C-222/94

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OPINION OF ADVOCATE GENERAL LENZ delivered on 30 April 1996 *

A — Introduction provide services protected by those provi­ sions is also applicable if a cable network operator established in one Member State distributes television programmes of broad­ casters from other Member States. 3

1. The present case and Case C-11/95, in which I am also delivering my Opinion today, provide the Court with its first oppor­ tunity to address some of the central prob­ lems arising from Council Directive 89/552/EEC of 3 October 1989 on the coor­ dination of certain provisions laid down by 3. The principal objective pursued by the law, regulation or administrative action in television directive is to remove barriers to Member States concerning the pursuit of the free provision of television broadcasting television broadcasting activities 1 (hereinaf­ services. 4 The recitals in the preamble to the ter 'the television directive'). directive state as follows:

Relevant provisions of Community law

[15] ... the requirement that the originating Member State should verify that broadcasts comply with national law as coordinated by this Directive is sufficient under Community [12] ... it is consequently necessary and suffi- law to ensure free movement of broadcasts cient that all broadcasts comply with the law without secondary control on the same of [the] Member State from which they grounds in the receiving Member States; ... emanate'. 5 however, the receiving Member State may, exceptionally and under specific conditions, provisionally suspend the retransmission of televised broadcasts'. 7

According to the grounds given by the Council, the television directive lays down 'the minimum rules needed to guarantee 4. Article 1 of the television directive, which freedom of transmission in broadcasting'. comprises Chapter I thereof, sets out a num- The organization, financing and content of ber of definitions. The term 'television programmes remain the responsibility of the broadcasting', inter alia, is there defined for

5 — Ninth to the twelfth recitals in the preamble to the television 6 — 13th recital in the preamble to the television directive. directive. For the sake of clarity, I have added the appropri- 7 — 14th and 15th recitals in the preamble to the television direc- ate number in square brackets. tive.

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the purposes of the directive. That term is satellite capacity granted by, or a satellite there to be understood as meaning 'the initial up-link situated in, that Member State, transmission by wire or over the air, includ­ ing that by satellite, in unencoded or encoded form, of television programmes intended for reception by the public'.

— by broadcasters who, while not being (c) the Member State concerned has notified under the jurisdiction of any Member the broadcaster and the Commission in State, make use of a frequency or a writing of the alleged infringements and

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of its intention to restrict retransmission tion to lay down more detailed or stricter should any such infringement occur rules in the areas covered by this Directive. again;

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7. Article 4 of the directive accordingly pre­ requires Member States to ensure that televi­ scribes that the Member States shall ensure sion broadcasts by broadcasters under their 'where practicable and by appropriate jurisdiction do not include programmes means' that broadcasters reserve for Euro­ 'which might seriously impair the physical, 1 pean works 1a majority proportion of their mental or moral development of minors, in transmission time, excluding the time particular those that involve pornography or appointed to news, sports events, games, gratuitous violence'. advertising and teletext services (Article 4(1)). If this proportion cannot be attained, it must not be lower than the average for 1988 or 1990 in the Member State concerned (Article 4(2)).

10. Chapter VI (Article 23) of the directive deals with the right of reply. Chapter VII (Articles 24 to 27) contains final provisions. Under Article 25(1) of the directive, Member States were required to bring into force the Article 5 of the directive requires Member laws, regulations and administrative provi­ States to ensure, 'where practicable and by sions necessary to comply with that directive appropriate means', that broadcasters reserve not later than 3 October 1991. Under Article at least 10% of their transmission time, or at 25(2) of the directive, the text of the main least 10% of their programming budget, for provisions of national law adopted by the European works created by producers who Member States in the fields governed by the are independent of broadcasters. directive had to be communicated to the Commission.

d. "Programme service" means all the items 12. The provisions of the Convention within a single service provided by a include the following: given broadcaster within the meaning of the preceding paragraph;

'Article 2: Terms employed

For the purposes of this Convention: Article 3: Field of application

a. "Transmission" means the initial emission by terrestrial transmitter, by cable, or by This Convention shall apply to any pro- satellite of whatever nature, in encoded or gramme service transmitted or retransmitted unencoded form, of television programme by entities or by technical means within the services for reception by the general pub- jurisdiction of a Party, whether by cable, ter- lic. It does not include communication restrial transmitter or satellite, and which can services operating on individual demand; be received, directly or indirectly, in one or more other Parties.

c. "Broadcaster" means the natural or legal Article 5: Duties of the transmitting Parties person who composes television pro- gramme services for reception by the general public and transmits them or has

1. Each transmitting Party shall ensure, by 13 — This recital is worded as follows: '... the Council of Europe appropriate means and through its compe- has adopted the European Convention on Transfrontier Television'. tent organs, that all programme services

The legal position in the United Kingdom

i. the Party in which the satellite up-link is situated; 13. The provision of television services by independent broadcasters is governed in the United Kingdom by Part I of the Broadcast­ 14 ing Act 1990. The Act provides in this

ii. the Party which grants the use of the 14 — Broadcasting Act 1990 of 1 November 1990. As is clear frequency or a satellite capacity when from section 2(l)(a) of the Broadcasting Act 1990, this cov­ the up-link is situated in a State which ers all broadcasters other than the BBC and the Welsh Authority (responsible for Wales) (with regard to the latter, is not a Party to this Convention; see section 56 et scq. of the Act).

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regard for the establishment of a commission television broadcast falls within one or the — the Independent Television Commission other category: (hereinafter 'the ITC') — on which impor- tant functions are conferred.

14. Under section 13 of the Act, television services may be provided by independent broadcasters only if they hold an appropriate licence. This licence is issued by the ITC. (a) television programmes are transmitted by satellite from a place in the United Kingdom for general reception in the United Kingdom or another Commu- nity Member State otherwise than on a frequency allocated to the United Kingdom; or 15. Chapter III (sections 43 to 45) of Part I of the Broadcasting Act 1990 contains provi- sions on television broadcasts transmitted by satellite. In this connection, section 43 distin- guishes two types of television broadcasts. Both types are 'television services' within the (b) television programmes for general meaning of the Act, with the result that their reception in the United Kingdom or provision is subject to possession of a another Community Member State licence. Section 43 also sets out the criteria are transmitted by satellite from a which conclusively determine whether a place which is neither in the United

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Kingdom nor in any other Commu­ 17. Chapter IV of Part I of the Broadcasting nity Member State, if and to the Act 1990 contains provisions relating to 'li- extent that the programmes consist of censable programme services'. According to material provided by a person in the the information provided by the United United Kingdom who was in a pos­ Kingdom, these are services connected to the ition to determine what was to be preparation of programmes to be broadcast included in the service. over cable networks and which do not come under any other provisions of the Broadcast­ ing Act 1990.

20. Following an examination of the provi- sions of the Broadcasting Act 1990, the Commission formed the view that the and United Kingdom had failed correctly to transpose several articles of the television directive into national law. The Commission sent a letter to the United Kingdom on 3 November 1992 inviting it, pursuant to Article 169 of the Treaty, to set out its views (b)by exercising control over broadcasts on the criticisms raised by the Commission. which are transmitted by a broadcaster The United Kingdom submitted its observa- that falls under the jurisdiction of another tions on those criticisms in a letter of Member State when those broadcasts are 10 February 1993. transmitted by a non-domestic satellite service or conveyed to the public as a li- censable programme service or by a local delivery service,

21. The Commission sent a reasoned opin- ion to the United Kingdom on 30 September 1993, to which the latter responded by letter of 25 January 1994. the United Kingdom has failed to fulfil its obligations under Article 2(1) and (2) and Article 3(2) of the television directive.

22. The Commission lodged an application under Article 169 of the Treaty with the Court of Justice on 28 July 1994, which forms the basis of the present proceedings. In its application, the Commission submits The Commission also requests that the that the Court should declare that United Kingdom be ordered to pay the costs of the proceedings.

(a) by adopting with respect to satellite broadcasts the criteria set forth in section 43 of the Broadcasting Act 1990 for determining which satellite broadcasters 23. The defendant contends that the applica- fall under the jurisdiction of the United tion should be dismissed. France has inter- Kingdom, and, within that jurisdiction, vened in the proceedings in support of the by applying a different regime to non- Commission.

Review of the complaints raised by the Com­ mission 27. The main issue in the present proceed­ ings concerns the question how the rules contained in Articles 2(1) and 3(2) of the directive, referring to television broadcasters

26. The parties to the present dispute agree that it is 'necessary and sufficient' under the 16 — See the 12th recital in the preamble to the television direc­ scheme of the television directive that televi­ tive. 17 — I am borrowing this terminology from the television direc­ sion broadcasts 'comply with the law of the tive (see the 12th and 14th recitals in the preamble). Surpris­ ingly, the German version of the 15th recital uses the term 'Sendestaat' [State of transmission], whereas other language versions (such as the French and English) refer here also to 'originating Member State'. 15 — Broadcasting (Foreign Satellite Programmes) (Specified 18 — This issue lies at the centre of the dispute in Case C-11/95, Countries) Order 1991 (S.I. 1991 N o 2124). already mentioned above.

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In respect of the last complaint, the United Kingdom takes the view that the television 28. The Commission argues that there are directive allows a less stringent regime for other grounds on which the rules contained NDSS. It adds, however, that section 188 of in section 43 of the Broadcasting Act the Broadcasting Act 1990 enables the Min- 1990 are contrary to Articles 2(1) and 3(2) of ister responsible to direct the ITC to instruct the television directive. First, the criterion of NDSS to comply with Articles 4 and 5 of the reception used in section 43 of the Act has television directive. The question whether no bearing on the question as to which any use is actually being made of that power Member State is responsible for a television does not, it submits, form part of the broadcaster under the directive. Second, the subject-matter of the present proceedings. national rule fails to ensure that broadcasts from non-member countries, which are intended for general reception in another Member State and also use a frequency allo- cated to the United Kingdom, comply with the law applicable to programmes intended for general reception in the United King- 30. Finally, the Commission claims that sec- dom. Finally, the distinction between DSS tions 44 and 45 of the Broadcasting Act and NDSS constitutes a further breach of 1990 infringe the right to free reception and Article 2(1) of the television directive, which retransmission of television programmes requires each Member State to ensure that all protected by Article 2(2) of the television television broadcasts transmitted by broad- directive in so far as the definition contained casters under its jurisdiction comply with the in section 43 of the Act also covers television law applicable to broadcasts intended for the broadcasters under the jurisdiction of other public in that Member State. Member States. According to the Commis-

33. 'Jurisdiction' is not defined in the direc­ tive itself. N o r can any clear inferences be drawn from the wording of the provisions or from the recitals in the preamble to the tele­ 31. The United Kingdom contends that vision directive. This applies in particular Article 2(2) of the television directive sup­ with regard to the directive's recitals. If one ports the interpretation of Article 2(1) of the considers the 12th, 14th and 15th recitals in directive which it advocates. The national the various language versions, one sees that provisions, it argues, focus on the broadcast­ expressions related to the origin 1 9 or prove­ ing of television programmes in the United nance 2 0 of programmes are mainly used. It Kingdom: Article 2(2) of the directive, how­ must be conceded in favour of the defendant ever, relates to television broadcasts 'from that such expressions are readily compatible other Member States'. with a concept singling out the Member State in which the television broadcasts at issue are in fact first transmitted — whether by terrestrial transmitter, cable or satellite. If, for instance, such transmission takes place in France, this would constitute, in Belgium Interpretation of Article 2(1) of the television and other recipient Member States, 'broad­ directive casts from other Member States', as that expression is used in Article 2(2) of the directive. Contrary to the view taken by the defendant, however, the interpretation advo­ cated by the Commission is also compatible with this language, without it being neces­ sary to confer an artificial or forced meaning to the expressions in question for that pur­ 32. The first indent of Article 2(1) of the pose. To take an example which one of the television directive provides that the orig­ inating Member State responsible for moni­ toring television broadcasts is that Member 19 — Sec the 12th recital: 'Ursprung' (German version). Sec also State under whose 'jurisdiction' the broad­ in the 14th recital: 'Ursprungsmitgliedstaat' (German ver­ caster in question comes. The second indent sion), Originating Member State' (English version), 'État membre d'origine' (French version), 'Estado miembro de of Article 2(1) sets out other connecting cri­ origen' (Spanish version), 'Estado-mcmbro de origem' (Por- tuguese version) and 'Stato membro d'origine' (Italian ver- teria only in case a television producer is not sion). With the exception of the German version, these under the jurisdiction of a Member State. It expressions arc also used in the 15th recital.

34. A comparison of the various language versions, however, also reveals a number of expressions which clearly appear to support the view taken by the United Kingdom. 21 It should, however, be noted that these appear to be exceptions and that there are grounds 36. Nor, in my view, does the draft amend- for doubting whether such expressions prop- ment to the television directive submitted erly reflect the Council's intentions. 22 last year by the Commission 23 enable any conclusions to be drawn. In that draft, the Commission proposes inter alia that the pro- vision here at issue should be amended. The proposed new version expressly refers to the State in which the broadcaster is estab- lished. 24 This draft has not yet been accepted by the Council and is therefore irrelevant to 35. N o r does it necessarily follow from the the interpretation of the law in force. O n the definition of the term 'television broadcast- other hand, one also cannot conclude from ing' in Article 1 of the television directive, to this proposal that the law in force is at vari- which it has attached particular significance ance with it, since one of the grounds of the in its rejoinder, that the view which the proposal says that the need is only 'to clar- United Kingdom expresses is correct. While ify' the existing law. 25 it is true that the concept of 'initial transmis- sion', by which one may understand the actual broadcasting, is central to this defini- 23 — OJ 1995 C 185, p. 4. tion, this does not, in my view, provide 24 — The proposed new version reads as follows: T h e broadcast- any essential information for resolving the ers under the jurisdiction of a Member State are those established in the territory of that Member State, in which they must have a fixed establishment and actually pursue an economic activity' (Article 2(2) under the new numbering). The seventh and ninth recitals in the preamble to the pro- posed directive should be read in conjunction with this. 21 — Thus, the term 'Sendestaat' in the German version of the Those recitals provide that the place of establishment of an 15th recital, the Dutch version of the 12th ('Lid-Staat van undertaking should be 'the principal criterion determining waaruit zij worden uitgezonden'), 14th and 15th recitals ... jurisdiction', and that this may be determined 'by a series ('Lid-Staat van uitzending' in each), and the phrase 'dello of practical criteria', such as 'the location of the head office Stato membro da cui sono emesse' in the Italian version of of the provider of services, the place where decisions on the 12th recital. programming policy are usually taken, the place where the programme to be broadcast to the public is finally mixed 22 — For instance, it is noticeable that the German version of the and processed, provided that a significant proportion of the 14th recital uses what is, in my opinion, the appropriate workforce required for the pursuit of the television broad- term 'Ursprungsmitgliedstaat', whereas there is a reference casting activity is located in the same Member State'. to the 'Sendestaat' in the 15th recital, although all of the other language versions which I have compared show that 25 — See the seventh recital in the preamble to the proposed what is meant here is an (originating) Member State. directive.

Connection with the case-law on the freedom Commission's arguments strike me as being to provide services anything but cogent. In the television directive the Council decided to promote freedom to provide services in the television sector by providing that the programmes of 37. The Commission points out that, a broadcaster should in principle have to according to case-law, television broadcasts comply only with the law of one single are to be regarded as services and the televi­ Member State — the originating Member sion directive has as its purpose to guarantee State. Indeed, it seems obvious to assume the freedom to provide services in this that this Member State should be the one area. 2 6 Article 59 et seq. of the Treaty relate in which the broadcaster in question is to the rights of nationals of Member States established. In my view, however, the who have established themselves in another Council could just as well have decided to Member State as the recipient of those ser­ determine the competent Member State on vices. The Court has also ruled that the the basis of a different criterion — such as scope of Articles 59 and 60 is defined by ref­ that of the place in which the programme is erence to the places of establishment or resi­ first transmitted — if the desired objective of dence of the provider of the services and of ensuring the free provision of services could the person for whom they are intended. 2 7 also be achieved in this way. The Commission concludes from all of this that the term 'jurisdiction' in Article 2(1) of the television directive cannot be construed in a sense which fundamentally differs from that which the Court has given in its case- Whether this was in fact the case remains to law to the concept of 'establishment' in Arti­ be considered. 2 8 As far as the present con­ cles 52, 59 and 60 of the Treaty. Had the text is concerned, it is sufficient to note that Community legislature, in abolishing restric­ the Council was not under any obligation to tions on the freedom to provide broadcasting declare competent that Member State in services, intended to take an approach differ­ which the broadcaster in question is estab­ ent from that taken in other areas, it would, lished. For that reason, the connection the Commission argues, have expressed such between the rules here under consideration an intention by means of specific and precise and the area of the freedom to provide ser­ rules. vices is not in itself sufficient to make the Commission's interpretation of Article 2(1) of the television directive the one necessarily to be followed. 38. I do not find that argument convincing. The reference to Article 52 of the Treaty — as the defendant has correctly noted — is in any event irrelevant, since we are here con­ The scheme of Article 2(1) of the directive cerned with the area of freedom to provide services, not the freedom of establishment protected by Article 52. Also with regard to Articles 59 and 60 of the Treaty, the 39. The Commission's argument based on the scheme of the provision in question is

much more significant. According to the The rule set out in Article 2(1) of the televi- view taken by the United Kingdom, the sion directive seems to me to be clear and competent Member State falls to be deter- unambiguous on this point. There cannot mined according to the place where the ini- therefore be any question of imprecise for- tial transmission (within the meaning of the mulation, as the defendant believes it can definition of 'television broadcasting' set out identify. in Article 1) occurs. In the case of satellite transmission, this means that the competent Member State is that which provides the sat- ellite up-link or authorizes the use of a fre- quency or satellite capacity.

Even if the that reason be unnecessary. It cannot, how- first indent were indeed to relate to terres- ever, be assumed that the Community legis- trial transmission of television programmes, lature includes superfluous provisions in its as the defendant presumes, the fact still legal measures. remains that the concept of 'jurisdiction' is employed in both indents. The United King- dom's objection would have substance only if this concept had a different meaning in each of the indents.

How- broadcasters which are not under the juris- ever, that still does not settle the question diction of any Member State. From this it whether the Commission is correct in its necessarily follows that the 'jurisdiction' view that the Member State under whose mentioned in the first indent cannot conse- jurisdiction a broadcaster comes is the quently be based on the factors mentioned in Member State in which that broadcaster is the second indent. established.

It further refers to the grounds which it sub­ mitted in support of that draft. 3 0 These con­ 45. If this view is well founded, the Com­ tain, inter alia, the following comments on mission would indeed be able to derive from the provision just cited: the history of the television directive's gene­ sis a strong argument in support of its inter­ pretation of Article 2(1). As the Commission correctly argues, the recitals in the preamble to the directive contain formulations that focus on the origin or provenance of the 32 programmes in question. These formula­ '43. This article establishes the principle that tions could be regarded as proof that the leg­ all broadcasting activity intended for recep­ islature intended to retain the content of tion within the territory of the Community Article 1(1) as set out in the draft proposed must comply with the law of the country in by the Commission. From the documents which it originates, i.e. the Member State in which the Commission has submitted, it which the originating body is established ... would then be possible, contrary to the

29 — OJ 1986 C 179, p. 4. 31 — Loc. cit. (footnote 30), pp. 12 and 13. 30 — Bulletin of the EC, Supplement 5/86, p. 5 et seq. 32 — Sec point 33 above.

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opinion expressed by the defendant, to con- and with that expressed by the United King- clude not only that the view of the Commis- dom. 34 The fact that the Commission, in the sion remained unchanged, but also that the grounds which it submitted with the pro- Council adopted that view. posal, interpreted that expression in a partic- ular way cannot therefore be binding on the Court when it makes its own interpretation.

33 — It should be remembered that the draft originally submitted by the Commission concerned not only television but also radio. 34 — Sec point 33 above.

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The Council of Europe Convention Commission will adapt the proposal in the light of the Council of Europe Conven­ tion.'

48. Both the Commission and the United Kingdom invoke, in support of their respec­ tive views on the question here at issue, the Since it is not clear from the television direc­ abovementioned Convention of the Council tive that it intended to be in conflict with the of Europe on Transfrontier Television. Convention in the area at present under dis­ cussion, Article 2(1) thereof, it is claimed, can and ought to be interpreted in the same way as the corresponding provision in the Convention. Article 5(2) of the Convention, however, focuses primarily on the State from 49. The defendant points out that this Con­ which a programme is broadcast. vention, to which all the Member States are signatories, was adopted only a few months prior to the television directive and that the latter refers expressly to the Convention. While the Community is not itself a party to the Convention and is not directly bound by 50. Those submissions are unconvincing. I it, it would be nonsensical to assume that the incline rather to the view of the Commission Community intended to regulate the partic­ that the rules set out in that Convention pro­ ular sector in a manner radically different vide cogent arguments in support of the from the solution adopted by the Member Commission's views on the interpretation of States in the Council of Europe Convention. Article 2(1) of the television directive. Otherwise, the Member States would be forced either to breach their Community- law obligations or to infringe the Conven­ tion.

broadcaster corresponds in large measure to The primary criterion under the Convention the criterion of establishment which, accord- thus corresponds to the alternative criterion ing to the Commission, is laid down in the under the directive. It would thus appear first indent of Article 2(1) of the television very reasonable to suppose that the alterna- directive. tive criterion under the Convention likewise corresponds to the primary criterion under the directive. This view is also supported by the fact that apart from the criterion of establishment and seat respectively there is no obvious further objective criterion to which competence might meaningfully be As already mentioned, the first indent of that attached. It follows that the Member State provision in the directive declares compe- mentioned in Article 2(1) of the directive as tence to be vested in that Member. State having jurisdiction over a broadcaster must under whose jurisdiction the broadcaster indeed be intended to be the Member State comes. The second indent declares the crite- in which that broadcaster is established. ria of the use of frequency, satellite capacity or up-link of a Member State to be determi- nant only in the cases where the broadcaster in question does not come under the juris- diction of any Member State. The Conven- tion, in contrast, focuses primarily on these criteria in the case of programme transmis- sion by satellite. It is only where these crite- ria do not make it possible to determine 53. In my view, this also finds confirmation jurisdiction that Article 5(2)(b)(iii) focuses in in the submissions of the United Kingdom the alternative on the seat of the broadcaster. itself. In its rejoinder, the defendant in fact stated that it did not see any difficulty in treating the criterion of seat or establishment as a residual basis for the jurisdiction of a State under both the Convention and the directive. The defendant accordingly accepts that this is a relevant criterion also in the 52. These fundamental differences still exist context of the television directive. Were one even if a comparison is only drawn between to go along with this view, it would however the second indent of Article 2(1) of the be necessary to assume that this criterion is directive and the provisions in Article 5(2)(b) nowhere mentioned expressly in the direc- of the Convention. Examination of these dif- tive, since the criterion of 'jurisdiction' men- ferences will demonstrate that the directive tioned in the first indent in Article 2(1) is primarily declares that Member State to be intended to have a different content. The competent under whose jurisdiction the defendant, however, was not in a position to broadcaster comes. In the alternative, the reply satisfactorily to the question as to what focus falls on the Member State from which other content this criterion might have. the broadcasts are transmitted. The Conven- Indeed, a meaningful interpretation can be tion primarily declares that State to be com- made only if one shares the Commission's petent from which broadcasts are transmit- assumption that the Member State in which a ted. In the alternative, the focus falls on the broadcaster is established has jurisdiction State in which the broadcaster has its seat. over the latter.

54. As the defendant has itself emphasized, instance, Article 16 of the Convention the television directive was adopted only a ('Advertising directed specifically at a single few months after the Council of Europe Party') would have been inappropriate in Convention. It is also clear that the Commu rules serving to bring about the Internal nity legislature took account of this Conven Market. 36 tion when adopting the directive. As the parties to the present case have noted in agreement, the draft directive was not, how ever, amended on the point here at issue with a view to bringing it into line with the rules adopted in the Convention. 37 The only con clusion to be drawn from Article 2(1) of the directive is therefore that the Community 56. These differences between the television legislature consciously decided in favour of a directive and the Council of Europe Con rule which departs appreciably from that laid vention also do not in any way give rise to down in the Council of Europe Convention. the negative consequences claimed by the United Kingdom. Potential conflict between these two legal measures is in any event excluded by virtue of the fact that Article 27(1) of the Convention expressly permits

facilitate . . . the transfrontier transmission and the retransmission of television programme 40 services'. The Commission has correctly pointed out that a provision such as, for All of the arguments which the defendant bases on the Convention suffer from the fact that they either fail completely to take 36 — See point 49 above. account of Article 27(1) of the Convention 37 — As we have already seen, the amendment to the wording of the provision in question, already discussed, has nothing to or — contrary to its clear wording — do with the Convention (sec point 45 above). attempt to interpret it restrictively by seek 38 — See the second recital in the preamble to the television directive. ing to confine its application to those cases 39 — See the 12th recital in the preamble to Council Directive in which a provision in the directive clearly 93/83/EEC of 27 September 1993 on the coordination of certain rules concerning copyright and rights related to deviates from a rule set out in the Conven copyright applicable to satellite broadcasting and cable retransmission (OJ 1993 L 248, p. 15).

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57. For that reason I take the view that the of one single Member State. 41 The criterion first indent of Article 2(1) of the television applicable within the context of Article 2(1) directive must be interpreted as meaning that of the directive must for that reason be such the Member State under whose jurisdiction a as to make it possible unambiguously to broadcaster comes is the Member State in determine the competent Member State. It is which that broadcaster is established. equally evident that this criterion must be uniformly applied by all Member States.

The Commission complains in particular in this regard that the application of two mutu- ally contradictory criteria for determining 61. One ought not to overlook the fact that the competent Member State would give rise the interpretation advocated by the Commis- to conflicts and lacunae. It argues that the sion may lead to difficulties. The Commis- criterion favoured by the United Kingdom sion also openly accepted this during the oral would also even result in legal uncertainty if procedure. One example should be sufficient it were applied by all Member States. to illustrate the point. The Zweites Deutsche Fernsehen (the second German television channel) (hereinafter 'ZDF'), for instance, has its seat in Germany. However, it also has offices outside Germany, such as — if I am not wrong — in Paris. There can scarcely be 59. As has already been mentioned, the tele- vision directive is based on the idea that the television programmes to which it applies should in principle be subject only to the law 41 — See point 26 above.

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With regard to the problem of associated undertakings, the Commission has expressed I myself am in no doubt that meaningful and the view that the central issue is whether appropriate results can be achieved on this these are or are not 'recognizably different' basis. Indeed, it seems appropriate to declare television broadcasters. It attempted to clar­ responsible for a television broadcaster that ify this by alluding to the Canal Plus Group. Member State on whose territory that broad­ The parent company, Canal Plus, established caster performs its essential activities. These in France, operates there as a television include in particular — as formulated in the broadcaster and is under the jurisdiction of Commission's abovementioned proposal for

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a directive 42 — the decision on programme 65. Account, however, needs to be taken of policy and the mixing and processing of the the fact that this criterion also has serious programme to be transmitted. Even if a drawbacks. The specific examples mentioned broadcaster has establishments in more than by the Commission in this connection one Member State, it will probably always be emphatically demonstrate this. possible to determine one Member State which, on the basis of these considerations, ought to be responsible for that broadcaster.

64. In contrast, the criterion advocated by Although it does not dispute this, the United the United Kingdom, according to which the Kingdom expresses the view that this is com- focus should fall on the Member State from patible with the television directive. Regard- which a broadcast is actually transmitted, ing the first case, it argues that a particular certainly has the prima facie advantage of transmission can only be subject to the con- being more easily manageable. A legal assess- trol of a single Member State. With regard to ment or even balancing is scarcely necessary the second case, the United Kingdom con- in order to determine whether a broadcaster tends that if the view taken by the Commis- has used the frequency, satellite capacity or sion were to be accepted, it would be diffi- up-link of one Member State or of another cult to determine which Member State had Member State. This consideration certainly sole responsibility. In contrast, the criterion argues in favour of giving preference to the which it advocates constitutes a clear basis criterion which the defendant advocates. for the allocation of responsibility.

42 — See footnotes 23 and 24. 44 — For example, a broadcaster might broadcast one part of its 43 — According to the information given by the Commission programmes (such as morning programmes) from one during the oral procedure, Finland is the only Member Member State and the other part (for instance, the evening State in which this is not the case. programmes) from another Member State.

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69. The defendant acknowledges that its view, in order to avoid duplication of con­ 71. Finally, it is necessary to consider the trol, must proceed on the basis of an 'implied defendant's objection that the Commission's concept' of a 'primary point of transmission'. favoured criterion creates a danger of abuse. This, it contends, is in no way a new con­ If the focus were to fall on the place of cept. Under it, precedence is accorded to the establishment, it is argued, a broadcaster place from which the terrestrial transmission would need only to transfer its establishment is effected. If there is no such transmission, a to another Member State in order to avoid solution must be sought on the basis of application of a particular Member State's international agreements. provisions.

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O P I N I O N O F MR L E N Z — CASE C-222/94

45 — See point 62 above. 46 — Case C-23/93 TV10 v Commissariaat voor de Media [1994] 49 — Case C-327/93 has in any event been removed from the ECR I-4795. register by order of 29 March 1996 of the President of the 47 — Opinion delivered on 16 June 1994, [1994] ECR I-4797. Court following the national court's withdrawal of the 48 — Point 72 et seq. questions which it had submitted.

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COMMISSION ν UNITED KINGDOM

77. The Commission first of all complains that section 43 of the Broadcasting Act

I accordingly take the view that it is not nec­ 50 — Sec point 15 above. essary further to examine this complaint of 51 — Sec point 28 et seq. above. the Commission.

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OPINION OF MR LENZ — CASE C-222/94

79. Second, the Commission accuses the 81. However, it is also not entirely clear in defendant of having failed to ensure that this regard what the scope of this complaint programmes from non-member countries is. The Commission complains in particular that are intended for general reception in that section 44(3) of the Broadcasting Act another Member State and in that regard use 1990 declares applicable the provisions of a frequency allocated to the United King- section 16(2)(g) and (h), whereas section 45, dom comply with the law applicable to pro- applicable to NDSS, does not do so. Since grammes intended for general reception in the provisions contained in section 16(2)(g) the United Kingdom. and (h) are designed to implement Articles 4 and 5 of the television directive, the com- plaint raised by the Commission may be understood as meaning that the defendant is being accused of having failed to ensure that NDSS comply with the requirements laid down in Articles 4 and 5 of the directive. The defendant argues that this is a hypothet- This is also the complaint which the French ical case and that it cannot be assumed that Republic has set out as the central point of the United Kingdom would allow a broad- its submissions. caster from a non-member country to use such a frequency without exercising control. That, however, does not disprove the Com- mission's complaint. Rather, the defendant is thereby indirectly conceding that such a case might be possible. Even though it may involve an improbable case, the Commis- sion's complaint therefore appears to me to 82. However, both the Commission and the be well founded. United Kingdom have concurred in declar- ing that the question whether the United Kingdom has met its obligations under Arti- cles 4 and 5 of the television directive with regard to NDSS is the subject-matter of sep- arate proceedings.

84. There can in my view be scarcely any Articles 4 and 5 of the directive. That, how­ doubt that this complaint is well founded. ever, does not alter the fact that the national The United Kingdom does not deny that provisions draw a distinction between NDSS are subject to a less stringent scheme broadcasters that are subject to those provi­ than are DSS. In justification, however, it sions of the directive and broadcasters that relies on Article 3(1) of the television direc­ may become subject to those provisions. In tive, which provides that Member States my opinion, this formal discrimination is in may, with regard to television broadcasters itself contrary to Articles 2(1) and 3(2) of the under their jurisdiction, lay down 'more television directive and the Commission's detailed or stricter rules in the areas covered complaint is consequently well founded. by this Directive'. These stricter rules, it argues, need not be applied to all pro­ grammes.

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OPINION OF MR LENZ — CASE C-222/94

43 of the Act, the United Kingdom claims to The defendant has acknowledged that the be responsible for all television broadcasters provisions in question (sections 46 and 47) of which transmit their programmes from the the Broadcasting Act 1990 could in theory United Kingdom. This also covers broad- be used to make the retransmission of com- casters established in another Member State plete cable television services from other and consequently under the jurisdiction of Member States subject to a licensing obliga- that Member State. 52 By so doing, the tion. However, the defendant states that the United Kingdom is exercising a second con- ITC, mindful of the United Kingdom's obli- trol, contrary to Article 2(2) of the television gations under the television directive, has in directive. practice not made any use of this possibility. Section 188 of the Act, moreover, provides the wherewithal to force it, if necessary, to act in a manner compatible with the direc- tive.

88. It might be pointed out once again that the wording of that provision does not pre- 90. To that extent also, then, it must be held clude the interpretation here being advo- that, under the wording of the national Act, cated. 53 The United Kingdom is thus wrong a breach of Article 2(2) of the television to argue that programmes of broadcasters directive is possible and special administra- which are established in other Member States tive measures are required in order to but transmit their programmes from the exclude this possibility. In that regard also, United Kingdom are not 'television broad- therefore, the Commission's complaint casts from other Member States'. appears to me to be well founded.

and

(b) by exercising control over broadcasts which are transmitted by a broadcaster that falls under the jurisdiction of another Member State when those broad­ casts are transmitted by a non-domestic satellite service or conveyed to the public as a licensable programme service,

the United Kingdom has failed to fulfil its obligations under Article 2(1) and (2) and Article 3(2) of Council Directive 89/552/EEC of 3 October 1989 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities.

I also propose that the United Kingdom should be ordered to pay the costs of the proceedings, with the exception of the costs incurred by the French Republic, which should pay its own costs.

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