Case C-250/06

United Pan-Europe Communications Belgium SA and Others

v

État belge

(Reference for a preliminary ruling from the Conseil d’État (Belgium))

(Article 49 EC – Freedom to provide services – National legislation requiring cable operators to broadcast programmes transmitted by certain private broadcasters (‘must carry’) – Restriction – Overriding reason relating to the general interest – Maintenance of pluralism in a bilingual region)

Opinion of Advocate General Poiares Maduro delivered on 25 October 2007

Judgment of the Court (Third Chamber), 13 December 2007

Summary of the Judgment

1. Preliminary rulings – Admissibility – Need to provide the Court with sufficient explanation of the factual and legislative context – Scope of the obligation in the area of competition

(Art. 234 EC)

2. Freedom to provide services – Restrictions

(Art. 49 EC)

1. For the Court of Justice to be in a position to give helpful answers to the questions referred to it, it is necessary for the national court to define the factual and legislative context of the questions it asks or, at the very least, to explain the factual circumstances on which those questions are based.

That need for precision with regard to the factual and legislative context applies in particular in the area of competition, which is characterised by complex factual and legal situations.

With regard to the factual context of questions referred on the interpretation of Articles 82 EC and 86 EC, the Court of Justice must have all the factual and legal information necessary for it to determine whether the conditions relating to the existence of a dominant position or of abusive conduct for the purposes of Article 82 EC are satisfied, particularly concerning the relevant market and the way in which the bodies in question hold an individual or collective dominant position.

(see paras 19-21)

2. Article 49 EC is to be interpreted as not precluding legislation of a Member State which, by virtue of a ‘must-carry’ obligation, requires cable operators providing services on the relevant territory of that State to broadcast television programmes transmitted by private broadcasters falling under the public powers of that State and designated by the latter, where such legislation:

– pursues an aim in the general interest, such as the retention, pursuant to the cultural policy of that Member State, of the pluralist character of the television programmes available in that territory, and

– is not disproportionate in relation to that objective, which means that the manner in which it is applied must be subject to a transparent procedure based on objective non-discriminatory criteria known in advance.

In particular, each broadcaster must be able to determine in advance the nature and scope of the precise conditions to be satisfied and, where relevant, the public service obligations it is required to observe if it is to apply for ‘must carry’ status. In that regard, the mere setting out, in the statement of reasons for the national legislation, of declarations of principle and general policy objectives cannot be considered sufficient.

Next, the award of must-carry status must be based on objective criteria which are suitable for securing pluralism by allowing, where appropriate, by way of public service obligations, access inter alia to national and local news on the territory in question. Thus, such status should not automatically be awarded to all television channels transmitted by a private broadcaster, but must be strictly limited to those channels having an overall content which is appropriate for the purpose of attaining such an objective. In addition, the number of channels reserved to private broadcasters having that status must not manifestly exceed what is necessary in order to attain that objective.

Lastly, the award of ‘must carry’ status must not, either in law or in fact, be subject to a requirement of establishment on the national territory. Furthermore, even where the requirements laid down for the award of must-carry status apply without discrimination, in so far as those requirements are capable of being more easily satisfied by broadcasters established on the national territory by reason, in particular, of the content of the programmes to be transmitted, they must be essential for the attainment of the legitimate objective in the general interest which is being pursued.

It is for the national court to determine whether those conditions are satisfied.

(see paras 46-52, operative part)

JUDGMENT OF THE COURT (Third Chamber)

13 December 2007 ( * )

(Article 49 EC – Freedom to provide services – National legislation requiring cable operators to broadcast programmes transmitted by certain private broadcasters (‘must carry’) – Restriction – Overriding reason relating to the general interest – Maintenance of pluralism in a bilingual region)

In Case C‑250/06,

REFERENCE for a preliminary ruling under Article 234 EC by the Conseil d'État (Belgium), made by decision of 17 May 2006, received at the Court on 6 June 2006, in the proceedings

United Pan-Europe Communications Belgium SA,

Coditel Brabant SPRL,

Société Intercommunale pour la Diffusion de la Télévision (Brutélé),

Wolu TV ASBL

v

État belge,

intervening parties:

BeTV SA,

Tvi SA,

Télé Bruxelles ASBL,

Belgian Business Television SA,

Media ad Infinitum SA,

TV5-Monde,

THE COURT (Third Chamber),

composed of A. Rosas, President of the Chamber, U. Lõhmus, J.N. Cunha Rodrigues, A. Ó Caoimh (Rapporteur) and A. Arabadjiev, Judges,

Advocate General: M. Poiares Maduro,

Registrar: B. Fülöp, Administrator,

having regard to the written procedure and further to the hearing on 18 April 2007,

after considering the observations submitted on behalf of:

– United Pan-Europe Communications Belgium SA, Coditel Brabant SPRL and Wolu TV ASBL, by F. de Visscher and E. Cornu, avocats,

– Belgian Business Television SA, by F. Van Elsen, avocat,

– TV5-Monde and Media ad Infinitum SA, by A. Berenboom and A. Joachimowicz, avocats,

– Télé Bruxelles ASBL, by C. Doutrelepont and V. Chapoulaud, avocats,

– the Belgian Government, by A. Hubert, acting as Agent, and by A. Berenboom and A. Joachimowicz, avocats,

– the Austrian Government, by C. Pesendorfer, acting as Agent,

– the Portuguese Government, by L. Fernandes and J. Marques Lopes, acting as Agents,

– the United Kingdom Government, by T. Harris, acting as Agent, and by G. Peretz, Barrister,

– the Commission of the European Communities, by F. Arbault and M. Shotter, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 25 October 2007

gives the following

Judgment

1 This reference for a preliminary ruling relates to the interpretation of Articles 49 EC and 86 EC, the latter being read in conjunction in particular with Article 82 EC.

2 The reference has been made in the course of proceedings brought by United Pan-Europe Communications Belgium SA (‘UPC’), Coditel Brabant SPRL, Société Intercommunale pour la Diffusion de la Télévision (Brutélé) and Wolu TV ASBL against État belge relating to the obligation imposed on them by the latter to broadcast, in the bilingual region of Brussels-Capital, television programmes transmitted by certain private broadcasters designated by the authorities of that State.

National legislation

3 Article 13 of the Law of 30 March 1995 concerning the distribution networks for broadcasting and the exercise of broadcasting activities in the bilingual region of Brussels-Capital ( Moniteur belge of 22 February 1996, p. 3797) (‘the Law of 1995’) states:

‘Cable operators who have a permit to operate a distribution network for broadcasts in the bilingual region of Brussels-Capital must transmit simultaneously and in their entirety the following television programmes:

– television programmes broadcast by the public service broadcasters falling under the powers of the French Community and those falling under the powers of the Flemish Community;

– television programmes broadcast by any other broadcasters of the French or Flemish Communities, as designated by the competent minister.’

4 That legislative provision was implemented by Ministerial Order of 17 January 2001 concerning the designation of the broadcasters referred to in the second indent of Article 13 of the Law of 30 March 1995 concerning the distribution networks for broadcasting and the exercise of broadcasting activities in the bilingual region of Brussels-Capital ( Moniteur belge of 2 February 2001, p. 2781) (‘the Order of 17 January 2001’), which is worded as follows:

‘…

Whereas the must-carry regime is part of an audiovisual policy designed to enable television viewers to have access to both public service broadcasters and private broadcasters which assume public service obligations;

Whereas the aim of the must-carry regime is to safeguard the pluralistic and cultural range of programmes available on television distribution networks and to ensure that all television viewers have access to that pluralism;

Whereas this regime is unquestionably justified in the public interest;

Whereas the choice of private stations enjoying must-carry status has been made in the interest of harmonising the audiovisual landscape in Belgium;

Whereas the French Community and the Flemish Community have been consulted;

Whereas must-carry status should be granted to designated broadcasting organisations in return for significant obligations being imposed and to which they have agreed;

Whereas certain designated broadcasting organisations are entrusted with a public service task;

Whereas must-carry status must be conferred on asbl Télé Bruxelles [‘Télé Bruxelles’] and vzw TV Brussel with a view to promoting the development of local television, broadcasting local news aimed at the local public;

Whereas the consequence of withdrawing must-carry status would be to jeopardise the very existence of those television broadcasting organisations which could not bear the high costs of distribution,

It is hereby ordered:

Article 1

A distributor which is authorised to operate a television distribution network in the bilingual region of Brussels-Capital is required to transmit, simultaneously and in their entirety, the television programmes of the following broadcasters:

1. Vlaamse Media Maatschappij n.v.

2. TV Brussel v.z.w.

3. Belgian business television n.v.

4. Media ad infinitum n.v.

5. TVi s.a.

6. [Télé Bruxelles]

7. Canal+ Belgique s.a. [since renamed BeTV SA]

8. Satellimages s.a.[since renamed TV5-Monde SA (‘TV5-Monde’)]

…’

5 The Ministerial Order of 24 January 2002 amending the Ministerial Order of 17 January 2001 designating the broadcasters referred to in the second indent of Article 13 of the Law of 30 March 1995 concerning the distribution networks for broadcasting and the exercise of broadcasting activities in the bilingual region of Brussels-Capital ( Moniteur belge of 16 February 2002, p. 6066) (‘the Order of 24 January 2002’) added the following to Article 1 of the Order of 17 January 2001:

‘9. Event TV Vlaanderen n.v.

10. YTV s.a.’

The main proceedings and the questions referred for a preliminary ruling

6 The applicants in the main proceedings broadcast, through their cable networks, the programmes of a number of broadcasters, particularly in the bilingual region of Brussels-Capital. The order for reference states that, through that medium, forty or so channels are available in analogue mode.

7 On 2 April 2001, those cable operators each separately brought an action before the Conseil d’État seeking the annulment of the Order of 17 January 2001. Subsequently, on 17 April 2002, they brought a joint application before the same court for the annulment of the Order of 24 January 2002.

8 By judgment of 17 May 2006, the Conseil d’État, which had joined those separate applications, dismissed the actions brought by Société Intercommunale pour la Diffusion de Télévision (Brutélé) as inadmissible on purely formal grounds. As regards the actions brought by the other three cable operators, the national court rejected the majority of their claims. However, it annulled the Order of 17 January 2001 in so far as it provided for the grant of must-carry status to TV5-Monde, on the ground that the latter, which is a company incorporated under French law established in France, appeared to be an international Francophone channel which, although an institution falling under the powers of the French Community holds a limited number of shares in it, was too remotely connected with that Community for it to be treated as ‘falling under the powers of’ that Community for the purposes of Article 13 of the Law of 1995, and, moreover, that there was nothing to indicate that TV5-Monde had undertaken commitments in regard to that Community in return for the benefit of the must-carry obligation.

9 As to the remainder, the Conseil d’État has determined that the proceedings before it require the interpretation of Community law.

10 Firstly, the cable operators in question argue that the contested measures grant private broadcasters with must-carry status a special right which, in breach of Articles 3(1)(g) EC and 10 EC, as well as Articles 82 EC and 86 EC, is liable to distort competition between broadcasters and to disadvantage broadcasters established in Member States other than the Kingdom of Belgium, while BeTV SA occupies a dominant position in French-speaking Belgium on the market for pay-TV. The national court considers in that regard that the concept of ‘special right’ within the meaning of Article 86 EC has not been defined by the Court.

11 Secondly, those cable operators argue that the contested measures constitute an unjustified restriction, in breach of Articles 3(1)(g) EC, 49 EC and 86 EC, on freedom to provide services by restricting the number of channels available and making them more costly, while the private broadcasters having must-carry status benefit from the obligation to broadcast imposed on the cable operators when negotiating access prices with them. In that regard, the national court observes that although it is not true to say that the infrastructure used by the cable operators in question is saturated, it is, however, likely that the effect of the contested measures is to place foreign broadcasters which wish to have their programmes distributed by cable in the bilingual region of Brussels-Capital in a less favourable negotiating position than private broadcasters enjoying must-carry status.

12 In those circumstances, the Conseil d’Ėtat (Council of State) decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:

‘(1) Must the obligation imposed on undertakings which distribute television programmes by cable to [broadcast] certain pre-determined programmes be interpreted as conferring on the programmes’ authors a “special right” within the meaning of Article 86 [EC]?

(2) If the first question is to be answered in the affirmative, must the rules referred to at the end of Article 86(1) [EC] (namely “the rules contained in this Treaty, in particular ... those rules provided for in Articles 12 [EC] and Articles 81 [EC] to 89 [EC]”) be interpreted as not permitting Member States to require undertakings which distribute television programmes by cable to [broadcast] certain television programmes transmitted by private broadcasting organisations, but “falling under” (within the meaning of [the Law of 1995]) specified public powers of that State, with the result that the number of programmes coming from other Member States or non-members of the European Union and of organisations not falling under those public powers is reduced by the number of programmes covered by the “must-carry” obligation?

3. Must Article 49 [EC] be interpreted as meaning that a prohibited restriction of the freedom to provide services exists from the time a measure taken by a Member State, in the present case the obligation to retransmit television programmes over cable distribution networks, is liable to impede directly or indirectly, actually or potentially, the provision of services from another Member State to recipients of those services in the first Member State, which will be the case where, on account of that measure, the service provider finds itself in an unfavourable position when negotiating for access to those networks?

4. Must Article 49 [EC] be interpreted as meaning that a prohibited restriction of the freedom to provide services exists because a measure taken by a Member State, in the present case the obligation to retransmit television programmes over cable distribution networks, is granted only to undertakings established in that Member State in the majority of cases, owing to the place of establishment of those benefiting from the measure or the fact that they have some other link to that Member State – while there is no justification for such a restriction based on overriding reasons relating to the general interest in compliance with the principle of proportionality?’

The questions referred for a preliminary ruling

The admissibility of the first two questions, relating to Article 86(1) EC

13 By its first two questions, the national court asks, in essence, whether Article 86 EC is to be interpreted as meaning that it precludes legislation of a Member State, such as the legislation at issue in the main proceedings, which provides that private broadcasters falling under the public powers of that State and which those powers have designated, have the right, by virtue of a must-carry obligation, to have their television programmes broadcast in their entirety by the cable operators which provide services in the relevant part of that State.

16 The order for reference shows that the relevant provision envisaged by the Conseil d’État is Article 82 EC, according to which any abuse by one or more undertakings of a dominant position within the common market or in a substantial part of it is prohibited.

18 The question accordingly arises in the main proceedings whether the legislation at issue in those proceedings, namely the Law of 1995 and the Orders of 17 January 2001 and of 24 January 2002, had the effect not only of granting the private broadcasters designated under them special or exclusive rights within the meaning of Article 86(1) EC, but also led to the abuse of a dominant position within the meaning of Article 82 EC.

22 In those circumstances, as Belgian Business Television SA, Media ad infinitum SA, TV5‑Monde, the Belgian Government and the Commission of the European Communities contend, the Court is unable to provide a useful answer to the first two questions.

23 It follows that the first two questions put by the national court must be declared inadmissible.

The third and fourth questions, relating to Article 49 EC

24 By these questions, which should be considered together, the national court asks, in essence, whether Article 49 EC is to be interpreted as precluding national legislation of a Member State, such as the legislation at issue in the main proceedings, which requires, by virtue of a must-carry obligation, cable operators providing services on the relevant territory of that State to broadcast television programmes transmitted by the private broadcasters falling under the public powers of that State and designated by them.

25 As a preliminary point, it should be noted that, contrary to what a number of interested parties have submitted in their written observations, that question cannot be examined in the light of Directive 2002/22/EC of the European Parliament and of the Council of 7 March 2002 on universal service and users’ rights relating to electronic communications networks and services (Universal Service Directive) (OJ 2002 L 108, p. 51), Article 31 of which authorises the Member States, subject to certain conditions, to impose a must-carry obligation, inter alia as regards the transmission of television programmes.

26 As is clear from the order for reference, that directive, which is not the subject of any questions put by the Conseil d’État, has no bearing on the resolution of the main proceedings since, as UPC also pointed out at the hearing, it was not in force on the date of the adoption of the Orders of 17 January 2001 and of 24 January 2002, the validity which that court is required to review in those proceedings.

27 It follows that the third and fourth questions fall to be examined only in the light of Article 49 EC.

31 In pursuance of those rules, the right to the freedom to provide services may be relied on by an undertaking against the Member State in which it is established where the services are provided to recipients established in another Member State and, more generally, whenever a provider of services offers services in a Member State other than the one in which he is established (see, inter alia, Case C-381/93 Commission v France [1994] ECR I‑5145, paragraph 14, and ITC , paragraph 56).

43 As regards, secondly, the question whether that legislation is suitable for securing the attainment of the aim pursued, it must be acknowledged, as the Advocate General rightly observed at point 13 of his Opinion, that having regard to the bilingual nature of the Brussels-Capital region national legislation, such as that at issue in the main proceedings constitutes an appropriate means of achieving the cultural objective pursued, since it is capable of permitting, in that region, Dutch-speaking television viewers to have access, via the network of cable operators broadcasting in that area, to television programmes having a cultural and linguistic connection with the Flemish Community and French-speaking television viewers to have similar access to television programmes having a cultural and linguistic connection with the French Community. Such legislation thus guarantees to television viewers in that region that they will not be deprived of access, in their own language, to local and national news as well as to programmes which are representative of their culture.

47 Next, the award of must-carry status must be based on objective criteria which are suitable for securing pluralism by allowing, where appropriate, by way of public service obligations, access inter alia to national and local news on the territory in question. Thus, such status should not automatically be awarded to all television channels transmitted by a private broadcaster, but must be strictly limited to those channels having an overall content which is appropriate for the purpose of attaining such an objective. In addition, the number of channels reserved to private broadcasters having that status must not manifestly exceed what is necessary in order to attain that objective.

48 Lastly, the criteria on the basis of which must-carry status is awarded must be non-discriminatory. In particular, the award of that status must not, either in law or in fact, be subject to a requirement of establishment on the national territory (see, to that effect, Case C‑211/91 Commission v Belgium [1992] ECR I‑6757, paragraph 12).

49 Furthermore, even where the requirements laid down for the award of must-carry status apply without discrimination, in so far as those requirements are capable of being more easily satisfied by broadcasters established on the national territory by reason, in particular, of the content of the programmes to be transmitted, they must be essential for the attainment of the legitimate objective in the general interest which is being pursued.

50 It is for the national court, in the light of the information before it, to examine whether the national legislation at issue in the main proceedings satisfies those conditions.

51 The answer to the third and fourth questions must therefore be that Article 49 EC is to be interpreted as meaning that it does not preclude legislation, such as the legislation at issue in the main proceedings, which requires, by virtue of a must-carry obligation, cable operators providing services on the relevant territory of that State to broadcast television programmes transmitted by private broadcasters falling under the public powers of that State and designated by the latter, where such legislation:

– pursues an aim in the general interest, such as the retention, pursuant to the cultural policy of that Member State, of the pluralist character of the television programmes available in that territory, and

– is not disproportionate in relation to that objective, which means that the manner in which it is applied must be subject to a transparent procedure based on objective non-discriminatory criteria known in advance.

It is for the national court to determine whether those conditions are satisfied.

Costs

52 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On those grounds, the Court (Third Chamber) hereby rules:

Article 49 EC is to be interpreted as meaning that it does not preclude legislation of a Member State, such as the legislation at issue in the main proceedings, which requires, by virtue of a must-carry obligation, cable operators providing services on the relevant territory of that State to broadcast television programmes transmitted by private broadcasters falling under the public powers of that State and designated by the latter, where such legislation:

– pursues an aim in the general interest, such as the retention, pursuant to the cultural policy of that Member State, of the pluralist character of the television programmes available in that territory, and

is not disproportionate in relation to that objective, which means that the manner in which it is applied must be subject to a transparent procedure based on objective non-discriminatory criteria known in advance.

It is for the national court to determine whether those conditions are satisfied.

[Signatures]

* Language of the case: French.