via other broadband networks shall also be regarded as a provision of pay-radio and pay-television services, irrespective of whether the service provider has been granted a licence by [the ESR] in respect of the programmes which it broadcasts or whether it broadcasts, under a contract to that end, programmes authorised in another Member State.’
17 Under Article 10 of Law 2644/1998: ‘1. The provisions of Article 3(1) to (12), (14), (17) and (22) of [Law 2328/1995] relating to respect for the dignity, private life and general participation of individuals in economic, social and political life, the terms and conditions for the broadcasting of radio and television advertising and other related messages, the protection of children, the safeguarding of political pluralism and access by parties to radio and television broadcasting, and the protection of the interests of consumers and, more generally, of the interests of citizens, shall apply also to the content of pay-radio and pay-television services. 2. The codes of ethics adopted in accordance with Article 3(2) of nomos 1866/1989 - Idrysi Ethinkou Symvouliou Radiotileoraseos kai parochi adeion gia tin idrysi kai leitourgia tileoptikon stathmon (Law 1866/1989 on the establishment of the National Broadcasting Council and the grant of licences for the creation and operation of television stations) of 6 October 1989 (FEK A’ 222), as well as those drawn up by the ESR and adopted in accordance with the procedure referred to in Article 3(15) of [Law 2328/1995], shall apply also to audiovisual content broadcast by licence holders under this Law …’
18 Pursuant to Article 12 of Law 2644/1998, the ESR is to impose administrative penalties in the event of infringement of the provisions of that law, of EU law or of international law that govern the provision of radio and television services covered by that law.
19 Article 1 of proedriko diatagma 77/2003 - Kodikas deontologias eidiseografikon kai allon dimosiografikon kai politikon ekpompon (Presidential Decree 77/2003 on the code of ethics for news and other journalistic and political broadcasts) of 28 March 2003 (FEK A’ 75), in the version applicable to the disputes in the main proceedings (‘Presidential Decree 77/2003’), provides: ‘The provisions of this Code shall apply to news and journalistic and political broadcasts on public and private radio and television …’
20 Article 2(1) of Presidential Decree 77/2003 provides: ‘News and other journalistic and political broadcasts must meet the level of quality required by the social mission of radio and television and by the cultural development of the country …’
21 Article 4 of Presidential Decree No 77/2003 provides: ‘1. It is not permitted to portray persons in a manner which can, in the specific circumstances, encourage their humiliation, social isolation or discrimination by a part of the public on the grounds of, in particular, sex, race, nationality, language, religion, ideology, age, illness, disability, sexual orientation, or occupation. 2. The dissemination of degrading, racist, xenophobic or sexist messages or descriptions or of intolerant views is not permitted and, more generally, ethnic or religious minorities and other vulnerable or disadvantaged groups must not be harmed.’
22 Article 9(2) of Presidential Decree 77/2003 is worded as follows: ‘Persons who take part or are mentioned in the broadcasts must be treated fairly, properly and with dignity. In particular, their personality, honour and dignity may not be undermined. Their private and family life, their professional activity and their right to freedom of expression must also be respected. Engaging in critique is not incompatible with respect for the rights of the persons shown or mentioned.’
23 Makeleio and Zougla are companies incorporated under Greek law which operate newspaper websites that also offer audiovisual content.
24 On 29 June 2021, Makeleio broadcast on its website, www.makeleio.gr, an audiovisual programme in which the presenter referred to the visit of representatives of the LGBT+ community to the Greek Prime Minister by using insulting expressions, and in particular made offending and denigrating statements regarding homosexual persons. That presenter made ironic comments about the sexual orientation of those persons and indirectly encouraged the public to engage in verbal or physical aggression towards them, in which, according to him, he had himself engaged when younger.
25 On 22 February 2021, Zougla retransmitted via its website, www.zougla.gr, a radio broadcast of a radio station that also broadcasts via the internet. That broadcast was shown on Zougla’s website in audiovisual form. In that broadcast, the presenter, in relation to a criminal case concerning certain acts of paedophilia of which third parties were accused, verbally attacked certain political figures by making slanderous and offensive comments about them. In that context, that presenter described, in particular, one of those persons as ‘knowingly protecting pederasts and paedophiles and promoting them to positions of responsibility that allowed them to pursue the satisfaction of their sick sexual appetites’ and stated that the person concerned ‘[was] at the very least an instigator and co-perpetrator’ of acts of paedophilia and of rape involving minors that were attributed to third parties.
26 Those two broadcasts (‘the broadcasts at issue in the main proceedings’) were the subject of a procedure before the ESR.
27 The ESR found that the broadcast transmitted by Makeleio had repeatedly referred, in a manner that was clearly derogatory and offensive, to a specific group of persons based on the sexual orientation of its members, encouraging their humiliation and social stigmatisation. In the light of those facts, in Decision No 140/2021, the ESR found that Makeleio had, first, infringed the prohibition on incitement to violence or hatred towards a group of persons on the ground of the sexual orientation of its members, laid down in Article 8 of Law 4779/2021, and second, failed to comply with the obligation to respect human value and dignity and infringed the prohibition on the broadcasting of content of poor quality under Article 1(1) of Law 2328/1995 and Article 2(1), Article 4 and Article 9(2) of Presidential Decree 77/2003. Consequently, the ESR imposed on Makeleio a fine of EUR 30 000 for each of the two infringements committed.
28 In respect of the broadcast retransmitted by Zougla, the ESR found that, under the guise of actual information and facts, that broadcast had conveyed to the public assumptions and views of its presenter that were entirely unfounded and were insulting to the persons mentioned therein, thereby entailing ‘extremely poor quality’ as regards the retransmitted radio broadcast and undermining the dignity of those persons. In the light of those facts, in Decision No 99/2021, the ESR found that Zougla had failed to comply with the obligation to respect human value and dignity and had infringed the prohibition on the broadcasting of content of poor quality under Article 1(1) of Law 2328/1995 and Article 2(1), Article 4 and Article 9(2) of Presidential Decree 77/2003. Consequently, on account of the commission of those two infringements, the ESR imposed two fines on Zougla of EUR 40 000 and EUR 80 000, respectively.
29 When adopting the decisions at issue in the main proceedings, the ESR found that, according to their wording, the provisions of national law on which it based those decisions were intended to apply only to traditional providers of television services, namely television broadcasting by television operators by means of broadcasting frequencies, whether analogue or digitally, by satellite, or via broadband networks.
30 Nevertheless, on the basis of the interpretative criteria regarding the concept of ‘audiovisual media services’ within the meaning of Directive 2010/13, pursuant to the case-law arising from the judgment of 21 October 2015, New Media Online (C‑347/14, EU:C:2015:709), from which it is clear that audiovisual content broadcast on the internet by an operator that does not operate a television station is covered by that concept, the ESR interpreted those provisions of national law as meaning that, notwithstanding their wording, they are applicable also to providers of audiovisual content broadcast on the internet (‘providers of online television services’), which include Makeleio and Zougla.
31 Makeleio and Zougla brought actions for annulment before the Simvoulio tis Epikrateias (Council of State, Greece), which is the referring court, against the decisions at issue in the main proceedings.
32 According to the position prevailing within the Symvoulio tis Epikrateias (Council of State), the national provisions on which the ESR based the decisions at issue in the main proceedings would have to be interpreted as not applying to providers of online television services.
33 In those circumstances, the Simvoulio tis Epikrateias (Council of State) decided to stay the proceedings and to refer the following questions, worded identically in Cases C‑555/23 and C‑556/23, to the Court of Justice for a preliminary ruling:
34 By decision of the President of the Court of 2 October 2023, Cases C‑555/23 and C‑556/23 were joined for the purposes of the written and oral parts of the procedure and the judgment.
35 As is apparent from the requests for a preliminary ruling, the questions asked by the referring court are based on the premiss that the broadcasts at issue in the main proceedings constitute an audiovisual media service covered by Directive 2010/13, with the result that the applicants in the main proceedings are ‘media service providers’ within the meaning of that directive.
36 In its written observations and at the hearing, Makeleio nevertheless claimed that it is not a ‘media service provider’ within the meaning of that directive and that the directive therefore does not apply to it.
37 In that regard, it must be borne in mind that, under the division of jurisdiction between the European Union judicature and national courts, it is in principle for the national court to determine whether the factual conditions triggering the application of a European Union rule are fulfilled in the case pending before it, while the Court, when giving a preliminary ruling, may, where appropriate, provide clarification to guide the national court in its interpretation (judgment of 15 March 2012, SCF, C‑135/10, EU:C:2012:140, paragraph 67 and the case-law cited).
38 Therefore, it is for the Court of Justice to provide the referring court with the necessary interpretative guidance concerning the concept of ‘audiovisual media service’ within the meaning of that directive, in order for the referring court to ascertain whether the broadcasts at issue in the main proceedings are in fact covered by that concept and whether Makeleio and Zougla must therefore be regarded, in respect of those broadcasts, as ‘media service providers’ within the meaning of that directive.
39 In that context, it must be recalled that, according to the definition set out in Article 1(1)(a)(i) of Directive 2010/13, the concept of ‘audiovisual media service’ refers to a service as defined in Articles 56 and 57 TFEU, where the principal purpose of the service or a dissociable section thereof is devoted to providing programmes, under the editorial responsibility of a media service provider, to the general public, in order to inform, entertain or educate, by means of electronic communications networks within the meaning of point (a) of Article 2 of Directive 2002/21.
40 Furthermore, in accordance with Article 1(1)(d) of Directive 2010/13, for the purposes of that directive, ‘media service provider’ is the natural or legal person who has editorial responsibility for the choice of the audiovisual content of the audiovisual media service and determines the manner in which it is organised.
41 In the first place, it must be noted that, as is apparent from the very wording of Article 1(1)(a)(i) of Directive 2010/13, read in the light of Article 2(1) of Directive 2018/1972, which replaced Article 2(a) of Directive 2002/21, that both the broadcasting of programmes via broadcasting signals, whether analogue or digitally, and the broadcasting of programmes via the internet are liable to be covered by the concept of ‘audiovisual media services’ within the meaning of Directive 2010/13.
42 It follows that the concept of ‘media service providers’, within the meaning of that directive, covers both providers of traditional television services as referred to in paragraph 29 above and providers of online television services.
43 In the second place, it is not disputed that the broadcasts at issue in the main proceedings were broadcast for information or entertainment purposes and, furthermore, that they were broadcast on websites and, therefore, via electronic communications networks within the meaning of Article 2(1) of Directive 2018/1972.
44 In the third place, as is apparent from Article 1(1)(b) of Directive 2010/13, the concept of ‘programme’, within the meaning of that directive, refers to ‘a set of moving images … constituting an individual item, irrespective of its length, within a schedule or a catalogue established by a media service provider, including feature-length films, video clips, sports events, situation comedies, documentaries, children’s programmes and original drama’.
45 In that regard, it should be noted that, as regards the provision on a newspaper’s website of videos of short duration consisting of local news bulletins, sports and entertainment clips, the Court held that such videos are covered by the concept of ‘programme’ within the meaning of Article 1(1)(b) of Directive 2010/13 (judgment of 21 October 2015, New Media Online, C‑347/14, EU:C:2015:709, paragraph 24).
46 In order to reach that assessment, the Court relied in particular on the fact that, like a television broadcast programme, those videos are aimed at a mass audience and could have a clear impact on that audience, within the meaning of recital 21 of that directive. Furthermore, the manner in which those videos can be selected, inasmuch as it entails the possibility, for the internet user, of having access to the video which interests him or her upon individual request when he or she wants on the basis of a catalogue or list established by the operator of the online newspaper, is no different from that proposed in the context of on-demand audiovisual media services, which fall within the scope of that directive. Lastly, videos relating to news compete with the news services offered by television broadcasters, whereas videos relating to cultural or sporting events or recreational reports are in competition with music stations, sports stations and entertainment programmes (see, to that effect, judgment of 21 October 2015, New Media Online, C‑347/14, EU:C:2015:709, paragraphs 21 and 23).
47 In the present case, at the hearing, the ESR stated that the broadcast at issue in the main proceedings concerning Makeleio was a broadcast transmitted daily on Makeleio’s website, in audiovisual form, that that broadcast lasted several hours, that it had its own name and that it was presented by the same journalist, that it was broadcast displaying Makeleio’s logo, that Makeleio provided information to the public on its website regarding its daily broadcasting and the time thereof, that the broadcast was initially transmitted in a linear manner and was subsequently uploaded online so that interested persons could access it on demand, and that that website featured a list making it possible to search for previous broadcasts. The ESR also stated that those same features applied as regards the broadcast at issue in the main proceedings concerning Zougla.
48 Therefore, subject to verification by the referring court, it should be stated that the broadcasts at issue in the main proceedings, as videos within the schedule or catalogue of audiovisual content offered in the electronic version of a newspaper, constitute ‘programmes’ within the meaning of Article 1(1)(b) of Directive 2010/13.
49 In the fourth place, as regards the criteria which the referring court must take into consideration for the purpose of assessing the ‘principal purpose’, within the meaning of Article 1(1)(a)(i) of Directive 2010/13, of a service making videos available that is offered in the electronic version of a newspaper, the Court has held that such an assessment must focus on whether that service as such has content and form that are independent of those of the journalistic activity of the operator of the website at issue, and is not merely an indissociable complement to that activity, in particular as a result of the links between the audiovisual offer and the offer in text form (judgment of 21 October 2015, New Media Online, C‑347/14, EU:C:2015:709, paragraph 37).
50 It will thus be for the referring court to assess whether the broadcasts at issue in the main proceedings have content and form that are independent of those of the written press articles of the publisher of the online newspaper. If that is the case, those broadcasts will come within the scope of Directive 2010/13. If, by contrast, those programmes appear merely to be an indissociable complement to that publisher’s journalistic activity, in particular because of their links with the offer in text form, they will not come within the scope of that directive.
51 In that regard, it is apparent from the case-law of the Court that the fact that the videos offered on a newspaper’s website can be accessed and watched regardless of whether the articles of the electronic version of that newspaper are consulted tends to show that the service making videos available offered on such a website could be regarded as having form and content which are independent of those of the journalistic activity of the operator of that website and, therefore, as constituting a distinct service from the other services offered by that operator (judgment of 21 October 2015, New Media Online, C‑347/14, EU:C:2015:709, paragraph 36).
52 In the fifth place, under Article 1(1)(c) of Directive 2010/13, for the purposes of that directive, the concept of ‘editorial responsibility’ means the exercise of effective control both over the selection of the programmes and over their organisation either in a chronological schedule, in the case of television broadcasts, or in a catalogue, in the case of on-demand audiovisual media services.
53 As regards a service making videos available that is offered on a newspaper’s website, it must be stated that such control may relate, inter alia, to the uploading and removal of videos, the date and time of the broadcasting of videos on that website, the period of time during which those videos will be accessible to internet users, the structure of that website, the way in which the videos are displayed and can be selected, the video search system and the updating of the content of that website.
54 Even though it will be for the referring court to assess whether the editorial responsibility, within the meaning of Article 1(1)(c) of Directive 2010/13, as regards the broadcasts at issue in the main proceedings, lies with Makeleio and with Zougla, respectively, the factors referred to in paragraph 47 above tend to indicate that that is the case. The facts, confirmed by Makeleio at the hearing, that, first, the presenter of the broadcast at issue in the main proceedings concerning that party was a journalist employed by that entity for the purpose of broadcasting live and presenting that broadcast on a daily basis and, second, Makeleio had decided to transmit the broadcast at issue in the main proceedings concerning it confirm that Makeleio assumed editorial responsibility for it.
55 In the light of the considerations set out in paragraphs 37 to 54 above, and subject to the verifications which it will be for the referring court to carry out, the questions referred should therefore be answered on the basis of the premiss that (i) Makeleio and Zougla are ‘media service providers’ within the meaning of Directive 2010/13 and, in particular, providers of online television services, and (ii) the broadcasts at issue in the main proceedings constitute an ‘audiovisual media service’ within the meaning of that directive.
56 In its written observations, the European Commission expresses doubts as regards the interpretation of the national legislation at issue in the main proceedings, as adopted by the referring court, according to which the national provisions laying down an obligation, on pain of a penalty, to respect the value of human dignity and a prohibition, equally on pain of a penalty, on the broadcasting of content of poor quality do not apply to providers of online television services.
57 In that regard, it should be recalled that, as is clear from settled case-law, as far as the interpretation of provisions of national law is concerned, the Court is in principle required to rely on the description given in the order for reference. The Court does not have jurisdiction to interpret the internal law of a Member State (judgment of 5 December 2023, Deutsche Wohnen, C‑807/21, EU:C:2023:950, paragraph 36 and the case-law cited).
58 Consequently, it is on the basis of the premiss that the national legislation at issue in the main proceedings does not apply to providers of online television services that the questions referred must be answered.
59 As a preliminary point, it is apparent from the orders for reference that the referring court is uncertain, having regard to the national legislation at issue in the main proceedings, whether, first, the obligation to respect the value of human dignity, and second, the prohibition on the broadcasting of content of poor quality come within the scope of Directive 2010/13.
60 As is apparent from its title and recital 11 thereof, Directive 2010/13 is intended to coordinate certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services with a view to the completion of a true internal market for those services. To that end, that directive lays down a basic tier of coordinated rules applicable to all audiovisual media services, some of which, as is apparent from recital 18 of that directive and recital 7 of Directive 2018/1972, concern the content of those services.
61 That said, as the Advocate General observed, in essence, in point 72 of her Opinion, beyond the minimum requirements laid down by Directive 2010/13, that directive does not interfere with the content of audiovisual media services. The absence of such interference reflects, moreover, the intention of the EU legislature to give the providers of those services genuine power over such content, as stated in recital 38 thereof.
62 Accordingly, Directive 2010/13 does not contain any provision relating to the quality, as such, of the content of programmes coming within its scope; nor does it lay down any ground prohibiting the content broadcast from being of bad or poor quality.
63 Consequently, the prohibition on the broadcasting of content of poor quality does not come within the scope of Directive 2010/13 since such a prohibition goes beyond the minimum requirements imposed by that directive.
64 That said, in the present case, as is apparent from the information set out in the requests for a preliminary ruling, and as the ESR, moreover, confirmed at the hearing before the Court, the content of the broadcasts at issue in the main proceedings was classified as being ‘of poor quality’ and was thus considered to be covered by the prohibition on the broadcasting of content of poor quality laid down by the national legislation at issue in the main proceedings, on the sole ground that such content was regarded as undermining human dignity.
65 Therefore, having regard to the disputes in the main proceedings, it must be stated that, by its first questions, the referring court asks, in essence, whether Directive 2010/13 must be interpreted as meaning that national legislation which, on pain of a penalty, requires all media service providers, with the exception of those broadcasting their content via the internet, to respect the value of human dignity and to refrain from broadcasting content undermining that value comes within the scope of that directive.
66 In that regard, in the first place, it must be noted that Article 6(1) of Directive 2010/13, which is one of the provisions applicable to audiovisual media services set out in Chapter III of that directive, requires Member States to ensure by appropriate means that audiovisual media services provided by media service providers under their jurisdiction do not contain any incitement to violence or hatred directed against a group of persons or a member of a group based on any of the grounds referred to in Article 21 of the Charter, or any public provocation to commit a terrorist offence, ‘without prejudice to the obligation of the Member States to respect and protect their human dignity’.
67 By that latter phrase, the EU legislature thus laid down an obligation on the Member States not only to respect but also to protect human dignity when implementing Article 6(1) of Directive 2010/13. That obligation means, in particular, as is clear from a reading of that provision as a whole, that it is for those States to adopt the measures necessary to ensure that the content of audiovisual media services provided by providers under their jurisdiction does not undermine the value of human dignity.
68 Therefore, it is clear from the wording of Article 6(1) of Directive 2010/13 that the obligation to respect the value of human dignity and the prohibition on the broadcasting of content undermining that value come within the scope of that provision.
69 In the second place, such an interpretation is borne out by the context of which Article 6(1) forms part.
70 In accordance with Article 1(1)(a)(ii) of Directive 2010/13, audiovisual commercial communications are covered by the concept of ‘audiovisual media service’ within the meaning of that directive. The fact that Article 9 of that directive, which is also part of the provisions in Chapter III thereof, requires Member States to ensure that those communications comply with certain requirements, including, under Article 9(1)(c)(i) thereof, the requirement not to prejudice respect for human dignity, confirms that, in the fields which that directive coordinates, the EU legislature sought to provide for a ground specifically prohibiting the value of human dignity from being undermined, a ground which is a corollary of the obligation to respect that value.
71 In the third place, it must be noted that, as is clear from recital 104 of Directive 2010/13, that directive is intended to create an area without internal frontiers for audiovisual media services whilst ensuring at the same time a high level of protection of objectives of general interest and, in particular, the protection of human dignity. Furthermore, it follows from recital 59 of that directive that the enactment of rules such as those laid down in Article 6 of that directive serves reasons relating in particular to the protection of human dignity in all audiovisual media services.
72 Thus, an interpretation of Article 6(1) of Directive 2010/13 to the effect that that provision encompasses the obligation to respect the value of human dignity as well as the prohibition on the broadcasting of content undermining that value is consistent both with the objectives pursued by that directive and with those pursued by that provision itself.
73 Consequently, it is clear from the literal, contextual and teleological interpretation of Article 6(1) of Directive 2010/13 that the obligation to respect the value of human dignity and the prohibition on the broadcasting of content undermining that value are covered by that provision and, therefore, come within the scope of that directive.
74 In the light of all of the foregoing considerations, the answer to the first questions is that Directive 2010/13 must be interpreted as meaning that national legislation which, on pain of a penalty, requires all media service providers, with the exception of those broadcasting their content via the internet, to respect the value of human dignity and to refrain from broadcasting content undermining that value comes within the scope of that directive, and, in particular, of Article 6(1) thereof.
75 Having regard to the answer given to the first questions and in the light of the considerations set out in paragraph 64 above, the view must be taken that, by its second questions, the referring court asks, in essence, whether Article 4(1) of Directive 2010/13, read in the light of the principle of equal treatment, must be interpreted as precluding national legislation which, on pain of a penalty, requires all media service providers, with the exception of those broadcasting their content via the internet, to respect the value of human dignity and to refrain from broadcasting content undermining that value.
76 It must be borne in mind that, on the basis of Council Directive 89/552/EEC of 3 October 1989 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities (OJ 1989 L 298, p. 23), the amended version of which was consolidated by Directive 2010/13, the Court held that such a directive does not completely harmonise the rules relating to the areas to which it applies, but that it lays down minimum rules for broadcasts which emanate from the European Union and which are intended to be received within it (judgment of 18 July 2013, Sky Italia, C‑234/12, EU:C:2013:496, paragraph 12 and the case-law cited).
77 In that context, as is apparent from Article 4(1) of Directive 2010/13 and from recitals 41 and 83 thereof, in order to ensure that the interests of consumers as television viewers are fully and properly protected, Member States have the option, with regard to media service providers under their jurisdiction, of laying down more detailed or stricter rules and, in certain cases, different conditions, in the fields covered by that directive, provided that such rules are in compliance with European Union law and, in particular, with its general principles (judgment of 3 February 2021, Fussl Modestraße Mayr, C‑555/19, EU:C:2021:89, paragraph 40 and the case-law cited).
78 National legislation requiring the value of human dignity to be respected and content undermining that value not to be broadcast merely provides for an obligation to respect human dignity as well as a ground prohibiting the value of human dignity from being undermined, as provided for in Article 6(1) of Directive 2010/13, with the result that such legislation does not contain ‘more detailed’ or ‘stricter’ rules, within the meaning of Article 4(1) of that directive, and, consequently, does not come within the scope of Article 4(1).
79 It is therefore in the light not of Article 4(1) of Directive 2010/13 but of Article 6(1) of that directive that the second questions must be answered.
80 In that regard, national legislation which merely articulates a requirement deriving from the minimum requirements laid down by that directive, such as the obligation to respect the value of human dignity and to refrain from broadcasting content undermining that value arising from Article 6(1) of that directive, must necessarily be applicable to all media service providers under the jurisdiction of the Member State concerned.
81 If that were not the case, such national legislation would not only disregard the scope ratione personae of Directive 2010/13 and, in particular, of Article 6(1) thereof, but would also compromise the achievement of the objective of creating an internal market for audiovisual media services pursued by that directive and the objective of protecting human dignity in all audiovisual media services, referred to in Article 6(1).
82 It follows that national legislation that requires only certain media service providers to respect the value of human dignity and to refrain from broadcasting content undermining that value is contrary to Article 6(1) of Directive 2010/13.
83 In the light of all of the foregoing considerations, the answer to the second questions is that Article 6(1) of Directive 2010/13 must be interpreted as precluding national legislation which, on pain of a penalty, requires all media service providers, with the exception of those broadcasting their content via the internet, to respect the value of human dignity and to refrain from broadcasting content undermining that value.
84 Having regard to the answers given to the first and second questions, and in the light of the considerations set out in paragraph 64 above, the view must be taken that, by its third questions, the referring court asks, in essence, whether the principle that offences and penalties must be defined by law, enshrined in the first sentence of Article 49(1) of the Charter, must be interpreted as precluding national legislation that, on pain of a penalty, requires all media service providers, with the exception of those broadcasting their content via the internet, to respect the value of human dignity and to refrain from broadcasting content undermining that value from being given, pursuant to the principle that national law must be interpreted in conformity with EU law, a broad interpretation so as to include within its scope that latter category of media service providers.
85 The Court has consistently held that when national courts apply their domestic law they are bound to interpret it, so far as possible, in the light of the wording and the purpose of the directive concerned in order to achieve the result sought by the directive and consequently comply with the third paragraph of Article 288 TFEU. This obligation to interpret national law in conformity with European Union law is inherent in the system of the Treaty on the Functioning of the European Union, since it permits national courts, for the matters within their jurisdiction, to ensure the full effectiveness of European Union law when they determine the disputes before them (judgment of 24 January 2012, Dominguez, C‑282/10, EU:C:2012:33, paragraph 24 and the case-law cited).
86 The principle that national law must be interpreted in conformity with European Union law requires national courts to do whatever lies within their jurisdiction, taking the whole body of domestic law into consideration and applying the interpretative methods recognised by domestic law, with a view to ensuring that the directive in question is fully effective and achieving an outcome consistent with the objective pursued by it (judgment of 24 January 2012, Dominguez, C‑282/10, EU:C:2012:33, paragraph 27 and the case-law cited).
87 However, as the Court has held, the principle of interpreting national law in conformity with European Union law is limited by general principles of law which form part of the European Union legal system, in particular, the principle that offences and penalties must be defined by law, enshrined in the first sentence of Article 49(1) of the Charter (see, to that effect, judgments of 28 June 2012, Caronna, C‑7/11, EU:C:2012:396, paragraph 52 and the case-law cited; of 24 March 2021, Prefettura Ufficio territoriale del governo di Firenze, C‑870/19 and C‑871/19, EU:C:2021:233, paragraph 49 and the case-law cited; and of 14 October 2021, Ministerul Lucrărilor Publice, Dezvoltării şi Administraţiei, C‑360/20, EU:C:2021:856, paragraph 40 and the case-law cited).
88 That principle, which constitutes specific expression of the general principle of legal certainty, means, inter alia, that legislation must clearly define offences and the penalties which they attract in order to ensure foreseeability as regards both the definition of the offence and the determination of the penalty (judgment of 10 September 2024, Neves 77 Solutions, C‑351/22, EU:C:2024:723, paragraph 103 and the case-law cited). That requirement is satisfied where the individual concerned is in a position to ascertain from the wording of the relevant provision and, if need be, with the assistance of the interpretation of it by the national courts concerned, what acts and omissions will make him or her criminally liable (judgment of 14 September 2023, Commission and IGG v Dansk Erhverv, C‑508/21 P and C‑509/21 P, EU:C:2023:669, paragraph 86 and the case-law cited).
89 In that respect, as regards, in particular, a situation relating to the extent of liability in criminal law arising under legislation adopted for the purpose of implementing a directive, the Court has stated that the principle that a provision of the criminal law may not be applied extensively to the detriment of the defendant, which is the corollary of the principle of legality in relation to crime and punishment and more generally of the principle of legal certainty, precludes bringing criminal proceedings in respect of conduct not clearly defined as culpable by law (judgment of 12 December 1996, X, C‑74/95 and C‑129/95, EU:C:1996:491, paragraph 25 and the case-law cited).
90 Ultimately, the obligation on the national court to interpret national law in conformity with EU law is limited by the principle that offences and penalties must be defined by law since, as the Court has held on several occasions, a directive cannot, of itself and independently of a law of a Member State adopted for its implementation, have the effect of determining or aggravating the liability in criminal law of persons who act in contravention of the provisions of that directive (see judgment of 28 June 2012, Caronna, C‑7/11, EU:C:2012:396, paragraph 52 and the case-law cited).
91 Lastly, it must be pointed out that the principle that offences and penalties must be defined by law is also applicable to offences and penalties of a non-criminal nature (see, to that effect, judgment of 28 October 2010, SGS Belgium and Others, C‑367/09, EU:C:2010:648, paragraph 61 and the case-law cited).
92 As is apparent from paragraph 82 above, national legislation requiring, on pain of a penalty, all media service providers, with the exception of those broadcasting their content via the internet, to respect the value of human dignity and to refrain from broadcasting content undermining that value is contrary to Article 6(1) of Directive 2010/13.
93 Such national legislation therefore calls for an interpretation that is consistent with Article 6(1) of Directive 2010/13, to the effect that providers broadcasting their content via the internet are also subject to the obligation laid down by that legislation and may therefore be penalised where they fail to comply with that obligation.
94 Where national legislation does not provide for an obligation for media service providers broadcasting their content via the internet to respect the value of human dignity and to refrain from broadcasting content undermining that value, or, with respect to those providers, for a penalty to be imposed in the event of a failure to comply with that obligation, the principle that offences and penalties must be defined by law prohibits the imposition of penalties on those providers for such conduct, even though that national legislation is contrary to Article 6(1) of Directive 2010/13 (see, by analogy, judgment of 28 June 2012, Caronna, C‑7/11, EU:C:2012:396, paragraph 55 and the case-law cited).
95 Consequently, an interpretation such as that envisaged in paragraph 93 above would amount to disregarding the principle that penalties and offences must be defined by law and would thus be contrary to the limits which flow from the essential nature of any directive, which, as follows from the case-law cited in paragraph 90 above, preclude a directive from having the effect, of itself and independently of a law of a Member State adopted for its implementation, of determining or aggravating the liability in criminal law of persons who act in contravention of the provisions of that directive.
96 In the light of all of the foregoing considerations, the answer to the third questions is that the principle that offences and penalties must be defined by law, enshrined in the first sentence of Article 49(1) of the Charter, must be interpreted as precluding national legislation that, on pain of a penalty, requires all media service providers, with the exception of those broadcasting their content via the internet, to respect the value of human dignity and to refrain from broadcasting content undermining that value from being given, pursuant to the principle that national law must be interpreted in conformity with EU law, a broad interpretation so as to include within its scope that latter category of media service providers.
97 Having regard to the answers given to the first questions and in the light of the considerations set out in paragraph 64 above, there is no need to answer the fourth and fifth questions.
98 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable. 1. Directive 2010/13/EU of the European Parliament and of the Council of 10 March 2010 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services (Audiovisual Media Services Directive), as amended by Directive (EU) 2018/1808 of the European Parliament and of the Council of 14 November 2018, 2. Article 6(1) of Directive 2010/13, as amended by Directive 2018/1808, 3. The principle that offences and penalties must be defined by law, enshrined in the first sentence of Article 49(1) of the Charter of Fundamental Rights of the European Union,