C-260/89

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O P I N I O N OF MR ADVOCATE GENERAL LENZ delivered on 23 January 1991 *

Mr President, Convention on Human Rights. Since, in the Members of the Court, view of the national judge, serious problems of Community law arose (in particular in relation to the principle of the free movement of goods and the corresponding exception in Article 36 of the EEC Treaty; A — Facts to Article 90 of the EEC Treaty, applicable, in conjunction with Articles 3(f), 85 and 86, to public undertakings; and to the general provision of Article 2 of the EEC Treaty) 1. The case in which I am giving my and since also problems were seen in opinion today is concerned with a television relation to Article 10 of the Convention on monopoly which the plaintiff in the main Human Rights, an order was made on 2 proceedings, a public undertaking under April 1989 to stay the proceedings and refer State control in accordance with Greek Law 10 questions to the Court for a preliminary No 1730/1987 (the rigour of which, let me ruling which I shall not now repeat but say so immediately, was, however, mitigated which were received by the Court only on by Law No 1866/1989 according to which 16 August 1989. television stations of a local character may be approved by ministerial decision).

9. It may then be said, with regard to the first question, that there is nothing in 7. As regards, on the other hand, the Community law to suggest that monopolies preliminary ruling in Case C-155/73, it is are in principle illegal. That follows already significant for the purposes of the present from Article 37 of the Treaty which only proceedings that in the questions which are requires monopolies of a commercial now referred to the Court it is obvious that character to be adjusted in order to ensure additional aspects are mentioned. In that there is no discrimination between principle however it must be said that even nationals of Member States. The same may after certain legal questions have been also be inferred from Article 90 of the clarified, a national court remains at liberty Treaty under which on the one hand it is to refer to the Court once again a question possible to grant undertakings exclusive which has been dealt with if in its view it rights (admittedly with the proviso that no has not been sufficiently clarified. measures are adopted which are incom- patible with the Treaty and in particular with Articles 7 and 85 to 94 thereof) and in which, on the other hand, in relation to financial monopolies, there is reference only to a limited application of the provisions of 8.2. As far as concerns the first question, the Treaty. This was made clear in the namely whether a law which allows a single abovementioned judgment in Case television broadcaster to have a television C-155/73, in which it is stressed that the monopoly for the entire territory of a Treaty does not prevent Member States Member State and to make television from removing television broadcasts from broadcasts of any kind is consistent with competition by granting one or more Community law, it must first be observed institutions the exclusive right to broadcast that in proceedings under Article 177 of the and that such a monopoly is not incom- EEC Treaty, as has been repeatedly stressed patible with Article 86. in the case-law, the Court cannot judge the compatibility of national laws with Community law. It can only — and the

11. If it is not desired to let those obser- 15. On the other hand, another obser- vations suffice with respect to the first vation, also emanating from the question (and there is reason for this in view Commission, deserves greater attention. It is of the broad terms of the questions and the based on the one hand on the fact that tele- observations of the parties), then the vision broadcasts, according to the case-law following considerations may be borne in (see the judgments in Cases C-155/73 and mind. C-352/85 4 ), are to be regarded as services for the purposes of the Treaty. On the other hand, it is based on the assumption that the plaintiff in the main proceedings has, 12. As you know, the Commission has put according to Law No 1730/1987, a forward observations in relation to the monopoly as regards the retransmission of principle of freedom to provide services which broadcasts from other Member States. (The assume that for the works of authors from national court must ultimately decide other Member States, contracts for licences whether this is actually the case and, as you can be concluded only with the television know, it was vigorously contested at the monopoly and that this may lead to a limi- hearing. In any event, in view of what was tation of the corresponding demand. It did said, one may well have the impression that however rightly add that this does not in in Greek case-law there are strong indi- itself amount to a restriction for the cations that the Commission's view is purposes of the Treaty. That could be said correct and that in consequence it may be only if State measures resulted in discrimi- accepted that the 1989 Law was concerned nation in favour of national works (nothing, in that respect only to clarify the law by an however, was said about that); if there were unambiguous provision). on the other hand independent conduct by the television monopoly in that regard, it would fall to be judged only under Article 86 of the Treaty. 16. Assuming that programmes from other Member States none the less to a certain extent compete with national programmes (since any linguistic problems do not apply 13. I can be just as brief with regard to the to the whole population or to every kind of observations — also made by the Commission — in respect of the right of 4 — Case C-352/85 Bond van Adverteerders and Others v The establishment which are to the effect that the Netherlands [1988] ECR 2085

17. That in my opinion must be accepted. It 18. Whilst therefore there can be no is of no consequence that the case cited was denying that the organization of the concerned with Article 37, which comes plaintiff's television monopoly, at least under Chapter 2 of the Treaty relating to under Law No 1730/1987, gives rise to quantitative restrictions. The prohibition of serious reservations from the point of view discrimination — and discrimination is to be of Community law, it is of no avail, and let regarded as a restriction within the meaning me say this also, for the purpose of of Article 59 — also applies to the provision dispelling them, that the restrictions must be of services (see Case C-352/85 6). It is, regarded as acceptable in this sphere on however, in fact easy to imagine the danger grounds of public policy (which is also of discrimination against foreign broadcasts mentioned in Article 56) or the general where a monopoly undertaking has its own interest. Although it was mentioned in the production company and is entrusted (as is judgment in Case C-52/79 7in relation to apparent from the preamble to Law No the broadcasting of advertisements, it must 1730/1987) with the special task of not be overlooked that in the main furthering and maintaining the national proceedings the issue is clearly not one of identity. It may moreover be accepted that preventing advertisements (which, the best means to 'ensure' (this expression is moreover, as the Commission rightly used in the judgment in Case C-59/75) that observed, could be achieved by less severe there is no such danger is to separate the measures). Nor does there seem to be any areas covered by the monopoly, that is to attempt to avert dangers to public policy on say, to abolish the retransmission monopoly. other grounds which could arise from It cannot therefore be accepted as sufficient foreign television broadcasts. Finally, there that since October 1988 the plaintiff in the is also no question of justification on main proceedings has in fact retransmitted technical grounds (avoidance of distur- 10 European programmes broadcast via bances in view of a limited number of available channels). In that respect the 5 — Judgment in Case C-59/75 Pubblico Ministero v Flavia Manghera and Others [1976] ECR 91. 7 — Case C-52/79 Procureur du Roi v Marc J. V. C. Debaiive 6 — Ibid. and Others [1980] ECR 833.

19. It could thus be held with regard to the 22.3. The second and third questions, to first question that an organization of a tele- which I shall now turn and which I shall vision monopoly whereby the body holding deal with together since they are concerned the monopoly has both the exclusive right to with problems of the free movement of goods, broadcast domestic programmes and to relate firstly to the problem as to whether retransmit foreign broadcasts is scarcely there is an infringement of Article 9 of the compatible with Community law. EEC Treaty (because technical material, films and other products which can be used for the broadcasting of television programmes can be intended only for the holder of the monopoly who is at liberty to choose domestic material); the second 20. To this it is certainly necessary to add problem is whether the grant of an exclusive that, in view of what we have heard, it television franchise to an operator may be seems highly questionable whether that regarded as a measure having equivalent finding is relevant to the case which is the effect within the meaning of Article 30 of subject of the main proceedings, since what the EEC Treaty. is at issue is apparently only the broad- casting of local programmes which are produced by the defendants themselves. If that is in fact so (and this is something which ultimately the national judge must decide), the fact that the grant to the 23.(a) I can again deal with the first part of plaintiff of the retransmission monopoly those questions very briefly. The French must be regarded as unlawful (on the basis Government rightly observes that Article 9, of the judgment in Case C-59/75) would which relates to the customs union, has no scarcely be of assistance. It would then be a bearing on quantitative restrictions on matter of purely internal nature for which imports but, as the relevant case-law shows, Community law offers no basis for a concerns only obstacles to imports by means solution. of charges. Since however there is nothing to show that the problems arising from the Greek television monopoly have anything to do with charges levied on imports it can certainly be said that arguments based on Article 9 of the Treaty have no relevance to 21. It must, moreover, also be borne in the main proceedings. mind that now (since the 1989 Law) there is a possibility of authorizing local television 8 — Sec paragraph 2 above.

27.4. The fourth question (which is 25. Objections would arise only if there concerned with whether a television were discrimination, that is if domestic monopoly may be justified under Article 36 products were unjustifiably favoured when of the EEC Treaty) likewise calls for few the right of selection was exercised. In that observations. respect reference may be made to the above mentioned judgment in Case C-155/73 which in paragraphs 7 and 8 describes such conduct as unlawful and also stresses that the exclusive right should not be used to 28. In that respect it is important to note favour, within the Community, particular that exclusive television rights are not in trade channels or particular commercial principle incompatible with the Treaty and operators in relation to others. Similarly, in that, in any event, they are, as such, not the judgments in Cases C-271/81 9 and covered by Article 30 (because they are C-30/87 10 relating to monopolies in the concerned with the provision of services). provisions of services which may indirectly This makes it clear that there can also be no affect trade between Member States, it is question of justification under Article 36, held that such monopolies would infringe which applies to the free movement of the principle of the free movement of goods goods. if there were discrimination against imported products as compared with domestic products.

31. So far as Article 3(f) is concerned (it states that the activities of the Community 34. To this it may furthermore be added shall include 'the institution of a system (with reference to the sixth question which ensuring that competition in the common involves Article 90(2)) that, even assuming market is not distorted'), it is obvious that it that the plaintiff is to be regarded as an is no more than the enunciation of a general undertaking entrusted, within the meaning principle which had to be given concrete of Article 90(2), with the operation of form in other provisions of the Treaty. In services of general economic interest, that itself it cannot therefore constitute a provision, in conjunction with Articles 3(f) criterion for judging measures taken by and 85, supplies nothing of relevance to the undertakings and the State; it can at most main proceedings because in the present do so only if recourse is had at the same case the latter provisions are of no signif- time to the other provisions which give it icance. concrete form.

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36. In that respect it is appropriate also to judgment in Case C-6/72 14 in which it was refer to a factor deriving from the sixth held that Article 3(f) requires that compe- question (in which, as we know, mention is tition should not be eliminated and that it is made of an undertaking entrusted with to be regarded as an abuse within Article 86 services of general economic interest within if an undertaking in a dominant position the meaning of Article 90). It is quite clear strengthens that position in such a way that that the main proceedings are concerned competition is substantially fettered. It is not with any specific conduct of the plaintiff also appropriate in that regard to recall to in the market (which moreover the national mind the judgment in Case C-311/84 in court would have to appraise — see which it was held that it was an abuse paragraph 18 of the judgment in Case within the meaning of Article 86 for an C-155/73) but with the question whether a undertaking in a dominant position (or an monopoly, created by the State, of the kind undertaking belonging to the same group) held by the plaintiff is compatible with to reserve for itself an ancillary task which Community law. could be carried out by a third undertaking.

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regarded as a substantial part of the economic interest, provides that the compe- common market), it must therefore be tition rules of the Treaty apply in so far as concluded that in so far as the plaintiff has they do not obstruct the performance of the been granted a dual monopoly there is an particular tasks assigned to such under- abuse within the meaning of Article 86 takings). which under Article 90(2) the Member State is prohibited from encouraging.

44.(b) I must on the other hand still say a few words about an aspect referred to in the 46.7. All that now remains is to consider the sixth question which is relevant in the problem, raised in questions nine and ten, as present context, that is to say, about the to whether the plaintiff's television problem of what is to be gleaned from monopoly is compatible with the objective Article 90(2) (which, with respect to under- (expressed in the preamble to the EEC takings entrusted with services of general Treaty and in Article 2 thereof) of the

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51. If, however, one adheres to the Court's 48.(b) On the other hand, as regards Article statement in its judgment in Case C-4/73 17 10 of the Convention on Human Rights to the effect that the Convention on Human (there is mention in it inter alia of the Rights can supply guidelines which should freedom to receive information or ideas be followed within the framework of regardless of frontiers, albeit evidently Community law, and if one is minded to subject to certain reservations), it is apply this in respect of Article 90(2) — in probably not necessary to consider further connection with the assessment of the the plaintiff's view that the main function of that provision is to ensure unbiased infor- 15 — See the eighth recital in the preamble to Council Directive mation and that it says nothing about the 89/552/EEC of 3 October 1989 (OJ 1989 L 298, p. 23). 16 — Joined Cases C-60 and C-61/84 Cinéthèqite SA v lawfulness of television monopolies, which Fédération Nationale des Cinemat Francait [1985] ECR were in fact common when the Convention 2605. 17 — Case C-4/73 Nold, Kohlen-und Bauttoffgroßbandlimg v was signed. Commitsion of the European Communitìet [1974] ECR 491.

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general interest which is relevant in regard television monopolies, it almost certainly to exclusive television rights — it still has to yields nothing, for the purpose of judging be acknowledged that, in the light of what television monopolies, which goes beyond we have learned from the practice of the what has already been said in connection Commission on Human Rights and the with the principle of the freedom to provide Court of Human Rights on the subject of services and with Article 90(1) in Article 10 of the Convention with resDect to conjunction with Article 86.

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(e) The right to freedom of expression applied to broadcasting and the distri- bution of television services, embodied in Article 10(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms, also represents a specific manifestation, in Community law, of a more general principle, namely freedom of expression. For the purpose of appraising television monopolies, it is not possible to derive from that principle anything that goes beyond the foregoing conclusions.'

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