C-14/96

* Original language: German. 1 — OJ 1989 L 298, p. 23. (a) a television broadcast coming from 2 — Case C-222/94 Commission v United Kingdom [1996] ECR another Member State manifestly, seri­ I-4025. 3 — Case C-11/95 Commission v Belgium [1996] ECR I-4115. ously and gravely infringes Article 22;

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(b) during the previous 12 months, the States other than Member States, and which broadcaster has infringed the same pro­ are not received directly or indirectly in one vision on at least two prior occasions; or more Member States.'

(c) the Member State concerned has notified the broadcaster and the Commission in writing of the alleged infringements and 3. Article 3(2) of the Directive provides that of its intention to restrict retransmission the Member States shall 'by appropriate should any such infringement occur means, ensure within the framework of their again; legislation, that television broadcasters under their jurisdiction comply with the provisions of this Directive'.

7. The American Turner Group, a major concern on the United States television mar­ ket, has a subsidiary in the United Kingdom, Turner Entertainment Network International Limited, which has its seat in London. This company owns all the shares in two other companies — The Cartoon Network Lim­ ited and Turner Network Television Limited. Both have their seats in the United Kingdom and broadcast television programmes. Those Article 5 of the Directive requires the Mem­ programmes are 'TNT' and 'Cartoon Net­ ber States to ensure 'where practicable and work'. The marketing of these programmes by appropriate means' that broadcasters is undertaken by yet another company reserve at least 10% of their transmission belonging to the Turner Group, Turner time or 10% of their programming budget International Network Sales Limited, which for European works created by producers also has its seat in London. The United who are independent of broadcasters. Kingdom authorities approved the broad­ casting of those programmes and issued non- 7 domestic satellite service licences for them. The programmes are transmitted via satellite. For this purpose, the undertakings con­ cerned use satellite transmission capacity assigned to the Grand Duchy of Luxem­ bourg.

6. Article 22 of the Directive deals with the protection of minors. Member States have to ensure that television broadcasts by broad­ casters under their jurisdiction do not include programmes 'which might seriously The Belgian Government takes the view that impair the physical, mental or moral deve­ the programmes do not meet the require­ lopment of minors, in particular those that ments of Articles 4 and 5 of the Directive. involve pornography or gratuitous violence'.

9. According to the court which has made 12. That order of 29 November 1994 was set the reference, there was no legislation at that aside by judgment of 6 April 1995 of the time governing cable television in the City of Cour d'Appel, Brussels, but the third-party Brussels area. This gap was filled by a Royal proceedings were declared admissible. Decree of 16 September 1993, which, accord­ Amending the challenged order, the Cour ing to the national court, was designed to d'Appel found the proceedings brought by stop 'certain television channels' which the Belgian State unfounded. By order of 1 intended to take advantage of the legal December 1995, this Court then removed the vacuum. On the basis of that decree, two reference for a preliminary ruling in Case (federal) Belgian ministers, by a Decree of 17 C-316/94 from the register. September 1993, prohibited Coditel from distributing the television programmes 'TNT' and 'Cartoon Network' over its cable network in the City of Brussels area.

(1) What conditions have to be met for a B — Assessment television broadcaster to be regarded as coming under the jurisdiction of a Mem­ ber State within the meaning of Article 2(1) of Council Directive 89/552/EEC of 3 October 1989? To what extent is it rel­ evant that a large, but variable, propor­ tion of the material which it broadcasts The first preliminary question is of non-European origin if the national court also finds that the body in ques­ tion is based in the territory of the Mem­ ber State in question and that the actual activities of programme management, composition and assembly are carried out there? 15. By its first question the national court wishes to know first of all which conditions have to be met in order for a television broadcaster to come under the 'jurisdiction' of a Member State for the purposes of Article 2(1) of the Directive. So, more pre­ cisely, the question is concerned with the interpretation of the first indent of that pro­ (2) Assuming that broadcasts emanating vision. from a television broadcaster authorized by a Member State are not to be regarded as broadcasts transmitted by a broadcaster under the jurisdiction of a Member State within the meaning of Directive 89/552/EEC, is another Mem­ ber State entitled — and, if so, on what conditions, regard being had in particu­ 16. The Court has already had to address lar to Article 59 et seq. of the Treaty — this question in its judgment in Case to prohibit or restrict their retransmis­ C-222/94 Commission v United Kingdom. In sion in a particular area? that judgment it came to the conclusion that

the Member State under which a television 19. The parties to these proceedings have, in broadcaster comes is the Member State in so far as they have addressed this question, which the broadcaster is established. 8 expressed the same view. According to Mr Denuit, the actual seat should be the cri­ terion, that is to say the place at which the management and essential part of the activi­ ties are established. In this particular case, the actual seat is in the United Kingdom. The Belgian Government takes the same 17. According to the case-law of the Court, basic view but reaches a completely different the term 'establishment' within the meaning conclusion. It considers that in the present of the Treaty involves 'the actual pursuit of case the actual seat is in the United States an economic activity through a fixed estab­ where control and responsibility for pro­ lishment in another Member State for an 9 grammes is assumed. The seat in the United indefinite period'. Kingdom is merely formal; no significant part of Turner's staff are employer there. The French Government has stated that determi­ nation of the Member State having jurisdic­ tion must be done in each individual case on the basis of a number of factors in which it 18. In its judgment in Case C-222/94 Com- includes control of programming, the seat of mission v United Kingdom the Court admit­ the undertaking and the proportion of staff ted that application of the criterion of estab­ engaged in broadcasting activities in the rel­ lishment could lead to difficulties. These evant Member State. The Greek Government difficulties can arise from the fact that a tele­ seems to want the criterion to be the main, vision broadcaster may have more than one actual seat of the television broadcaster. 10 establishment in the Community. How­ ever, these difficulties can be overcome. As the Court held in the aforementioned judg­ ment, the Commission had explained in that case that the Member States could find a solution to these problems 'by interpreting the criterion of establishment as referring to the place in which a broadcaster has the centre of its activities, in particular the place 20. However, in my view, those questions where decisions concerning programme do not need to be examined more closely in policy are taken and the programmes to be 12 the present case. As I have already men­ broadcast are finally put together'. The tioned, those questions arise only in the Court went on to observe that the United event that a television broadcaster is estab­ Kingdom, as the defendant, had not contra­ lished in more than one Member State. By all dicted that statement. 11 appearances, this is not the case here. Only then does the question arise whether a par­ ticular establishment, in the light of the 8 — Cited above in footnote 2, paragraphs 42, 51 and 61. aforementioned criteria, give a Member State 9 — Case C-221/89 Factortame [1991] ECR I-3905, paragraph 20; see also Case C-55/94 Gebhard [1995] ECR I-4165, paragraph 25. 10 — On this point, see my Opinion in Case C-222/94 [1996] ECR I-4025, paragraph 60 et seq. 12 — They do, however, form the focal point of Case C-56/96 11 — Case C-222/94, cited in footnote 2 above, paragraph 58. (VT 4) in which I shall also give my Opinion today.

21. At the hearing the Belgian Government observed that the Court of Justice had held to be contrary to Community law the legis­ lation in force in the United Kingdom con­ 23. That argument must be rejected. A cerning jurisdiction over broadcasters on the Member State's jurisdiction, for the purposes ground that it was not based on the criterion of Article 2(1) of the Directive, does not of establishment. The Belgian Government depend on the nature of the programmes concludes from this that licences granted on broadcast. The only decisive point is whether the basis of this legislation are also vitiated in a television broadcaster comes under the law, so that there can be no question of the jurisdiction of a Member State or whether, broadcasters in question in this case coming if this is not the case, it fulfils one of the

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technical criteria set out in the second indent Member State (so that it would not be cov­ of that provision. The fact that the pro­ ered by the first indent of Article 2(1)) and if grammes broadcast by a television broad­ it did not use a frequency or satellite capac­ caster may not be in conformity with ity granted by that Member State or an Articles 4 and 5 of the Directive has no bear­ up-link situated in that Member State (so ing on the allocation of jurisdiction under that it would not be covered by the second Article 2(1). This is the view taken by all the indent of Article 2(1)). This therefore other parties to the proceedings. appears to be a situation which in practice never occurs.

24. The answer to the first question must therefore be that a television broadcaster comes under the jurisdiction of the Member State in which it is established. The origin of the programmes which it broadcasts is irrel­ 26. Moreover, Mr Denuit has rightly evant in determining the Member State pointed out that such a case could hardly which has jurisdiction over it pursuant to the entail a factual intra-Community situation Directive. requiring the application of Community law.

29. By this third question, the national court 31. It is true that Article 2(2) of the Direc­ seeks to ascertain whether a Member State tive limits the scope of the obligations which must, under Article 2(2) of the Directive, it imposes only to reasons 'which fall within ensure free reception of broadcasts from the fields coordinated by this Directive'. other Member States and not impede However, the matters dealt with in Articles 4 retransmission of such broadcasts even if and 5 of the Directive are, precisely, fields they do not comply with the requirements coordinated by the Directive. laid down in Articles 4 and 5 of the Direc­ tive.

33. As the Court has found, in such a situa­ I took the same position in my Opinion in tion a Member State is not allowed to take Case C-11/95 Commission v Belgium. How­ the law into its own hands. In such cases it ever, in that case, I clearly indicated that that cannot therefore take unilateral measures to case-law is, in my view, applicable only if the counter any failure by other Member States television broadcaster concerned acts abu- to comply with the provisions of the Direc­ sively and that it calls for a restrictive inter­ 19 tive. However, it is entitled to bring an pretation. In the present case, there is action against that Member State pursuant to nothing to indicate such an abuse. The Bel­ Article 170 of the Treaty. It may also ask the gian Government's argument that failure to Commission to take action itself against the comply with Articles 4 and 5 of the Direc­ Member State pursuant to Article 169 of the tive constitutes in itself such an abuse must, 16 Treaty. in my view, be rejected. Following that argu­ ment would in fact allow secondary control by the State of reception, which is incompat­ ible with the scheme of the Directive.

34. In the judgment given in Case C-11/95 Commission v Belgium the Court did not determine the question whether 'in the light of Directive 89/552, a Member State is still entitled, on the basis of Article 59 of the Treaty to take measures to prevent a person Therefore, there is no need to examine this providing services whose activity is entirely question in any further detail in the or principally directed towards its territory 20 present case. from exercising the freedoms guaranteed by the Treaty for the purpose of avoiding the rules which would be applicable to him if he 17 were established in that State'. In effect, that question is whether the case-law of the Court, confirmed most recently in the TV 10 18 case in 1994, is still applicable after the entry into force of the Directive.

(1) Article 2(1) of Council Directive 89/552/EEC of 3 October 1989 on the coor­ dination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities is to be interpreted as meaning that a television broadcaster comes under the jurisdiction of the Member State in which it is established. The ori­ gin of the programmes which it broadcasts is irrelevant in determining the Member State which has jurisdiction over it under the Directive.

(2) Article 2(2) of the Directive is to be interpreted as meaning that a Member State must ensure free reception of television broadcasts from other Member States and must not impede retransmission of those broadcasts even if they do not comply with Articles 4 and 5 of the Directive.

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