C-52/79

JUDGMENT OF 18. 3. 1980 — CASE 52/79

which are for the national court to 4. National rules prohibiting the establish. transmission by cable television of advertisements cannot be regarded as 3. Articles 59 and 60 of the EEC Treaty constituting either a disproportionate do not preclude national rules measure in relation to the objective to prohibiting the transmission of be achieved, in that the prohibition in advertisements by cable television — question is relatively ineffective in as they prohibit the broadcasting of view of the existence of natural advertisements by television — if reception zones, or discrimination those rules are applied without which is prohibited by the Treaty in distinction as regards the origin, regard to foreign broadcasters, in that whether national or foreign, of those their geographical location allows advertisements, the nationality of the them to broadcast their signals only in person providing the service, or the the natural reception zone. place where he is established. 5. Differences in situation, which are Indeed, in the absence of any har- due to natural phenomena, cannot be monization of the relevant national described as "discrimination" within laws, a prohibition of this type falls the meaning of the EEC Treaty; the within the residual power of each latter regards only differences in Member State to regulate, restrict or treatment arising from human activity, even totally prohibit television and especially from measures taken by advertising in its territory on grounds public authorities, as discrimination. of general interest, even if that The Community has no duty to take prohibition extends to such steps to eradicate differences which advertising originating in another are the consequence of natural Member State. inequalities.

PROCUREUR DU ROI v DEBAUVE

H E N R I J. P h . M . L O H E S T , Liège,

S.A. CODITEL, Liège,

ASSOCIATION LIÉGEOISE D'ÉLECTRICITÉ (A.L.É.), Liège,

Appellant civil parties :

FÉDÉRATION NATIONALE D U M O U V E M E N T C O O P É R A T I F F É M I N I N , a non-profit m a k i n g c o n s u m e r association, Brussels,

c o m p o s e d of: H . Kutscher, President, A. O'Keeffe a n d A . Touffait (Presidents of C h a m b e r s ) , J. M e i t ē n s d e W i l m a r s , P . P e s c a t o r e , L o r d M a c k e n z i e Stuart, G. Bosco, T . K o o p m a n s a n d O . D u e , J u d g e s ,

A d v o c a t e G e n e r a l : J.-P. W a r n e r Registrar: A. V a n H o u t t e

gives t h e following

JUDGMENT OF 18. 3. 1980 — CASE 52/79

JUDGMENT

Facts and Issues

The Law of 18 May 1960, an organic The civil parties and the Procureur law governing those corporations, du Roi appealed to the Tribunal prohibits them from making broad- Correctionnel, Liège. casts in the nature of commercial By a judgment of 23 February 1979 that advertisements. court stayed the proceedings and referred the following questions to the Cable diffusion of television is regulated Court of Justice for a preliminary ruling: by the Law of 26 January 1960 on licence fees for radio and television " 1 . Having regard to the judgment of receivers (Moniteur Belge of 6 February the Court of Justice of 30 April 1974 1960) as amended by the Law of 7 in Case 155/73, Sacchi, must Article August 1961 (Moniteur Belge of 6 59 of the Treaty of Rome be September 1961). Article 21 of the Royal interpreted as prohibiting all national Decree of 24 December 1966 on rules which prohibit the transmission networks diffusing broadcasts to the of advertisements by cable television homes of third parties (Moniteur Belge distribution companies even though of 24 January 1967), adopted in it is still possible and lawful to implementation of that law, provides : receive such advertisements naturally within the receiving zones of foreign "Subject to the conditions laid down in broadcasting stations, having regard international conventions, a distributor in particular to the fact that: may transmit broadcasts by any other television broadcasting station auth- (a) such rules would introduce orized by the country in which it is discrimination based on the established; however, the transmission of geographical locality of the

foreign broadcasting station bution of television broadcasts from a which would be able to transmit common aerial escaped the rules; a advertisements only within its distribution network for television natural receiving zone, as these broadcasts was established under this zones may, because of the system at Namur, Liège and Verviers. differences in density of popu- lation, be of very different interest from the advertising In practice, distributors have disregarded point of view, this prohibition and have retransmitted foreign programmes without cutting the advertising sequences; this practice is (b) such rules would introduce a moreover permitted by the Government restriction disproportionate to which has not imposed any penalties and the objective in view because has not withdrawn any authorization; that objective — in other words, the technical, psychological and legal a prohibition on television reasons for that concession have been advertising — could never be stated publicly by the Minister for wholly achieved because of the Communications. existence of the natural receiving zones; Moreover, a large proportion of viewers continue to receive foreign programmes 2. Having regard to the judgment of without the help of the relay/broadcasts the Court of Justice of 3 December established by the distribution- companies 1974 in Case 33/74, Van Binsbergen, and it is clear that the Belgian: rules do must Articles 59 and 60 of the not prohibit this; this is one of the Treaty of Rome be interpreted as reasons why the competent authority has having direct effect against all not challenged the distributors. national rules in so far as such rules do not create any formal discrimi- nation against the person providing In addition, the application of the services | on the ground of his prohibition might have repercussions on nationality or of his place of the provision of services at the residence (in the present instance, Community level; the foreign broad- the prohibition on retransmitting casting institutions subsist wholly or in advertisements) ?" part on the income obtained by advertisers and the cutting of the advertisements in Belgium might prompt In the grounds for its judgment making these advertisers to restrict or the reference, the Tribunal Correctionnel discontinue their commercial advertising; said in particular: moreover, the success of advertisers, traders or manufacturers situated in neighbouring countries in reaching the "In order to conform to the system to Belgian market at which they had been which the national institutions are aiming their advertisements and to which subject, Article 21 of that royal decree they had been offering their services prohibits the retransmission of ad- hitherto would be limited." vertising sequences.

In accordance with Article 20 of the situation with regard to cable diffusion Protocol on the Statue of the Court of of television in Belgium. Their statement Justice of the European Economic is essentially as follows. Community written observations were lodged by Mr Debauve, Mr Denuit, Mr Lohest, Coditei and the Association From 1961 more and more extensive Liégeoise d'Électricité, all represented by networks started to spread in Belgium, J. M. Defourny and E. Rigaux, of the mainly in order to make available Liège Bar, and by A. Braun and G. programmes from foreign stations and Kirschen, of the Brussels Bar; by Radio with the secondary aim of improving the Télévision Belge de la Communauté quality of reception of Belgian Française, represented by H. Mackelbert programmes in view of the fact that and P. Foriers, of the Brussels Bar; by certain regions experienced greater the Federation Nationale du Mouvement reception difficulties due to obstacles and Coopératif Féminin, a consumer geographical location (in valleys, for association, the Fédération Belge des example). Coopératives (Febecoop), Vie Féminine/ and Françoise Vander Bernden and Others, represented by R. Graetz and P. Starting in 1968 a public company, the Martens, of the Liège Bar; by the inter-communal Association Liégeoise Government of the French Republic, d'Électricité, took the initiative in represented by M. Dandelot, acting as extending the benefits of cable television Agent; by the Luxembourg Government not just to urban districts or towns but represented by J. Hosten, acting as practically to an entire province. Agent; by the Government of the Federal Republic of Germany, represented by M. Seidel, acting as Agent; and by At the outset some cable television distri- the Commission of the European butors cut out the advertisements. But Communities, represented by P. Leleux, because the number of foreign channels acting as Agent. had increased and various channels had begun one after the other to broadcast advertisements it subsequently became impossible to cut out advertising ma- Upon the hearing the report of the terial. Judge-Rapporteur and the views of the Advocate General, the Court decided to open the oral procedure without any preparatory inquiry. They in fact viewed their task as one of making available to the population as wide a choice of programmes as possible. They consider that there has never been any question of their interfering, directly II — S u m m a r y of t h e w r i t t e n or indirectly, in the content of observations submitted to programmes which they distribute. Cable the C o u r t television distributors are legally obliged not to interfere with programmes transmitted. They must only act as intermediaries in the technical link Mr Debauve, Mr Denuit and Mr Lohest, between the producers and the users. Coditei and the Association Liégeoise d'Électricité (A.L.É.) (hereinafter re- ferred to as "the respondents in the main In spite of themselves the cable television procceedings") first of all explain the distributors find themselves implicated by

Clearly, foreign broadcasting cor- porations are the owners of their programmes. It is no secret that the neighbouring countries (the Federal The first question Republic of Germany, France and the Netherlands for example) have installed transmitters near the Belgian frontier: Metz, Lille, Hirson, Mézières, Longwy, The respondents in the main proceedings Aix-la-Chapelle, Montjoie, Schnee- point out that the three economic Eiffel, Maestricht, Hulsberg, and so on, activities referred to by the court making thereby demonstrating their clear the reference, namely, the activities of intention to transmit beyond their own broadcasting corporations, advertisers frontiers far into Belgium. With a small and cable television distributors, must be aerial on his roof any Belgian television examined to see whether they are viewer can receive advertisements covered by provisions of the Treaty broadcast from at least one foreign relating to the freedom to provide station. And so, even without cable services. television, the Royal Decree of 1966 has already failed in its object.

Community frontiers. There can be no 2. Broadcasting organizations would doubt that the transmission by a Belgian suffer a reduction in the quality of their cable television distributor to viewers services since they would have to tolerate living in Belgium of programmes the interruption of their programmes broadcast from other Member States is when they were jammed; this would in the nature of the free movement of have a disastrous psychological effect. services. Any restrictions upon those transmission activities constitutes on any view a restriction upon the freedom of foreign broadcasting organizations and In these two respects national broad- advertisers to provide services. casting organizations would without doubt have an advantage over foreign broadcasting organizations. The general reduction in the quality of broadcasts The respondents in the main proceedings due to the interruptions would pass on then consider the infringement of the the discrimination in favour of the prohibition on discrimination and of the Belgian organizations to the market for principle of proportionality. non-commercial programmes, in other words, in relation to the competitive position of broadcasting organizations when purchasing broadcasting or An examination to establish whether transmitting rights for programmes. the national measures conform to Community law must cover not only the Royal Decree of 24 December 1966 prohibiting the retransmission of broadcasts in the nature of commercial 3. Commercial broadcasts would have advertising but also the individual steps their "effective range" curtailed to their taken to apply it ', particularly in view of natural diffusion areas, with the result the fact that for eleven years the Belgian that advertisers would either have to authorities expressly indicated that approach several broadcasting organ- infringements of the national rules would izations instead of encouraging compe- be tolerated. tition between them, or have to settle for coverage of only part of the territory.

The respondents in the main proceedings It is accepted that restrictions may be reply to the question whether national imposed, especially those which may measures may be justified on the ground originate in the application of national of public policy (Articles 56 and 66 of rules justified by the general interest the Treaty) by referring to the judgment which are binding upon any person in Case 33/77, Bouchereau ([1977] ERC established in the State in which the 1999 at p. 2015, paragraph (3) of the service is provided (judgment in Case operative part), in which the Court ruled 33/74, Van Binsbergen, [1974] ERC that: "In so far as it may justify certain 1299, paragraph 12). However, such rules must still be applied in accordance restrictions on the free movement of with the principle of proportionality: a persons subject to Community law, measure must be "objectively justified" recourse by a national authority to the by the need to achieve the desired result concept of public policy presupposes, in (Joined Cases 110 and 111/78, Van any event, the existence, in addition to WesemaeL [1979] ECR 35, para- the perturbation to the social order graph 29). which any infringement of the law involves, of a genuine and sufficiently serious threat affecting one of the In the opinion of the respondents in the fundamental interests of society." main proceedings, compliance with that principle implies that Those conditions are not fulfilled in this a) restrictions are required in order to case. achieve the objective of general interest;

In conclusion, the respondents in the b) such restrictions are confined to main proceedings propose that the Court measures having the least should answer the first question as constraining effect upon the freedom follows : to provide services;

Radio- Television Belge de la Communauté Secondly, it aims at television viewers Française (hereinafter referred to as who are not within the natural zone of "RTBF"), an appellant civil party, first the broadcasting stations's transmitter examines the service provided by a and who cannot receive broadcasts direct broadcasting organization. from the broadcasting station. In this case, since the service provided by The service of broadcasting a television the broadcasting station is naturally advertisement is provided when it is put exhausted, there can be no question of out on the air. The service of broad- the free movement of the service casting is completed once the ad- provided by the broadcasting station. In vertisement has been transmitted; it is this case therefore a new service is exhausted in the natural reception zone provided. The provision of that service is of the transmitter. specific and identifiable, particularly because it involves remuneration paid by the television viewer to the cable The person who commissions the television distributor. advertisement, in this case the advertiser, cannot ask the broadcasting station to do anything more than reach the people in Consequently, it is not possible to link the natural reception zone of its the broadcast to cable television distri- transmissions. bution without distorting the problem; the real problem is solely to ascertain whether national rules on cable television In this respect, each provider of services distribution are such as to prevent is bounded by its own limitations freedom of movement in relation to depending on either the rules to which the provision of another service, that television broadcasts are subject or the specifically provided by the cable technical means at its disposal. television distributor.

For reasons concerned mainly with public policy the Belgian legislature has for a long time been opposed to both the The comment in paragraph (b) of the broadcasting and the diffusion by cable first question is also irrelevant. First of television of advertisements. By so acting all there is an error of law in relating the it is defending a specific form of effectiveness of a rule of law to its communal life which represents one of lawfulness. There is also an error of fact. the fundamental interests of society As regards people who are in the natural (Case 33/77, Bouchereau, [1977] ECR reception zone of the foreign broad­ 1999). casting station, the aim of the rules is achieved in part if the cable television organization cannot receive and transmit advertising material by cable, since the television viewer must take the necessary It is the service, defined by the Royal steps himself. As regards those who are Decree of 24 December 1966, which the not in the natural reception zone, the cable television distributor may lawfully aim is completely achieved. provide. The service thereby defined is not impeded in any way. Nor does the applicable system of rules cause discrimi­ nation because it applies to cable In conclusion, RTBF proposes that the television distributors, irrespective of Court should reply to the first question their nationality, operating in Belgium. as follows:

ECR 409). RTBF and BRT do not have from the fact that it cannot be founded the right to broadcast advertisements and upon any discriminatory practice, the cannot therefore claim to have the refusal to apply Article 21 to the accused slightest monopoly in this field. The on the pretext that they are Royal Decree of 24 December 1966 was retransmitting foreign broadcasts has the intended to ensure compliance by cable immediate effect of. creating discrimi- television distributors with the rule to nation on the basis of nationality or which the broadcasting corporations are domicile, to the detriment of Belgian subject. persons providing the service contemplated. The judgment in Case 39/75, Coenen ([1975] ECR 1547), applies the principle of proportionality in Furthermore, the services performed by the matter of the provision of "services the Belgian broadcasting corporations and at the same time lays down the limits are not provided in return for remuner- of that principle. The effect of that ation and cannot therefore be regarded judgment is that if the Court considered as services within the meaning of Article that the broadcasting of television 60 of the Treaty. advertisements by a company established within the territory of a Member State and their retransmission by cable by another company, constituted under the In view of the Sacchi judgment and law of another Member State, is one considering the situation in Belgium, it is service, it should rule that that type of futile to claim that the national rules activity is akin to those upon which the against the transmission by cable Court placed restrictions in the Coenen television distribution companies of judgment. advertisements coming from broad- casting stations located outside national territory have a harmful effect upon the movement of goods when natural reception of those advertisements is still In the opinion of the Government of the possible in the respective reception zones French Republic the authority of Case of such broadcasting stations. 155/73, Sacchi, (cited above) should be adhered to in the present case.

However, even if the restriction upon the For its part the French Government sets free movement of services rested upon great store by the observance of such a provisions existing before the EEC principle at the national and European Treaty came into force, individuals could level, as being the only way to avoid, rely upon Article 59 of the Treaty before first, partial excisions involving an national courts. alteration to programmes hitherto freely broadcast or possibly leading to censorship itself, and, secondly, the risk of the practice already observed in other countries whereby unscrupulous dis- Basically, Articles 59 and 62 of the tributors retransmit only part of the Treaty contemplate only discrimination programmes and take advantage of their against foreigners. Since the prohibition television audience to replace the parts on advertising affects national and left out with advertisements or other foreign broadcasts alike, a literal in- parts of programmes of their own, and, terpretation rules out the application of thirdly, leaving to technicians the task of Articles 59 and 62 of the Treaty here. making cuts which would sometimes be very difficult to decide upon and distinguish in programmes as a whole whose value would thus be diminished for listeners or television viewers, thereby causing an indirect but definite discrimi- The Luxembourg Government wonders, nation which is censured by the Treaty. however, if it is not best to apply an interpretation more favourable to the integration of the Community by analogy with the case-law of the Court The Luxembourg Government observes as to the words "quantitative restrictions that because of the national rules in issue and measures having equivalent effect" broadcasting organizations in other contained in Article 30 of the Treaty. Member States are prevented from According to the case-law of the Court broadcasting their programmes by way all trading rules enacted by a Member of the cable television networks in State which are capable of hindering, Belgium to the extent to which those directly or indirectly, actually or programmes contain commercial potentially, intra-Community trade con- 'advertisements. stitute measures having an effect equivalent to quantitative restrictions. It is therefore irrelevant whether this is a Since the relevant Belgian provisions case of material discrimination, still less were introduced after the EEC Treaty of strict discrimination; all that matters is

If this argument by analogy is not accepted there are perhaps still, despite The Luxembourg Government dwells the apparently equal treatment of Belgian upon the problems caused by the inter- nationals and those of other Member ruption of broadcasts by cable television States, grounds for questioning whether distributors. there is not in reality a restriction upon the freedom to provide services, or discrimination. In conclusion, it proposes that the Court should answer the questions referred by the national court as follows: In this respect the Luxembourg Government refers to the judgment of the Court of 7 February 1979 (Case 136/78, Auer, [1979] ECR 437) which "Any rules of a Member State which, specifies that equal treatment with although strictly applying to national and nationals is not sufficient in itself to foreign organizations alike, directly or guarantee freedom of establishment if all indirectly prevent, or appreciably the other hindrances, apart from non- impede, the transmission of radio and possession of the nationality of the host television broadcasts coming from other country, are maintained. Member States, constitute discrimination under the first paragraph of Article 7 and a restriction upon the free movement of The cases in point here are those where services under Articles 59 and 62 of the the effects of the differing conditions EEC Treaty, unless those rules are required to be fulfilled prior to the absolutely necessary for the protection of exercise of an activity or the provision of essential public interests in the State a service in the various Member States concerned and those interests cannot be

protected by a measure which is less The television programmes in question restrictive upon the free movement of are in fact meant to be picked up within services." the national frontiers; in the Federal Republic of Germany, in particular, they are directed so as to cover the national The Government of the Federal Republic territory. of Germany believes that the answer to the first question should be in the negative. The Treaty does not prohibit Rules such as those in this case are to be Member States from resisting the broad- regarded as a limitation, upheld by casting within the territory coming under Community law, upon the freedom to their sovereignty of advertising material provide services.

commercial relationship exists between the person providing a service and the Next, national rules restricting the person receiving it, or at least, where provision of services are not acceptable there is unilateral provision of a service, in Community law if they are not based deliberate conduct on the part of the on any convincing ground or if the person providing the service. The fact burdens which they impose are out of that goods cross a frontier "fortu- proportion to the objective pursued. itously", whether owing to circum- Those conditions do not however obtain stances of force majeure or to any other in the case of restrictions imposed on cause, does not constitute "trade". The television advertising.

JUDGMENT OF 18. 3. 1980 — CASE 52/79

There is no need to examine whether a Can the fact that the disputed rules are service is provided between the foreign applicable "without distinction" justify broadcasting station and the Belgian their application to the provision of cable television distributors in the services of the type in question? Those absence of payment of remuneration by services are in fact entirely performed the latter to the former. It is in fact outside the territory where the rules sufficient to establish that in the case of a apply; they may even be said to be legal television broadcast in the nature of an relationships between parties none of

PROCUREUR DU ROI v DEBAUVE

JUDGMENT OF 18. 3. 1980 — CASE 52/79

Case 15/78, Koestler, ([1979] ECR 1971) prohibit natural inequalities but it does has not altered that principle. prohibit the deliberate treatment of some differently from others.

PROCUREUR DU ROI v DEBAUVE

contrary to Article 59 if they are not objectively justified. The Government of the Federal Republic of Germany is of the opinion that to the In the case of material discrimination extent to which the rules stated in Article resulting from national rules introduced 59 and 60 of the Treaty produce effects after the EEC Treaty came into force, going beyond the elimination of dis- the respondents in the main proceedings crimination, they cannot be said to have recall that Article 62 of the Treaty unlimited direct effect. prohibits Member States from intro- ducing new restrictions after the Treaty

interest." On the other hand, if the national rules cannot be replaced, the condition RTBFpoints out that the rules in dispute contained therein relating to the freedom do not cause any strict or material to provide services which requires that a discrimination between providers of provider of services which extend beyond services, the latter being actual or national boundaries be placed on an potential cable television distributors. equal footing from a material point of Moreover, the prohibition on the view can only be satisfied by the retransmission of advertisements is not a adoption, by the national legislature, of hindrance to the free movement of the supplementary rules to that effect.

JUDGMENT OF 18. 3. 1980 — CASE 52/79

PROCUREUR DU ROI v DEBAUVE

Decision

1 By a judgment of 23 February 1979, which was received at the Court on 3 April 1979, the Tribunal Correctionnel, Liège, referred two questions under Article 177 of the EEC Treaty for a preliminary ruling on the interpret- ation of Articles 59 and 60 of the Treaty with regard to certain problems concerning the transmission of commercial advertisements by cable television distributors.

2 Those questions have arisen out of criminal proceedings brought before the Tribunal de Police, Liège, against three persons for infringement of a prohibition on the transmission of television broadcasts in the nature of commercial advertising and implicating two Belgian companies, vicariously liable in civil law for the three accused, who are officers of those companies. Those proceedings were begun on the particular initiative of three associations representing consumers or cultural interests and by a certain number of natural persons who intervened as civil parties before the Tribunal de Police. When that court acquitted the accused and the companies liable in civil law, the three associations and certain other civil parties as well as the Ministère Public appealed to the Tribunal Correctionnel.

3 It is apparent from the file that the two companies in question provide, with the authority of the Belgian administration, a cable television diffusion service covering part of Belgium. Television sets belonging to subscribers to the service are linked by cable to a central aerial having special technical features which enable Belgian broadcasts to be picked up as well as certain foreign broadcasts which the subscribers cannot always receive with a private aerial, and which furthermore improve the quality of the pictures and sound received by the subscribers.

7 The questions asked by the Tribunal Correctionnel are worded as follows :

" 1 . Having regard to the judgment of the Court of Justice of 30 April 1974 in Case 155/73, Sacchi, must Article 59 of the Treaty of Rome be interpreted as prohibiting all national rules which prohibit the transmission of advertisements by cable television distribution companies even though it is still possible and lawful to receive such advertisements naturally within the receiving zones of foreign broadcasting stations, having regard in particular to the fact that:

(a) such rules would introduce discrimination based on the geographical locality of the foreign broadcasting station which would be able to

PROCUREUR DU ROI v DEBAUVE

transmit advertisements only within its natural receiving zone, as those zones may, because of the differences in density of population, be of very different interest from an advertising point of view,

(b) such rules would introduce a restriction disproportionate to the objective in view because that objective — in other words, a prohibition on television advertising — could never be wholly achieved because of the existence of the natural receiving zones;

JUDGMENT OF 18. 3. 1980 — CASE 52/79

the transmission of advertisements by cable television to the extent to which such rules do not make any distinction based on the origin of the advertisements, the nationality of the person providing the services or his place of establishment.

1 1 According to the first paragraph of Article 59 of the Treaty restrictions on freedom to provide services within the Community shall be progressively abolished during the transitional period in respect of nationals of Member States of the Community. The strict requirements of that provision involve the abolition of all discrimination against a provider of services on the grounds of his nationality or of the fact that he is established in a Member State other than that where the service is to be provided.

12 In view of the particular nature of certain services such as the broadcasting and transmission of television signals, specific requirements imposed upon providers of services which are founded upon the application of rules regu- lating certain types of activity and which are justified by the general interest and apply to all persons and undertakings established within the territory of the said Member State cannot be said to be incompatible with the Treaty to the extent to which a provider of services established in another Member State is not subject to similar regulations there.

n From information given to the Court during these proceedings it appears that the television broadcasting of advertisements is subject to widely divergent systems of law in the various Member States, passing from almost total prohibition, as in Belgium, by way of rules comprising more or less strict restrictions, to systems affording broad commercial freedom. In the absence of any approximation of national laws and taking into account the considerations of general interest underlying the restrictive rules this area, the application of the laws in question cannot be regarded as a restriction upon freedom to provide services so long as those laws treat all such services identically whatever their origin or the nationality or place of establishment of the persons providing them.

iz In view of that answer the question concerning the consequences which may arise from the direct applicability of Articles 59 and 60 of the Treaty where there is conflict between those provisions and national legislation has become devoid of object.

is The national court further asks if rules prohibiting the transmission of advertisements by cable television are not a measure which is dispro-

JUDGMENT OF 18. 3. 1980 — CASE 52/79

portionate in relation to its intended purpose owing to the fact that the prohibition on the broadcasting of commercial advertising by television remains relatively ineffective in view of the existence, in the Member States concerned, of the natural reception zones of certain foreign stations.

i9 Since the transmission of television signals by cable television enables them to be diffused over a wider area and improves their penetration, restrictions or prohibitions imposed on television advertising within its territory by a Member State do not lose their justification because of the fact that reception of foreign broadcasting stations is also possible throughout the national territory, or in certain areas thereof, without the intervention of any cable television system. The answer to the question asked must therefore be in the negative.

20 Finally, the national court wishes to know whether national rules prohibiting the transmission of advertisements by cable television create discrimination against foreign broadcasting stations owing to the fact that their geo- graphical location allows them to broadcast their signals only within the natural reception zone.

Costs

23 The costs incurred by. the Government of the Federal Republic of Germany, the Government of the Grand Duchy of Luxembourg, the Government of the United Kingdom, the Government of the French Republic and the Commission of the European Communities, which have submitted obser- vations to the Court, are not recoverable. As these proceedings are, in so far as the parties to the main proceedings are concerned, in the nature of a step in the proceedings pending before the national court, the decision on costs is a matter for that court.

On those grounds,

T H E COURT,

in answer to the questions referred to it by the Tribunal Correctionnel, Liège, by judgment of 23 February 1979, hereby rules:

1. Articles 59 and 60 of the EEC Treaty do not preclude national rules prohibiting the transmission of advertisements by cable television — as they prohibit the broadcasting of advertisements by television — if those rules are applied without distinction as regards the origin, whether national or foreign, of those advertisements, the nationality of the person providing the service, or the place where he is established.

A. Van Houtte H. Kutscher Registrar President

OPINION OF MR ADVOCATE GENERAL WARNER DELIVERED ON 13 DECEMBER 1979

My Lords, Both raise questions of interpretation of Articles 59 to 66 of the EEC Treaty, relating to the free movement of services. Introduction Both have as their background the Of these two cases, one, Case 52/79, activities of undertakings providing comes to the Court by way of a television diffusion services in Belgium. reference for a preliminary ruling by the Essentially, such a service consists in Tribunal Correctionnel of Liège, the picking up by means of an aerial other, Case 62/79, by way of a reference television signals that have been for a preliminary ruling by the Cour broadcast over the air and distributing d'Appel of Brussels. the signals by cable to the television sets