C-23/93

TV1O

OPINION OF ADVOCATE GENERAL LENZ delivered on 16 June 1994 '

Summary

A — Introduction I - 4798

B — Opinion I - 4800

Preliminary remark I - 4800

Application of the criteria by the Court of Justice to the Netherlands Medi­ awet I - 4809 The Court's 'case-law on the avoidance of national rules' I - 4811

Consequences for the instant case I - 4812

Articles 10 and 14 of the European Convention on the Protection of Human Rights and Fundamental Freedoms I - 4816

C — Conclusion I - 4822

* Original language: German.

I - 4797

2. The main proceedings are between the (b) transmit programmes other than broadcasting body TV 10 (hereinafter 'the those mentioned in (a) which are appellant'), a company limited by shares and broadcast by a foreign broadcasting incorporated under Luxembourg law, and body or a group of such bodies as the Netherlands Commissariat voor de broadcasting programmes, in accor­ Media (hereinafter 'the respondent'). What dance with the legislation in force in prompted the dispute was the respondent's the broadcasting country. ...' refusal to authorize the programmes broad­ cast by TV 10 access to the Netherlands cable network. In the decision refusing such authorization, the respondent stated that TV 10 could not be regarded as a foreign broad­ casting body within the meaning of Article 4. TV 10 appealed to the Administrative 66(1) of the Mediawet (Media Law) on the Appeal Section of the Raad van State against ground that the appellant had established the decision refusing it authorization. The itself in Luxembourg manifestly in order to appellant considers that the contested deci­ evade the legislation applicable to domestic sion is open to challenge on several heads. It broadcasting bodies in the Netherlands. takes the view that the legal assessment of

I - 4798

TV10

6. In that connection, the national court states, on the basis of the judgment in 2 Debauve, that the provisions of the EEC Treaty on freedom to provide services cannot apply to activities whose relevant elements are confined within a single State. Referring to the judgment in Van Binsbergen, 3it states that Member States cannot be denied the right to take measures to prevent the exercise by a person providing services whose activi­ '(1) Where a broadcaster not eligible for ties are entirely or principally directed access to the cable network in Member towards its territory of the freedom guaran­ State A transmits material from Member teed by Article 59 for the purpose of avoid­ State B with the manifest purpose, as shown by objective circumstances, of thereby evading the legislation of the Member State to which the material is 1 — Since 1 November 1993 the EC Treaty in accordance will) the Treaty on European Union of 7 February 1992 (OJ 1992, C 224). 2 — Judgment in Case 52/79 Debauve [1980] ECR 833. 3 — Judgment in Case 33/74 Van Bmsbergen [1974] ECR 1299. 4 — Judgment in Case 79/85 Segers [1986] ECR 2375.

I - 4799

OPINION OF MR LENZ — CASE C-23/93

primarily but not exclusively transmit­ B — Opinion ted, is that a case of cross-border provi­ sion of services for the purposes of Community law?

Preliminary remark

10. I would also draw attention to a further factor. The national court has not asked about the applicability to the present case of the Community-law prohibition of discrimi­ 8. The appellant, the respondent, the Neth­ nation, which there might have been grounds erlands, German and French Governments to consider in the light of the access given to and the Commission of the European Com­ the Dutch cable network of transmissions of munities took part in the proceedings. The respondent referred in full to the observa­ tions of the Netherlands Government. I shall be returning to discuss details of the facts 5 — Council Directive 89/522/EEC of 3 October 1989 on the coordination of certain provisions laid down by law, regula­ and the parties' observations when I carry tion or administrative action in Member States concerning the pursuit of television broadcasting activities, OJ 1989 L out the legal assessment. 298, p. 23).

I - 4800

TV 10

RTL 4. The national court seems to have of the Court's 'case-law on avoidance of answered that question itself. The Court has national rules', 6 a provision of services been asked to consider the question of the within the meaning of Community law can­ prohibition of discrimination only in con­ not be taken to exist and consequently only nection with Article 14 of the European the legislation of the State in which the Convention on Human Rights. In that broadcasts are received concerning purely regard, the Court's power of review is sub­ domestic facts must be applied. ject to considerably narrower limits than when it considers the prohibition of discrim­ ination under Community law.

15. Services within the meaning of Commu­ 17. In order to be able to invoke the free­ nity law are defined in Article 60 of the dom to provide services under Community Treaty as services which are 'normally pro­ law, the appellant must, in the first place, ful­ vided for remuneration, in so far as they are fil the criteria characterizing persons to not governed by the provisions relating to whom the freedom applies. The appellant is a freedom of movement for goods, capital and company limited by shares which was incor­ persons'. Freedom to provide services is porated under Luxembourg law on 27 July accorded for services 'within the Communi­ 1989 under the name FICORT SA and was 7 ty', that is to say, the services must be renamed TV 10 SA on 1 September 1989. cross-border. The persons entitled to avail The company's objects are described, inter themselves of the freedom to provide ser­ alia, as 'in particular the broadcasting of tele­ vices are 'nationals of Member States who vision programmes'. In addition, according are established in a State of the Community to its objects clause, the company may pro­ other than that of the person for whom the duce radio and television programmes and services are intended'. 8 The expression provide ancillary services in that connection. 'nationals of Member States' within the The appellant has been recognized as a meaning of this provision covers both natu­ broadcasting body by the Luxembourg ral and legal persons. For the purposes of the authorities. Coupled with this, it has chapter of the Treaty on 'Services', legal per­ obtained authorization to transmit pro­ sons are equated with natural persons in grammes over the Luxembourg cable net­ accordance with Article 58 by virtue of Arti­ work. In addition, the 'Société Européenne 1 cle 66. According to Article 58, this applies des Satellites' 0has received authorization to 'companies or firms formed in accordance from the Luxembourg authorities to broad­ with the law of a Member State and having cast the programmes of the appellant, with their registered office, central administration which it has concluded a contract, via the or principal place of business within the Astra satellite. The production of the pro­ Community'. grammes and the technical and substantive implementation and organization of the broadcasting activity were to take place in Luxembourg.

The influence of the 'case-law on avoidance 19. As a rule, 11a provider of services within of national rides' on the existence of a provi- the meaning of Community law is estab­ sion of services lished in a Member State other than the one in which the recipient of the services is established. Established means, however, the existence of an actual, permanent connection with the economy of a Member State. In my view, the facts, as described, of the formation and establishment of the company, the pro­ curement of all the necessary authorizations 21. The Netherlands and German Govern­ for the broadcasting business and the com­ ments argue, as I have already pointed out, mencement of business operations are suffi­ that the appellant's broadcasting activity can­ cient evidence to hold that establishment has not be regarded as a provision of services taken place. within the meaning of Community law, since the appellant's intention to evade the Neth­ erlands legislation on the media puts this out of the question. They maintain that a princi­ ple may be inferred from the Court's case- 20. A broadcasting operation which extends law in the sphere of fundamental freedoms to or is directed at the Netherlands also ful­ to the effect that a person may not invoke fils the criterion of being a cross-border the freedoms guaranteed by Community law operation. The Court has in decided cases in order to evade legislation applicable to consistently categorized television transmis­ him. 12 sions as services, irrespective of the way in 3 which they are broadcast. 1 Even broadcasts 1 for advertising purposes are covered; 4 in that context, the advertising broadcast may

25. The last part of the sentence in particular raises doubts as to what legal consequences are to be linked with the avoidance of appli­ cable rules of professional conduct by a pro­ 23. For the purposes of the further assess­ vider of services. Does the wording mean ment of the question whether a provision of that the provider of services may, in an services within the meaning of Community appropriate case, fall outside the scope of the law is involved, the starting point should be rules on freedom to provide services and be the assessment made by the national court to subject to the right of establishment as if he the effect that legislation has been circum­ had established himself in the country where vented. the services are provided, or that he basically remains subject to the chapter on the provi­ sion of services, with the result that the con­ stitutive elements such as establishment of the provider of services in a Member State 24. The Court held as follows in Van Bins- other than that of the recipient of the ser­ bergen: 16 vices or the cross-border nature of the ser­ vices must be found to exist and the provider of services is additionally subject to the rules of professional conduct of the country in which the services are provided?

27. The Commission has also recognized the between freedom of establishment and free­ problem and set out cogent arguments with dom to provide services, this might consti­ regard to it in its observations. It argues tute a major cause of legal uncertainty. that the view taken in the 'Van Binsbergen case-law' can be seen from two angles. On the one hand, it can be regarded as a test for distinguishing between the application of Article 52 and Article 59 of the Treaty. The last part of the sentence in paragraph 13 of 29. The Commission underpins that conclu­ 19 Van Binsbergen and likewise the effects of sion by means of the following argument. that case-law militate in favour of such an The Member State in which the service is interpretation. On the other hand, the case- provided is not obliged to apply the rules of law may be understood as being an exception professional conduct in force in its territory: to Article 59 of the Treaty, which assumes the 'Van Binsbergen case-law' gives it the that in principle a service within the meaning right to 'defend itself'. That Member State of Article 59 is provided. may — provided that all the requirements are met — require all the rules of profes­ sional conduct to be complied with or, if it wishes, just some of them; but this possibility of intervening affords no pointer to the posi­ tion in the Member State in which the pro­ vider of services is officially established. Is the latter Member State entitled to apply none of the provisions which apply in its ter­ ritory (on the ground that, according to the 28. The Commission argues that the distinc­ first interpretation, the undertaking in ques­ tion is important in so far as the first inter­ tion is deemed to be 'established' in the pretation assumes that only the legislation of Member State in which it provides services) the State in which the service is provided is or is it entitled to apply its provisions only applicable, whereas in contrast, according to to the extent to which the other Member the second interpretation, the provider of the State does not intervene? In any event, the service is subject in any event to the legisla­ first interpretation requires close cooperation tion of the Member State in which it is (offi­ between the authorities of the two Member cially) established and may, additionally, be States. subject to the legislation of the State in which it provides the service. As a result, the second interpretation results in the concur­ rent application of two possibly irreconcil­ able legal situations, which constitutes a not insignificant impediment. Nevertheless, the Commission tends to prefer the latter inter­ 30. What is more, the 'Van Binsbergen case- pretation on the ground that, if the 'Van law' applies only to 'rules of professional Binsbergen case-law' were to be interpreted conduct'. The Commission takes the view as being simply a criterion for distinguishing that — in view of the fact that the 'Van Bins- bergen case-law' (whichever interpretation is followed) is to be placed in the context of the Treaty provisions on the abolition of 18 — Sec the Commission's observations, sections 12 and 13, at restrictions on the exercise of an economic p. 10 et seq. 19 — Quoted in section 24 utpnt. activity in the Community — 'rules of pro-

33. In the first place, I therefore consider that, regard being had to the Van Binsbergen 31. I would add the following to the Com­ judgment and subsequent case-law, only the mission's — valid — arguments. The inter­ provisions on freedom to provide services pretation of the judgment in Van Binsbergen apply. It is only within the framework of the according to which it is a test for determin­ freedom to provide services that the law of ing the demarcation line between the appli­ the country in which the services are pro­ cability of the provisions on freedom to pro­ vided can be applied under certain circum­ 21 vide services and the applicability of the stances as a limitation of or an exception provisions on freedom of establishment does to the freedom as if the provider of services not convince me, as that approach would in were established in that country. any event disregard to some extent the real establishment of the provider of services and proceed on the basis of a fictitious establish­ ment of the provider of services in the coun­ try in which the services are rendered. Leav­ ing aside abuse or circumventing devices, it is the declared aim of the provisions on free­ dom to provide services to permit the provi­ 34. Admittedly, a factor against the point of sion of services to take place free of restric­ view which I have taken is the proliferation tion without maintaining an establishment in of applicable legal systems, which is the the Member State in which the recipient of opposite of that which was intended by the the services is located. In the judgment in freedom to provide services. Nevertheless, 20 Van Binsbergen and subsequent case-law, that argument cannot prevail. In common it was certainly not a question of regulating with all exceptions, this one must be nar­ establishment but of subjecting a particular rowly construed. In so doing, strict attention cross-border activity to the relevant rules of professional conduct.

must be paid that it covers only the applica­ 37. The application of national law is a mat­ tion of rules of professional conduct which ter for the national court alone. In the final the provider of services seeks to circumvent. analysis, whether a broadcasting body is classed as foreign or domestic for the pur­ poses of the Netherlands Mediawet consti­ tutes the application of domestic law. How­ ever, the national court has doubts about the consistency with Community law of the statutory interpretation which it advocates. It therefore considers that the preliminary 35. Consequently, the potential application questions are relevant for the purposes of its also of the rules of professional conduct of decision and that the request for a prelimi­ the State in which the services are provided nary ruling is necessary. As the Court has in the event of abuse or avoidance of consistently held, in preliminary-ruling pro­ national provisions does not exclude in prin­ ceedings the Court will provide the national ciple the facts of the present case from the court with the criteria which it needs in scope of the provisions on freedom to pro­ order to decide the case before it consistently 22 vide services. As appears objectively on the with Community law. face of it, the cross-border television broad­ casting activity at issue in the main proceed­ ings is therefore to be classed as a service within the meaning of Community law.

Prohibition of restrictions as the substance of freedom to provide services

II. The second question

within the national territory or which may- restrictions is not always clear. In any prevent or otherwise obstruct the activities event, it can be inferred from the Court's 23 29 of the person providing the service'. case-law that any provision which, de jure or de facto, impedes the freedom to provide services may constitute an infringement of Article 59 of the EC Treaty; in each individ­ ual case it is necessary to check the compat­ 30 ibility of the impediment with Article 59. 39. In accordance with this view, the prohi­ 24 bition of restrictions, which has been directly applicable since the end of the tran­ sitional period, is primarily a prohibition of 25 discrimination. In this connection, prohi­ bitions do not consist only of overt unequal treatment but also of covert forms of dis­ crimination, which, albeit ostensibly based 41. In view of the particularities of many on neutral criteria, have in fact the same 26 services, certain special requirements result. National rules which are not appli­ imposed on the provider as a result of the cable to all services without discrimination as application of rules governing the relevant regards their origin are compatible with type of activity may be regarded as compat­ Community law only if they can be brought ible with the Treaty. However, freedom to within the scope of an express exemption, provide services may be restricted only by such as that contained in Article 56 of the 27 provisions which are applicable without dis­ Treaty. crimination and justified by the public inter­ est, provided that that interest is not safe­ guarded by the provisions to which the provider of the services is subject in the State 31 of his establishment.

28 — Cf. the Opinion of Advocate General Jacobs in Case 23 — Judgment in Van Binsbergen, cited in footnote 3, paragraph C-76/90 (judgment in Säger [1991] ECR 1-4221, at 1-4229, 10; cf. to the same effect the judgment in Case paragraphs 20, 21 and 22). 39/75 Coenen [1975] ECR 1547, paragraph 6. 29 — Judgments in Case 278/80 Webb [1981] ECR 3305, para­ 24 — Judgment in Van Binsbergen, paragraph 23. graph 6, and in Case 205/84 Commission v Germany, cited 25 — Judgment in Case C-288/89 Collectieve Antennevoorzien- in footnote 16. ing Gouda, cited in footnote 12, paragraph 10. 30 — Cf. my Opinion in Case C-154/89 Commission v France, 26 — Cf. my Opinion in Case C-154/89 (judgment in Commis- cited in footnote 26, paragraph 9. sion v France [1991] ECR 1-659, at 1-666, paragraph 27). 31 — Judgment in Case 205/84 Commission v Germany, cited in 27 — See the judgment in Case C-288/89 Collectieve Anten- footnote 16, paragraph 27; judgment in Case 279/80 Webb, nevoorziening Gouda, cited in footnote 12, paragraph 11. cited in footnote 29, paragraph 7.

I - 4808

TV10

34 — Judgment in Joined Cases 110 and 111/78 Ministère Public 38 — Cited in footnote 12. anti Another v VAN Wesemael [1979] ECR 35, paragraph 30; 39 — Cited in footnote 12. judgment in Case 205/84 Commission v Germany, cited in 40 — Veronica Omroep Oiganisatie, paragraph 9, where reference footnote 16, paragraph 27. is made to Commission v Netherlands, paragraphs 3, 29 and 35 — Opinion in Case C-76/90 Sager, cited in footnote 28, para­ 30, and Collectieve Antennevoorzienuig Gouda, paragraphs graph 29. 22 and 23 (all cited in footnote 12). 36 -— For instance. Case 205/84 Commission v Gennany, cited in 41 — Veronica Omroep Organisatie, paragraph 10, where refer­ footnote 16, paragraph 41 et seq. and Case C-288/89 Col- ence is made to Commission v Netherlands, paragraphs lectieve Antennevoorztening, cited in footnote 12, para­ 41 and 42, and Collectieve Antennevoorziening Gouda, graph 15. paragraphs 23 and 24 (all cited in footnote 12).

I - 4809

OPINION OF MR LENZ — CASE C-23/93

tions, as confirmed at the hearing, it was pre­ in Article 2 which, however, was not yet cisely this legislative decision which led the applicable at the material time as far as the 45 establishment of a commercial broadcasting present case is concerned. body in the Netherlands and to the forma­ tion of the appellant company.

that provision can be ascribed to the Whereas it is necessary, in the common market, that all broadcasts emanating from and intended for reception country-of-origin principle. A comparable within the Community and in particular those intended for approach is, moreover, bindingly reception in another Member State, should respect the law of the originating Member State applicable to broadcasts 43 prescribed by Directive 85/552/EEC intended for reception by the public in that Member State and the provisions of this Directive; Whereas the requirement that the originating Member State should verify that broadcasts comply with national law as coordinated by this Directive is sufficient under Commu­ nity law to ensure free movement of broadcasts without 42 — Case C-353/89 Commission v Netherlands, cited in foot­ secondary control on the same grounds in the receiving note 12, paragraph 40 et seq. Member States ...'. 43 — Cited in footnote 5. 45 — Article 25 of Directive 89/552.

I-4810

TVIO

50. As I have already mentioned, there is case-law of the Court of Justice on funda­ mental freedoms which is characterized by refusal to allow the person concerned to invoke fundamental freedoms in the event of the avoidance of national provisions or the abuse of the freedoms guaranteed by Com­ munity law. 'However, it is not possible to disregard the legitimate interest which a Member State may have in preventing certain of its nation­ 46 — The possibility for Member States to lay down stricter pro­ als, by means of facilities created under the visions for television broadcasters subject to their jurisdic­ tion is preserved even following the entrv into force of Directive 85/552. See Article 3(1) of Directive 89/552 and the thirteenth recital in the preamble thereto: 'Whereas this Directive lays down the minimum rules needed to guaran­ tee freedom of transmission in broadcasting; whereas, 47 — Judgment in Case 229/83 Leclerc v Au blé vert [1985] ECR therefore, it does not affect the responsibility of the Mem­ 1, paragraph 27 and operative part. To the same effect, see ber States and their authorities with regard to the organiza­ also the judgments in Case 299/83 Leclerc v Syndicat de tion — including the systems of licensing, administrative Librairies de Loire-Océan [1985] ECR 2515 and in Case authorization or taxation — financing and the content of 95/84 BonelL· v Darras and Tostam [1986] ECR 2253. programmes; whereas the independence of cultural devel­ 48 — Judgment in Case 39/86 Lair v Universität Hannover opments in the Member States and the preservation of cul­ [1988] ECR 3161, paragraph 43. tural diversity in the Community therefore remain unaf­ 49 — Judgment in Case 115/78 Knoors v Secretary of State for fected'. Economic Affairs [1979] ECR 399, paragraph'25.

52 In the judgment in Van de Bijl, the Court made substantively the same observation, with a minor change in terminology in that it employed the phrase 'Maßnahmen zu ergriefen' (take measures) instead of the 54. The provisions, the avoidance of which phrase 'Elaß von Vorschriften' (adopt provi­ is at issue in this case, govern television sions). (The same phrase 'take measures' is broadcasting. This is without doubt an occu­ invariably used in the English version: trans­ pational activity and hence the provisions are lator.) The most up-to-date judgment and to be ascribed to a broadly construed con­ the one which is closest in point of content cept of 'rules of professional conduct'. to the present case, Veronica Omroep 53 Organisatie, in which the Court applied the principles in a case relating to radio and 54 — In the judgment in Case C-211/91 Commission v Belgium [1992] ECR I-6757, paragraph 12, the application of the principles on circumvention was considered but refused. 55 — The Commission's answer to written question No 50 — Quoted verbatim in section 24 supra. 1101/89 is worthy of attention in this regard. According to 51 — See paragraph 13 of the judgment, cited in footnote 3. The that answer, during the discussions in the Council preced­ ing the adoption of Directive 89/552, the Commission Court repeated this verbatim in Coenen, cited in footnote stated, referring to the judgment in Van Binsbergen, that, in 20, paragraphs 8 to 11, and in Commission v Germany, carrying out its appointed duties and interpreting the law, it cited in footnote 16, paragraph 22. would ensure that the case-law of the Court of Justice of 52 — Judgment in Van de Bijl, cited in footnote 20, paragraph 26. the European Communities regarding avoidance of national 53 — Cited in footnote 12, paragraph 12 of the judgment. rules was respected (OJ 1990 C 125, p . 34).

59. In the first place, it should be considered 57. In its written observations, the Commis­ on the basis of what facts a circumvention sion described this aspect as a subjective cri­ can be found to have taken place. Circum­ terion, but ceased to do so at the hearing. In vention of a law or an abuse of law is regu­ this connection, the question arises as to how larly characterized by an intention to cir­ the 'avoidance' must come about and on the cumvent or abuse, which is undoubtedly a basis of what circumstances it may be deter­ subjective factor. Consequently, the interpre­ mined. It turns in particular on whether sub­ tation of the Van Binsbergen case-law put jective criteria are involved — which espe­ forward by the Commission to the effect cially in the case of legal persons are scarcely that there is an objective and a subjective test susceptible of proof — or avoidance deter­ suggests itself. In the judgments in Van Bins- mined on the basis of objective circum­ bergen, Coenen, Knoors and Van de Bijl, it stances. was a question of assessing the conduct of natural persons and hence it was possible to take account of intention and motives.

56 — The national court also seems to have proceeded on the 58. Both in the parties' written observations basis of this assessment, since it submitted the facts found by it for assessment by the Court of Justice by way of pre­ and at the hearing it was observed on several liminary ruling.

I-4813

OPINION OF MR LENZ — CASE C-23/93

61. A uniform manner of imputing acts of natural persons to the sphere of responsibil­ ity of a legal person which was valid in Community law for all Member States could be established, in my view, only by means of a comparative study. In the absence of the 64. On the other hand, it should not be prior establishment of such a legal basis in ignored that in a case involving a potential Community law, I regard the employment of subjective criteria for assessing the legally relevant conduct of a legal person as prob­ 57 — Judgments in France v Commission, cited in footnote 9, lematic. Consequently, I consider that the paragraph 18, and in Segers, cited in footnote 4, paragraph 13. avoidance of legal provisions by a legal per­ 58 — The Queen v The Secretary of State for Transport, Ex parte son should be able to be determined using Factortame Limited and Others [1991] ECR 1-3905, para­ graph 33. objective criteria. 59 — Factortame, paragraph 32.

I - 4814

TV10

I-4815

OPINION OF MR LENZ — CASE C-23/93

deprived of the status of a foreign broadcast­ Convention is at stake. To require it to fulfil ing body. In any event, the Member State is all the requirements for establishment, which empowered to frustrate an attempt by an at the material time were exclusively those of undertaking to evade the jurisdiction of that a public system to which TV 10 precisely did State by treating the company in that respect not wish to belong is, it argues, tantamount as if it were subject to its jurisdiction. to an actual, absolute bar on all its corporate activities. Since the freedom in question is a fundamental right, Community-law provi­ sions should not be construed in such a way as to deprive the freedom to provide services of its substance.

Articles 10 and 14 of the European Conven­ tion on the Protection of Human Rights and Fundamental Freedoms

72. This applies a fortiori because at the 69. It remains to be considered whether that material time the Netherlands authorities intermediate outcome can stand up against had authorized the programmes of another the background of Articles 10 and 14 of the Luxembourg broadcasting body. Even if the European Convention on Human Rights. Netherlands authorities had wished to The national court's second question authorize TV 10 to establish itself in the expressly asks about the effects of Articles Netherlands, under Article 10 in conjunction 10 and 14 on the Community-law assess­ with Article 14 of the European Convention ment of the issue in question. they would have had to have taken account, in fixing the conditions for its establishment, of the fact that in taking that decision they were not entitled to practise any discrimina­ tion with regard to TV 10's status.

74. The Netherlands Government starts by sible for them to do so'. The German Gov­ expressing doubts about the jurisdiction of ernment goes on to state as follows: the Court of Justice to decide on the refer­ ence made by the national court to the Euro­ pean Convention. It goes on to refer to the judgment in Elliniki Radiophonia Tileoras- 61 si. In the event that the Court should con­ sider itself to have jurisdiction to consider the national court's reference to the Euro­ pean Convention, the Netherlands Govern­ ment takes the view with regard to Article 'In this connection, the supra-national legal 10 of the European Convention that the provisions take account of the fact that each restrictions on freedom to provide services programme is produced in accordance with resulting from the application of the Medi­ the legislation applicable to it, that is to say, awet are justified on the grounds of the pre­ the relevant national broadcasting legislation. vention of disorder and the protection of This means programmes intended for the rights of others within the meaning of Arti­ Member State in question and not — in cle 10(2). That conclusion has already been accordance with the meaning of Article 10 of reached by the national court. In the Nether­ the European Convention — programmes lands Government's view, it should be held produced with the intention of evading the with regard to the principle of equal treat­ provisions of the national broadcasting legis­ ment that the appellant, as a non-foreign lation through the choice of the place of broadcasting body, should be subject to the 62 establishment.' same provisions as Netherlands broadcasting bodies. Consequently, TV 10 is not the vic­ tim of discrimination within the meaning of Article 14 of the European Convention vis- à-vis comparable Netherlands broadcasting bodies. This, too, has already been held by the national court.

of national rules is to be taken into account. tion have no impact on the questions to be The German Government argues that, in considered in this case. Article 10 embodies such case, the same considerations apply as the right to freedom of expression. Article in the case of the circumvention of provi­ 10(2) allows the exercise of that right to be sions of the EEC Treaty. It is not the pur­ subject to such formalities, conditions and pose of Article 10 of the European Conven­ restrictions as are prescribed by law and are tion to enable a broadcaster lawfully to necessary in a democratic society. Article circumvent national legislation. This assess­ 14 prohibits discrimination with regard to ment corresponds, it maintains, to the view the rights and freedoms set forth in the Con­ taken by the European Court of Human vention. It is not argued that the rules of Rights, which has held that it was permissi­ professional conduct applied to broadcasters ble for the authorities of a Contracting State in the Netherlands are incompatible with to regard a broadcaster established abroad as Article 10 of the Convention. The Commis­ a domestic broadcaster where the station was sion cannot see how the application of those established abroad in order to evade the rules to an undertaking established abroad 63 domestic broadcasting legislation. can be incompatible with Articles 10 and 14 of the European Convention in a specific situation such as that described in the Van Binsbergen case-law where an undertaking deliberately circumvents rules which in themselves are compatible with the Conven­ tion. 77. As regards the possible violation of the prohibition of discrimination set out in Arti­ cle 14 of the European Convention, the Ger­ man Government argues that that which is permissible under Article 10(2) of the Euro­ pean Convention in order to prevent circum­ vention is objectively necessary and hence not arbitrary. As regards possible discrimina­ tion vis-à-vis foreign broadcasters as a result 79. In the past, the Court of Justice has been of the appellant's being treated as a domestic repeatedly asked to apply and interpret pro­ broadcaster, the fact of circumvention pre­ visions of the European Convention on cludes per se reliance on the prohibition of Human Rights. The Court of Justice has discrimination. held as follows with regard to its jurisdiction to review legislative measures for compatibil­ ity with the European Convention:

80. However, the fundamental rights safe­ guarded by the Convention, in particular 81. Referring to the judgments in Cinéth- 7 7 Article 10 thereof, number among the funda­ 'eqiie 0 and Demirel, 1the Court further mental rights guaranteed by the Community stated that it had no power to examine the legal order. 65 In the judgment in Elliniki compatibility with the European Convention Radiophonia Tileorassi the Court of Justice on Human Rights of national ruleswhich took the opportunity, on a reference for a did not fall within the scope of Community preliminary ruling concerning Article 10 of law. 'On the other hand, where such rules do the European Convention, to give its views fall within the scope of Community law, and in principle on the relationship between reference is made to the Court for a prelim­ Community law and the European Conven­ inary ruling, it must provide all the criteria tion on Human Rights. Referring to the of interpretation needed by the national judgments in Nold, 6 6 Johnsto n 67 and court to determine whether those rules are Wacbauf, 68 the Court stated that it first had compatible with the fundamental rights the to be pointed out that, as it had consistently observance of which the Court ensures and held, fundamental rights formed an integral which derive in particular from the Euro­ 72 part of the general principles of law, the pean Convention on Human Rights.' observance of which it ensured. For that pur­ pose, the Court drew inspiration from the constitutional traditions common to the Member States and from the guidelines sup­ plied by international treaties for the protec­ tion of human rights on which the Member States had collaborated or of which they were signatories. The European Convention had special significance in that regard. It fol­ 82. In so far as the application of the 'case- lowed that the Community could not accept law on avoidance of national rules' may be measures which were incompatible with construed as an exception to the freedom to provide services, the Court's subsequent observations in Elliniki Radiophonia Tileo-

84. The Court of Justice has invariably held back from applying in practice the general 'In particular, where a Member State relies legal principles defined in the European on the combined provisions of Articles Convention. In Hoechst v Commission, 75 in 56 and 66 in order to justify rules which are which a violation of Article 8 of the Euro­ likely to obstruct the exercise of the freedom pean Convention was alleged, the Court to provide services, such justification, pro­ stated in one sentence that that provision vided for by Community law, must be inter­ was not applicable to the actual facts of the preted in the light of the general principles of case and went on to observe as follows: law and in particular of fundamental rights. Thus the national rules in question can fall under the exceptions provided for by the combined provisions of Articles 36 and 66 only if they are compatible with the fun­ damental rights the observance of which is 'Furthermore, it should be noted that there is ensured by the Court.' 73 no case-law of the European Court of 76 Human Rights on that subject.'

85. There is case-law of the European Court 83. Basically, those observations are likewise of Human Rights on the application of Arti­ applicable to this case. In the judgment, the cles 10 and 14 of the European Convention Court goes on to draw the following conclu­ to facts similar to those of the instant case. In sion from the above: Groppera Radio AG and Others v Switzer- 77 land, the European Court of Human Rights held as follows in considering the jus­ tification of restrictions on the distribution of radio broadcasts by cable networks:

86. In that case the majority of the judges assumed that the applicant's broadcasting operation was to be adjudged unlawful under the legislation of the State from which the broadcasts were transmitted. In that respect, the Groppera Radio case differs from the one now before this Court. However, it may be inferred from the dissenting judg­ The Commission notes that, while the appli­ ments of Judges Petitti, Bernhard and De cant company is incorporated under British Meyer that it was not established that the law and has its seat in the United Kingdom, transmitting operation was illegal. the programme at issue is specifically intended for the Dutch public. In these cir­ cumstances and having regard to the fact that both the company and the Cable One pro­ gramme have other strong links with the Netherlands, the Dutch authorities could reasonably consider that these broadcasts 87. A decision of the European Commission should be subject to those rules which nor­ 79 of Human Rights contains the following mally apply to Dutch broadcasting institu­ tions. There is no indication that these rules, in so far as they are relevant to the present case, involve restrictions which would be in 78 — Paragraph 73 of the judgment. 79 — Case 1803/91 Cable Music Europe Ltd v Netherlands. violation of Article 10 of the Convention.'

I - 4821

OPINION OF MR LENZ — CASE C-23/93

88. In the same decision, the Commission means employed and the aim sought to be stated as follows in considering Article 14 of realized ...'. the European Convention:

(2) In order to prevent the circumvention of a law, Member State Y in which the broadcasts are received is entitled to take measures which exceptionally impose restrictions on the provision of the services whereby the broadcaster is denied the status of a foreign broadcasting body and is therefore subjected to the provisions applicable to domestic broadcasting bodies. The application

I - 4822

TV 10

without discrimination of the rules applicable to domestic broadcasting bodies is permissible in that connection provided that

(i) the activity is entirely or principally directed towards that Member State and

(ii) the provider of the services is utilizing the freedom guaranteed by Article 59 of the EC Treaty in order to avoid provisions which would be applicable to it if it were established in that Member State.