7 The EU media market and the interplay between the legislature and the judiciary
1 Introduction
Regulation of the media market within the EU takes into account its dual dimension -- commercial and cultural or socio-political. The former requires the promotion of market access and regulatory competition;1 the latter justifies regulation of public service broadcasting or other intervention by the State or Union legislature for the purpose of ensuring media pluralism and programme quality.2 This chapter examines the interplay between the Union legislature and judiciary in the field of audiovisual media services, and focuses on the interaction between the two main forms of EU harmonisation: the positive integration of the market by secondary legislation, such as the Television without Frontiers (TWF) Directive 89/5523 and its successor, the Audiovisual Media Services (AVMS) Directive 2010/13;4 and the negative or deregulatory integration, whereby the CJEU has been reviewing national measures which hinder cross-border trade in the audiovisual sector in the light of primary and/or secondary law, and interpreting or reviewing secondary legislation in the light of the Treaty.5
The Court's interaction with the legislature spans three phases. The original lack of harmonising legislation led the Court to determine, by way of interpretation of the Treaty, the scope and limits of free movement, primarily, of services,6 and to a lesser extent, goods.7 The case law centred on the principle of mutual recognition in its (judicially applied) non-absolute form, shifting the emphasis from the regulatory power of the operator's home Member State to the discretion of the host Member State to impose restrictions or bans justified by the public interest provided they were non-discriminatory and proportionate.8 Home State control could only prevail in the absence of a sufficiently compelling basis for host-State control.9 The inadequacy of that approach led to the adoption of the TWF Directive and the start of the second phase. However, the Court was called to fill the gaps or address questions left open by the partial and minimum harmonisation, by interpreting secondary legislation in the light of the Treaty. Most of the principles developed through case law were integrated into secondary law. The final phase has been running at two levels. On the one hand, EU legislation was supplemented by harmonisation of further aspects of the audiovisual sector, such as intellectual property rights relating to satellite and cable broadcasting10 or information society services11 and access to media. The obligations initially prescribed for providers of broadcasting services concerning television signals12 were merged into the new regulatory framework for electronic communications;13 this introduced ex ante control over conditional access technologies and imposed a positive duty on network and service providers to guarantee media pluralism by ensuring that a wide variety of programmes and services are available and by encouraging the use of an open application programme interface by providers of digital interactive services.14 The legislature adopted models inspired by case law or inherent in the TWF and AVMS Directives, such as the country of origin principle combined with re-regulation.15 Once again, the Court was called on to interpret secondary legislation not only literally or purposively but also in the light of primary law; and review the compatibility of national measures with secondary legislation.16 It, exceptionally, also reviewed – but upheld – the validity of secondary legislation.17 On the other hand, primary law, such as the EU Charter of Fundamental Rights,18 integrated general principles of EU law concerning, in particular, freedom and plurality of opinion and the media,19 and related judge-made public interest grounds for justifying restrictions on free movement.20 This provides a formal basis for reviewing EU legislation, or national measures falling within the scope of EU law, whether they implement secondary legislation21 or restrict the fundamental freedoms.22
This chapter is structured in four parts: the first three parts will critically examine the three main phases of the interplay between the judiciary and the legislature. The concluding part will summarise the limits drawn to the Member States’ discretion to impose restrictions on the free movement of audiovisual media services by either the Treaty or secondary law, explore the intensity of the judicial review and the impact of EU harmonisation, and assess the dynamic relationship between the Court and the EU legislature post-harmonisation.
2 First phase: the proactive role of the Court and the adoption of the TWF Directive
Before the TWF Directive entered into force, the Court was very proactive in opening up the market in audiovisual media services by rigorously scrutinising national restrictions on free movement in the light of the Treaty. Cross-border television broadcasting and advertising activities were recognised as services,23 as was the distribution of films or sound recordings inasmuch as it involved the granting of performing rights.24 Thus, the total ban on cable television advertising, which complemented the State broadcasting monopoly in Italy and Belgium in the 1970s, was regarded as a restriction on free movement of services;25 as was the total prohibition in the Netherlands of the cable distribution of television broadcasts from another Member State that included advertisements specifically addressed to the Dutch public.26 The relaxation of that ban by the attachment of conditions relating to the structure of broadcasters or the advertisements did not alter the Court's finding.27
The Court acknowledged the Member States’ discretion to regulate and restrict television broadcasting on their territory on public interest grounds, provided they did not discriminate arbitrarily against broadcasts or broadcasters from other Member States28 and complied with the principle of proportionality.29 The prevention of frequency interference due to the limited availability of channels could not justify restrictions unless all available channels were used by the State monopoly holder.30 The maintenance of pluralism and a certain level of programme quality and the prevention of commercialism in the audiovisual sector were acknowledged as potential justification grounds, intertwined with freedom of expression (Article 10 ECHR).31 Initially, the Court did not even rule out the possibility that such cultural policy objectives might be covered by the – otherwise strictly construed – public policy exception (now Article 52 TFEU) in order to justify distinctly applicable restrictions.32
The Italian and Belgian ban on cable television advertising was declared compatible with the Treaty because television advertising was then either part of a State broadcasting monopoly33 or totally prohibited.34 However, the original prohibition and the subsequent strict regulation of cable distribution of broadcasts from other Member States in the Netherlands, which included advertisements specifically intended for the Dutch audience, were declared disproportionate as the objectives pursued could be attained by other less restrictive and non-discriminatory means, such as the regulation of broadcasters by their home Member State, imposing advertising restrictions for specific goods or enforcing temporal restrictions applicable to all advertisements.35 By the same token, Spanish legislation which reserved the grant of licences for dubbing of films from third countries to distributors of domestic films was considered a manifestly discriminatory and economically motivated restriction on the free movement of services.36
The case law paved the way for the TWF Directive. The transmitting State principle was introduced, which made the country of origin primarily responsible for ensuring that broadcasters under its jurisdiction complied with domestic audiovisual media legislation and the Directive.37 This was combined with re-regulation through minimum harmonisation of national laws by way of minimum standards applicable to all broadcasting services emanating from and intended for reception within the EU.38 Member States were left with the discretion to impose stricter or more detailed rules on domestic broadcasters39 but could not restrict, for reasons falling within the Directive, services provided by broadcasters established in another Member State except for serious breaches of the provisions on protection of minors or the public order.40 Apart from protection of consumers and minors, the legislature also recognised the public interest objectives of promoting plurality of media and opinion, cultural and linguistic diversity, and media literacy.41
3 Second phase: the Court's interaction with the legislature following the TWF Directive
Already before the TWF Directive was implemented, the Court recognised, by way of interpretation of what is now Article 56 TFEU, the principle of prohibition of abuse in the field of broadcasting services, which impacted on the construction and the revision of the Directive. It also addressed the questions left open by the minimum and partial harmonisation, by interpreting or reviewing the provisions of the Directive in the light of the Treaty. Most of the judge-made principles permeated secondary legislation.
3.1 The principle of prohibition of abuse
Due to the various technical facilities available and the regulatory competition, which has been furthered by the divergent national laws and the minimum harmonisation at EU level, audiovisual media services have provided a fertile ground for practices of forum shopping. The case law concerning allegedly abusive practices on the part of providers of such services built on the Van Binsbergen doctrine of circumvention,42 and paved the way for the evolution of a general principle of EU law. The Court introduced a two-fold test necessary to trigger the application of the principle of prohibition of abuse. This consists of the objective requirement that a broadcaster direct all or most of its activities towards the territory of a Member State other than that in which it is established; and the subjective prerequisite of an intention of abuse of EU law for the purpose of circumventing legitimate national rules.43 The two components are interconnected so that the motive of abuse can be presumed if the objective requirement is satisfied.44 Both before and after the implementation of the TWF Directive, the principle of abuse was accorded a dual effect in case law: a pre-emptory one – pre-empting the application of what is now Article 56 TFEU45 or a Member State's jurisdiction over a broadcaster under the Directive, whereby the Court developed such criteria as to prevent the risk of an abuse of the freedom to provide services and the transmitting State principle;46 and a justificatory one, providing a ground for restrictions on free movement.47 These applications should be regarded as two sides of the same coin; i.e., the prevention of economic operators from benefiting from the Treaty or secondary law for the attainment of purposes blatantly inconsistent with the objectives of the respective provisions.
Following the implementation of the Directive, the Court did not preclude the application of the principle in the harmonised fields as a ground for justifying exceptions. But it restrained the Member States’ originally broad discretion to combat abuse – with the exclusion of obviously discriminatory and protectionist measures constituting the only red line48 – and construed the principle more narrowly so that it did not undermine the effectiveness of the fundamental freedom or the country of origin principle inherent in the Directive.49 Accordingly, broadcasters should not be precluded from exercising the freedom to provide services if they do not offer any services in the Member State where they are established. The Court declared the location of the centre of gravity of a broadcaster's essential activities in the host Member State as a reliable factor in identifying abuse. That is the same criterion used to determine which Member State has jurisdiction over a broadcaster with more than one establishment.50 Case law concerning ‘must-carry’ obligations of cable networks lends support to this strict construction.51
Both functions of the principle were incorporated into the two revisions of the TWF Directive and codified in the AVMS Directive. The prohibition of abuse was integrated primarily as a principle governing the interpretation of Article 2 TWF Directive,52 which was amended to include four new paragraphs concerning jurisdiction over broadcasters.53 As this did not remove completely the risk of abuse, the second revision fleshed out the justificatory function of the principle,54 which had only generally been recognised in the first revision.55 A two-step procedure is available to a Member State that applies to domestic broadcasters stricter rules than the Directive, in the pursuit of legitimate public interest objectives, and considers that the TV programmes of a broadcaster from another Member State are wholly or mostly directed towards its territory; e.g., due to the origin of advertising and/or subscription revenues, the language of the service or the existence of commercial communication or programmes specifically targeting the public in the receiving State.56 It must contact the home Member State ‘with a view to achieving a mutually satisfactory solution’ or else it can take appropriate measures against that broadcaster provided they are approved by the Commission as compatible with EU law.57 This codification confirms the narrow interpretation of the principle of prohibition of abuse, with an eye to preserving the effectiveness of the free movement provisions and, especially, the country of origin principle as the cornerstone of the internal market.58
3.2 The Member States’ discretion to impose stricter rules
This is a field where the interaction between the judiciary and legislature has been most prominent. Interestingly, the requirement that any stricter or more detailed rules than the minimum harmonisation standards, which a Member State may impose on media service providers falling under its jurisdiction, should comply with EU law59 was not originally prescribed by the TWF Directive, but was introduced into its Preamble in 199760 and its main body in 2007.61 This marks a recognition of the established line of case law that any restrictions on free movement arising from such national measures must be justified and proportionate.62
3.2.1 Broad interpretation of the Member States’ discretion
The Member States’ latitude to subject domestic providers to stricter rules in the harmonised fields has been broadly construed. Relying on Article 3(1) TWF Directive,63 the Court upheld, in Leclerc-Siplec, the legitimacy of the total exclusion of the distribution sector from television advertising on domestic broadcasters in France.64 The ambiguity in the wording of the lex specialis of Article 19 of the original version of the Directive was overcome by way of systematic and purposive interpretation. That provision allowed Member States to impose stricter rules on domestic broadcasters, albeit only with regard to programming time and procedures for the broadcasting of advertisements so as to reconcile the demand for advertising with the public interest in protecting access to information or entertainment and media pluralism, and did not include any reservation to the general clause of Article 3, unlike Article 20.65 The Court stressed that a contrary interpretation would deprive that general clause of its purpose in an essential harmonised area such as television advertising.66 This was supported by the unreserved reference in the Preamble to the Member States’ power to regulate TV advertising on domestic broadcasters more strictly.67 This discretion could not affect the attainment of the Directive's main objective of ensuring the free movement of services which complied with its minimum standards.68
Likewise, the Court broadly construed the grounds for justifying such stricter rules to include not only consumer protection (explicitly mentioned in the Preamble) but also other interests,69 including partly economic objectives.70 This implies a review of national legislation in the light of both secondary law and the Treaty. The abstention from a proportionality test may, however, reflect the Court's concern to avoid declaring the ban incompatible with free movement of services, while upholding its legitimacy in the light of free movement of goods as a non-discriminatory selling arrangement.71Leclerc-Siplec led the Union legislature to repeal the old Article 19 and retain only the general legal basis for the Member States’ discretion to prescribe stricter rules for domestic broadcasters provided they could be justified by public interest objectives – including language policy, the protection of the informative, educational, cultural and entertaining role of broadcasting, information and media pluralism or competition.72
3.2.2 Strict interpretation of harmonisation rules that restrict free movement
The broad construction of the Member States’ discretion to subject domestic broadcasters to stricter rules often goes hand in hand with a strict interpretation of minimum harmonisation standards that restrict free movement. In ARD the Court upheld a Member State's right to apply the net principle to the insertion of advertising into audiovisual works on domestic broadcasters, which would exclude the duration of advertisements from the calculation of the forty-five minute time that had to be completed before such intervals.73 The only condition that the Court set was compliance with other provisions of EU law although it did not engage in a rigorous proportionality assessment.74 This is a perfect example of interaction between the judiciary and the legislature in the light of the principles of primacy and pre-emption. It involved a dual review of secondary legislation in the light of the Treaty and of national implementing measures in the light of secondary legislation and the Treaty. Insofar as the – ambiguously worded – Article 11(3) TWF Directive restricted free movement of broadcasting services, it was construed strictly in order to support the application of the gross principle as a minimum harmonisation standard, which allows a greater number of advertising intervals.75
The Court did not confine itself to declaring the application of the – stricter – net principle to domestic broadcasters compatible with the Directive.76 It considered it a restriction on the domestic broadcasters’ freedom to provide services to advertisers in other Member States but justified it on grounds of consumer protection and the cultural policy objective of maintaining a certain level of programme quality, and laconically upheld it as proportionate.77 While the Union legislature relaxed the rules on frequency of advertising intervals, reducing the duration of each scheduled programme period that may be interrupted from forty-five to thirty minutes, it maintained the ambiguous wording, which supports the application of the gross principle (at least) to broadcasts transmitted from other Member States.78
The strict construction of minimum harmonisation rules that restrict free movement, in the light of the Treaty and the aims of secondary legislation, was reaffirmed in KommAustria with regard to the definitions of teleshopping and TV advertising,79 with the emphasis placed on the dual objective of ensuring free movement of services and protecting consumers against excessive or indirect advertising.80 The Court held that the offer of a prize game during an entertainment or interactive broadcast by inviting viewers to call a premium rate number should not be classified as teleshopping and subjected to the restrictions of the Directive or stricter national rules applying to domestic broadcasters if it was of marginal and incidental interest to the programme and the quiz questions were unrelated to the promotion of goods or services.81 Nor could such a prize game constitute TV advertising unless it promoted, by its content, indirectly the broadcaster's programmes or directly the purchase of goods or services that were offered as prizes to be won.82
In a similar vein, in Bacardi, the indirect television advertising for alcohol resulting from hoardings visible on screen during the cross-border retransmission of sporting events, which was prohibited in France, was excluded from the scope of the TWF Directive as it did not constitute a separate announcement from the rest of the programme.83 The ban was examined in the light of Article 56 TFEU but was regarded as proportionate due to its application only to ‘bi-national’ sporting events specifically targeting the French audience and to drinks marketed in France, the Member States’ latitude to determine how best to protect public health, and the inadequacy and excessive cost of technical means of concealing such indirect advertising.84
3.2.3 Applying stricter rules to advertising broadcast from other Member States
De Agostini marks a case of judicial activism in the context of reviewing national measures in the light of secondary legislation and the Treaty. In stark contrast to Advocate General Jacobs,85 the Court extended the Member States’ latitude to regulate television advertising in their territory more strictly than the Directive to include advertisements broadcast from other Member States. In its view, the partial harmonisation of television advertising did not preclude the application of national rules other than those specifically concerning the broadcasting of programmes; this should, however, only exceptionally be allowed provided it did not entail secondary control over broadcasts from other Member States, in addition to the one already carried out by the transmitting State, and did not prevent the retransmission of those programmes as such.86
The application of the Swedish ban on misleading advertising to television advertisements broadcast from other Member States was found to satisfy those two conditions and comply with the TWF Directive.87 The objection that such a restriction might undermine the transmitting State principle was dismissed with reference to the legislature's express intention as manifested in the Directive on misleading advertising.88 This would be robbed of its substance in the field of broadcasting if the receiving State could not take any measures against misleading TV advertising.89 This was subsequently confirmed by the EU legislature.90 While the question whether restrictions on free movement of goods or services resulting from the application of such measures to advertisements broadcast from another Member State complied with the Treaty was left to the national judge, the Court acknowledged fair trading and consumer protection as legitimate public interests.91 By contrast, the application of the total prohibition in Sweden on television advertising directed at children to advertisements broadcast from other Member States was declared incompatible with the TWF Directive.92 Given its comprehensive rules on protection of minors,93 the Court held that the receiving State could no longer exercise an additional control over the content of television advertising broadcast from another Member State for the protection of the same public interest.94
3.2.4 Eagerness to affirm compliance with the Treaty
The Court has often been anxious to answer by itself, and in the affirmative, the question whether stricter national rules applied to domestic media service providers comply with the Treaty,95 and especially the fundamental freedoms. In UTECA, it declared Spanish legislation compatible with both the TWF Directive and primary law insofar as it required that domestic broadcasters earmark 5 per cent of their operating revenue for the funding of European feature or television films, and reserve 60 per cent of that amount (3 per cent of operating revenue) for the financing of original film productions in any of Spain's official languages.96 The Directive only obliged broadcasters to reserve a majority proportion of their transmission time for European works, including at least 10 per cent of that time or their programming budget for works produced independently.97 The Court held that the obligation of Spanish broadcasters to substantially invest in European audiovisual productions was covered by the aims of the Directive and did not restrict free movement.98 The obligation of Spanish broadcasters to fund the original production of films made in one of Spain's official languages was, however, regarded as a restriction on the freedoms of services, workers, establishment and capital,99 which could be justified by the promotion of national language(s) that is intertwined with cultural protection and also underlying the Directive100 and other secondary legislation.101 Instead of leaving the assessment to the national court, the Court declared the measure proportionate, emphasising that it did not entail any undue financial burden and that the advantage granted to the domestic film industry was inherent in the public interest pursued.102
3.2.5 Rigorous review of manifest excesses of the Member States’ discretion
Although the Court is reluctant to rigorously scrutinise the obstacles to free movement raised by the subjection of domestic media service providers to stricter rules than minimum harmonisation standards, it appears keen to declare incompatible with the Treaty only manifest excesses of the boundaries of the Member States’ discretion, as implied in To Me Group.103 While the TWF Directive prohibited only television advertising for prescription drugs and medical treatments available in the transmitting State,104 Italian legislation banned advertising for medical or surgical treatments provided by duly licensed private healthcare establishments on national television networks but conditionally permitted it on local networks. This was regarded as an obviously disproportionate restriction on freedom of establishment and free movement of services offered by private healthcare companies from other Member States inasmuch as the exclusion of local networks from the ban lacked consistency and effectiveness in protecting the public interest.105 Given the Member States’ wide discretion to determine the standards of protection of public health in their territory (now Articles 52(1) and 65 TFEU),106 this ruling suggests that had it not been for that inconsistency, the Court would most likely have declared proportionate an outright TV advertising ban for private medical treatments.107
3.3 Statutory interpretation and legislative response
While the Member States’ discretion to prescribe stricter rules for domestic media operators often goes hand in hand with a strict interpretation of minimum harmonisation rules that restrict free movement, the Court broadly construes harmonisation standards that promote free movement and/or the public interest, the wording or regulation of which is not exhaustive. This is coupled with a strict interpretation of any explicit derogation from harmonisation, which in turn renders the subjection of domestic operators to laxer rules incompatible with EU law. The Court's autonomous statutory interpretation has often provided the driving force for legislative amendments.
The TWF Directive originally permitted Member States to increase the maximum daily commercial airtime – from 15 per cent to 20 per cent – in order to allow for other forms of television advertising than spots such as direct offers of goods or services to the public.108 Given this non-exhaustive wording, the Court accepted, in RTI, that such other forms of advertising could include teleshopping or ‘telepromotions’, which due to their format are more time-consuming than spot advertisements.109 The first amendment of the Directive recognised the significance of teleshopping, equated it with direct offers broadcast to the public,110 kept the maximum limit of 15 per cent for the daily airtime for advertising spots and set a ceiling of 20 per cent for the daily and hourly airtime devoted to advertising and teleshopping spots or other forms of advertising except for teleshopping windows.111 Only the hourly limit survived the second revision.112 While the scope of the Directive was (partly) extended to channels exclusively devoted to teleshopping or self-promotion, as regards conventional programme channels, the legislature distinguished the airtime devoted to advertising and teleshopping from teleshopping windows in order to ensure a high level of consumer protection; the latter should be clearly identified as such by audiovisual means, have a minimum uninterrupted 15-minute duration and not exceed a maximum number of eight and a daily airtime of three hours;113 these ceilings were repealed in 2007.114
The Court added that the original minimum requirement of Article 17 TWF Directive that sponsored TV programmes be clearly identified as such at their beginning and/or end by the sponsor's name or logo115 did not preclude the insertion of the latter during the programmes provided no special promotional references were made to the sponsor's products or services.116 The Court reiterated the Member States’ discretion to exclude domestic broadcasters from the application of those broadly construed harmonisation rules, provided they complied with the Treaty, but left this question to the national court.117 The second revision of the Directive revamped Article 17, which requires that sponsored programmes be identified at their beginning, end or during their transmission by the sponsor's name, logo or other symbols.118
In a similar vein, in RTL the Court engaged in a very exacting purposive interpretation of the non-exhaustively worded restriction on frequency of advertising intervals during audiovisual works such as feature and television films119 to conclude that this applied to all films made for television irrespective of whether they were already designed to allow for commercial breaks.120 It placed the emphasis on the aims of protecting consumers and maintaining programme quality to defend the effectiveness of that construction and the compatibility of the Directive with primary law as a justified and proportionate restriction on free movement of services (now Article 56 TFEU) and freedom of expression (Article 10 ECHR).121 While the Court avoided a rigorous proportionality test, suggesting that the EU legislature profit from the wide discretion acknowledged to national authorities in the field of commercial communication by the European Court of Human Rights,122 it noted that the restriction on frequency did not amount to a ban on advertisements or affect their content, and left broadcasters some room for determining the timing and length of commercial breaks.123 At the same time, all explicit exceptions in secondary legislation are construed strictly. Accordingly, films broadcast in sequence could not be classified as ‘series’ – which require less sustained concentration of viewers and could more frequently be interrupted by advertising intervals according to the Directive124 – unless they had substantive links in content, such as the development of the same story or the appearance of the same range of characters.125
The legislature's response was to bring films made for television and cinematographic works on a par with news and children's programmes by reducing the time that must be completed before and between commercial breaks from forty-five to thirty minutes;126 and to repeal the requirement that successive advertising intervals during any other programmes, including series, serials or documentaries, be at least twenty minutes apart or follow the autonomous parts or the scheduled breaks of broadcasts, such as sports programmes or performances.127 This gives Member States substantial leeway to determine the timing and frequency of advertising intervals during such broadcasts.128
In line with the strict construction of express derogations, the judiciary seems anxious to declare contrary to EU law national laws which prescribe laxer (rather than stricter) rules than minimum harmonisation for domestic media service providers, e.g. by allowing them to exceed the hourly commercial airtime ceiling of twelve minutes.129 Thus, the Court found that Spanish legislation was incompatible with the Directive insofar as it excluded from that ceiling new forms of advertising such as infomercials, telepromotion, sponsorship or micro-advertising spots.130 The CJEU relied on the EU legislature's conviction that that ceiling was suitable to strike a balance between the financial dependence of media on advertising and consumer protection against excessive advertising, especially during prime time.131 The Directive would be deprived of its effectiveness if a Member State exempted from that limit other forms of promotion than those expressly intended by the EU legislature as devoid of direct incitement to purchase goods or services;132 i.e., self-promotional announcements made by broadcasters, sponsorship announcements (not spots) and product placement.133
4 Third phase: the Court's interaction with the legislature with regard to media content and access to media, networks or public contracts
4.1 Regulation of services other than broadcasting
Up until its second revision, the TWF Directive defined television broadcasting as the initial transmission of television programmes intended for reception by the public by any means, in encoded form or not, and excluded communication services providing information on individual demand.134 The Union legislature demonstrated its awareness of the reality of on-demand audiovisual media in harmonising the field of information society services, which are provided remotely at the recipient's individual request;135 excluded are broadcasting services within the meaning of the TWF Directive (including near-video-on-demand) because they are provided through the (point-to-multi-point) transmission of data for simultaneous reception by an unlimited number of receivers.136 In Mediakabel, a pay-per-view service for films offered to the subscribers of a cable network was classified as near-video-on-demand, and thus television broadcasting, inasmuch as it comprised only pre-selected programmes, simultaneously broadcast to all subscribers at times determined by the broadcaster; it was therefore not provided on individual demand.137 Although the Court opted for an autonomous construction of the concept of broadcasting, it was heavily influenced by the exclusionary cross-reference included in the legislation on information society services to the TWF Directive. It concluded that the decisive criterion to distinguish audiovisual media services should be whether they are linear, i.e., intended for simultaneous reception by the public (such as broadcasting or near-video-on-demand), or whether they are non-linear, i.e., commanded individually by recipients who are free to choose programmes interactively. The means of transmission or reception, or the provider's obligation to reserve programming time for European works were deemed irrelevant.138 The same criterion was applied in Kabel Deutschland, where the Court broadly construed the concept of ‘television services’, which could possibly claim ‘must-carry’ status on electronic communications networks under Article 31(1) Universal Service Directive 2002/22,139 to include television broadcasters or providers of other media services such as teleshopping.140
Mediakabel provoked a clear distinction between linear and non-linear audiovisual media services in the second revision of the TWF Directive and the subsequent AVMS Directive. Given their differences from the former as regards their impact on society and the users’ choice and control, the latter were subjected to a lighter regulatory framework, which includes only the general provisions on the transmitting State principle and common minimum harmonisation standards, and special rules concerning on-demand services.141 Any stricter national laws concerning such services must, however, also comply with the procedural requirements attached to information society services.142 In recognition of their potential for replacing traditional broadcasting, the legislature required that non-linear services promote the production or distribution of European works.143
4.2 Public service broadcasting and public contracts
The Court reaffirmed its tendency to interpret broadly secondary legislation designed to facilitate the functioning of the internal market and strictly construe any derogations in GEWA. It held that public broadcasters should be regarded as indirectly financed for the most part by the State and consequently as contracting authorities for the purposes of the award of public service contracts, bound by Directive 92/50144 and its successor, Directive 2004/18,145 if they were more than 50 per cent funded by licensing fees levied by the State on all holders of a receiver in order to offset its duty to ensure access to objective and plural audiovisual media.146 This functional interpretation would prevent the risk of giving preference to domestic bidders.147 By the same token, the Court emphasised that the explicit derogation prescribed by secondary legislation concerning the acquisition, development or production of programme material and broadcasting time148 could not apply to public contracts unrelated to activities forming part of the broadcasters’ public service remit.149
4.3 Conditional access services
The Court tends to examine, admittedly with varying intensity, whether national restrictions on free movement in the audiovisual sector comply not only with secondary but also with primary law even where the former seems to have largely pre-empted the question. In Canal Satélite Digital the requirement of prior authorisation and technical certification, which was prescribed by Spanish legislation for the marketing of decoders for digital satellite broadcasting, including those lawfully manufactured or marketed in other Member States, was not, as such, found contrary to Directive 95/47150 on the grounds that the latter failed to provide for implementing administrative measures. The Court, however, emphasised that it had ‘at all times’ to comply with the fundamental freedoms of the Treaty,151 and should have also been notified as a technical regulation152 to the Commission.153 While the ensuing restriction on free movement of goods and services could be justified on consumer protection grounds, the Court suggested that it be declared disproportionate if it was not based on objective, non-discriminatory criteria, duplicated controls already carried out in the same or another Member State, or imposed undue administrative or financial burdens on operators of conditional access systems, or if the aim pursued could as effectively be achieved by subsequent controls.154
In order to ensure equal treatment of providers of cross-border broadcasts regardless of establishment, the EU legislature supplemented the provisions on conditional access with Directive 98/84,155 which harmonised national rules that prohibit and impose sanctions against possession, marketing or promotion of illicit devices which give unauthorised access to conditional access audiovisual media or information society services.156 This has not, however, pre-empted the question of prohibiting access to encrypted satellite broadcasting of sporting events in a Member State through the use of conditional access devices and services provided by a provider in another Member State with a limited territorial authorisation for transmitting such events.157 The Court held that, although such a prohibition on using foreign decoders was not precluded by Directive 98/84 if a contractual agreement concerning the accessibility of programmes in another Member State was breached – due to the provision of false names and addresses in the acquisition of access devices or the commercial use of access devices intended for domestic use – it would infringe Article 56 TFEU irrespective of such breach of contract;158 and, while such a restriction on the free movement of services could be justified by the need to protect the holders of the rights to make the audiovisual content of sporting events available to the public and/or to commercially exploit their marketing (such as the FAPL) and the licensed broadcasters, it should be regarded as disproportionate if the premium that was to be paid by the licensed broadcasters to the rights holders and designed to guarantee absolute territorial exclusivity was such as to result in artificial price differences between partitioned national markets; this went beyond what was necessary to ensure reasonable remuneration for those rights holders, taking into account the actual and potential audience both within and outside the Member State of broadcast, and was therefore irreconcilable with the completion of the internal market.159 The Court added that any exclusive licensing agreements between programme content providers and conditional access broadcasters in one or more Member States would violate Article 101(1) TFEU inasmuch as the latter were prohibited from supplying decoding devices that enabled access to the relevant programme content but which were intended for use outside the territory covered by the agreements.160 On the other hand, the Court acknowledged that the copyright protection enjoyed by the holders of rights to a broadcast under secondary law161 included communication in public houses with the aim of making profit.162
4.4 Protection of media pluralism
The Court seems generally reluctant to rigorously review national restrictions on free movement that are intended to safeguard media pluralism, in the light of (secondary and/or primary) EU law. Given the distinctive status accorded to this public interest objective, originally in case law, and subsequently in secondary and primary law,163 and in line with the standard approach taken to other fields where Member States enjoy substantial latitude,164 the Court is anxious to declare incompatible with EU law only national measures which manifestly exceed the boundaries of the national authorities’ discretion. This is illustrated in case law concerning the ‘must-carry’ status of broadcasters on cable networks or media ownership restrictions.
4.4.1 ‘Must-carry’ obligations of cable network operators
Article 31(1) of the Universal Service Directive165 allows Member States to reasonably and transparently oblige domestic cable network operators to relay the programmes of specified broadcasters on general interest grounds where the networks constitute the principal means of access to such channels and services for a significant number of end-users.166 Already before that Directive took effect, it served as persuasive authority as the Court accepted in United Pan-Europe that the restriction on free movement of services arising from the ‘must-carry’ obligation imposed by Belgian legislation on cable network operators in the bilingual region of Brussels-Capital, with regard to certain domestic private broadcasters, could be justified on grounds of media pluralism and cultural and language policy.167 While the decision on compliance with EU law was left to the national judges, the Court was anxious to circumscribe the national authorities’ discretion to award ‘must-carry’ status on the basis of non-discriminatory and proportionate criteria so that its boundaries are not manifestly exceeded. This precludes making the award of such status, in law or in fact, conditional on the requirement that a broadcaster be established in the national territory.168 Read with the obiter dictum about the Belgian government's statement that the decision by a private broadcaster to transfer its head office to another Member State would be a reason for reviewing its ‘must-carry’ status even if the content of its programmes remained unaltered, this ruling suggests that if a broadcaster satisfies, on the basis of its programmes, the essential requirements prescribed by national ‘must-carry’ legislation in the public interest, it should not be denied the ‘must-carry’ status on the mere ground that it has its head office in another Member State while its programmes specifically target the public in the first State.169
In a similar vein, in Kabel Deutschland the Court relied on a literal and systematic reading of Article 31(1) of the Universal Service Directive 2002/22 – informed by the Preamble170 and the sister Framework Directive 2002/21171 – to underline that the discretion afforded to Member States to prescribe ‘must-carry’ obligations did not exempt national measures, or the secondary legislation that served as their legal basis, from the duty to comply with primary law, including the protection of freedom of expression or information and media pluralism, which could serve as justification grounds, and the principle of proportionality.172 It, however, added that such an obligation could only exceptionally be declared disproportionate if it involved an automatic award of ‘must-carry’ status, irrespective of programme content, or an unreasonable economic burden for cable network operators – e.g., by not allowing them to choose to relay the programmes on either their analogue or digital network.173 While the latter was a matter for the national court to assess, the Court concluded that the former red line had not been crossed by the obligation imposed by German legislation on domestic cable operators to allow access to their analogue network to all the television programmes already available terrestrially and, in the event of a shortage of channels, to apply a priority list preset by the competent authority – because both the programmes available terrestrially and those included in a priority list were selected according to contribution to pluralism.174
4.4.2 Media ownership restrictions
Restrictions on free movement arising from national rules on media ownership may only exceptionally be declared contrary to EU law if they are manifestly disproportionate. Thus, a constitutional and statutory exclusion of undertakings from eligibility for the award of public works contracts in Greece if their main shareholders or executives were shareholders or executives of media undertakings was deemed disproportionate inasmuch as it established a general and irrefutable presumption of incompatibility between public procurement and media without affording bidders any opportunity to show that they did not jeopardise the public interest.175 Otherwise the Court acknowledged that even if Article 24 of Directive 93/37176 exhaustively listed the grounds relating to a contractor's professional integrity and solvency that could justify his exclusion from the award of a public contract, Member States should be allowed a margin of discretion to restrict free movement of services or freedom of establishment by adopting further exclusionary rules designed to safeguard general principles of EU law that are also inherent in secondary legislation (e.g., equal treatment and transparency) and protect public interest objectives founded on primary law (such as media independence and pluralism or combating of fraud and corruption).177
By the same token, Greek broadcasting legislation designed to preserve media pluralism and prevent defamation or invasion of privacy was dismissed as a manifestly disproportionate restriction on freedom of establishment and free movement of capital insofar as it held all shareholders with a holding of over 2.5 per cent in a broadcasting company liable for fines imposed on that company for breaches of that legislation or rules of professional conduct by television broadcasts even if they were not professionally engaged in broadcasting or their holdings did not allow them to control or influence the broadcaster's editorial and programming decisions.178
5 Conclusions
While the Court has played the leading part in the opening-up of the EU market in audiovisual media services, by reviewing national measures in the light of (primary or secondary) EU law and interpreting, or exceptionally reviewing, secondary legislation in the light of the Treaty, the role of the EU legislature has been that of a follower, although not just passive: it adopted harmonisation measures to overcome the fragmentation of the market, originally identified by the Court; built on and further developed or codified – in secondary and/or primary law – principles or models established in case law; and amended or supplemented secondary legislation in response to the Court's statutory interpretation. In particular, the legislature shifted away from the mutual recognition principle in its (judicially applied) non-absolute form – which centred on the Member States’ power to restrict free movement on sufficiently compelling public interest grounds – to the country of origin principle, which placed the emphasis on the primary regulation and control of media service providers by their home Member State, combined with re-regulation through minimum harmonisation of national rules on audiovisual media services. In addition, the codification of judicially established general principles of EU law concerning media freedom and pluralism into primary law provided a ‘constitutional’ basis for reviewing secondary legislation or national measures falling within the scope of EU law.
Given the partial and/or minimum harmonisation brought about by secondary legislation in the audiovisual media sector (and especially the TWF and AVMS Directives), to the extent that this has not regulated or completely pre-empted a particular field, or has left Member States a margin of discretion to adopt stricter or more detailed rules than the harmonisation standards, in particular with regard to domestic providers of audiovisual media services, the Court has been keen generally to circumscribe the Member States’ latitude. It has laid down the obligation to comply with the Treaty and general principles of law as the red line that must not be crossed and thus the essential prerequisite to compliance with EU law by national laws and, albeit incidentally, secondary legislation that serves as their legal basis; compliance of national measures with the applicable secondary law does not suffice as such unless they do not affect cross-border movement. This precondition has been derived from the hierarchy of norms and the interaction between the twin doctrines of primacy and pre-emption,179 and has subsequently been integrated into secondary legislation.
Nevertheless, in effect, the Court seems reluctant to engage in a rigorous review of the compatibility of such national measures with the Treaty, especially if they can be justified on public interest grounds, including primarily media pluralism, but also protection of consumers, culture or public health, and do not duplicate controls already carried out in the same or another Member State. It generally leaves the assessment of their proportionality to national courts but appears eager to pre-empt that assessment or, even if only occasionally, answer by itself the question of compliance with the Treaty in the affirmative. In addition, the Court's broad construction of the Member States’ discretion to subject media service providers under their jurisdiction to stricter rules appears to be the corollary to the country of origin principle inherent in secondary legislation. On the other hand, the Court is anxious to declare incompatible with EU law only national measures which manifestly exceed the boundaries of the national authorities’ discretion in the audiovisual sector, such as obviously discriminatory or disproportionate restrictions on free movement.
The Court tends to adopt a broad interpretation of the free movement provisions of the Treaty, primarily, on services and establishment, but also goods and capital, or provisions of secondary legislation designed to ensure the cross-border movement of audiovisual media services and/or strike a balance between free movement and the public interest, especially if their wording is not exhaustive. This is coupled with a generally – albeit not always consistently – strict construction of harmonisation rules that restrict free movement or any derogation from harmonisation standards, whether explicitly prescribed by secondary legislation or allowed by the Court in an exercise of judicial activism, especially by way of a praeter legem interpretation of sectoral harmonisation in the light of primary law and/or related horizontal harmonisation measures. Nonetheless, the Court has not struck down any provisions of secondary legislation as incompatible with the Treaty, placing increased emphasis on their harmonious construction.
Last but not least, while the Court's autonomous interpretation of primary and/or secondary law has been the main driving force behind EU legislative action, the bearing of secondary law on judicial interpretation must not be underestimated. This dynamic relationship is prominently illustrated by the evolution of the principle of prohibition of abuse of the free movement provisions of the Treaty and – post-harmonisation – of the TWF and AVMS Directives. Not only has secondary legislation integrated the principle but has, conversely, also directly influenced its judicial application as a ground for justifying restrictions on free movement in the harmonised fields; this has been given such a narrow interpretation that it does not undermine the effectiveness of the fundamental freedoms and the country of origin principle as the cornerstone of secondary legislation.
The author wishes to acknowledge support from the Economic and Social Research Council through the award of a grant (RES-062–23–1996) to explore wider concepts of public interest. Many thanks go to Phil Syrpis for his comments and suggestions. The usual disclaimer applies.
1 See and (eds.), The Economic Regulation of Broadcasting Markets – Evolving Technology and Challenges to Policy (Cambridge University Press, 2007). Cf. C. Barnard and S. Deakin, ‘Market Access and Regulatory Competition’, in and (eds.), The Law of the Single European Market – Unpacking the Premises (Oxford: Hart Publishing, 2002), p. 197.
2 See and , ‘Regulating Media Markets’, in P. Birkinshaw and M. Varney (eds.), The European Union Legal Order after Lisbon (The Hague: Kluwer Law International, 2010), pp. 155 at 156–7; and and , European Broadcasting Law and Policy (Cambridge University Press, 2007) at pp. 36--7, 249--50 and 290.
3 Council Directive 89/552/EEC of 3 October 1989 on the co-ordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities, OJ 1989 L298/23, as amended by Directive 97/36/EC of the European Parliament and the Council of 30 June 1997, OJ 1997 L202/60, and by Directive 2007/65/EC of the European Parliament and the Council of 11 December 2007, OJ 2007 L332/27.
4 Directive 2010/13/EU of the European Parliament and the Council of 10 March 2010 on the co-ordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services (Audiovisual Media Services Directive), OJ 2010 L95/1 (as corrected in OJ 2010 L263/15).
5 Cf. and , EU Law – Text, Cases and Materials (Oxford University Press, 5th edn, 2011), pp. 582–3.
6 Case 155/73 Criminal Proceedings against Giuseppe Sacchi (‘Sacchi’) [1974] ECR 409; Case 52/79 Procureur du Roi v. Marc J.V.C. Debauve and others (‘Debauve’) [1980] ECR 833; Case 352/85 Bond van Adverteerders and others v. The Netherlands State (‘Bond’) [1988] ECR 2088; Case C-260/89 Elliniki Radiophonia Tiléorassi AE and Panellinia Omospondia Syllogon Prossopikou v. Dimotiki Etairia Pliroforissis and Others (‘ERT’) [1991] ECR I-2925; Case C-288/89 Stichting Collectieve Antennevoorziening Gouda and Others v. Commissariaat voor de Media (‘Gouda’) [1991] ECR I-4007; Case C-353/89 Commission v. Netherlands (‘Mediawet’) [1991] ECR I-4069; Case C-23/93 TV10 SA v. Commissariaat voor de Media (‘TV10’) [1994] ECR I-4795.
7 Sacchi, n6 above, at [7]--[8]; ERT, n6 above, at [14]; Joined Cases 60–61/84 Cinéthèque SA and Others v. Fédération nationale des cinémas français (‘Cinéthèque’) [1985] ECR 2605, at [9]--[11]; Case 395/87 Ministère public v. Jean-Louis Tournier (‘Tournier’) [1989] ECR 2521, at [13].
8 Cf. and , ‘Commercial Gambling without Frontiers: When the ECJ Throws, the Dice is Loaded’ (2008) 27Yearbook of European Law 237, at 270–1.
9 See S. Weatherill, ‘Pre-emption, Harmonisation and the Distribution of Competence to Regulate the Internal Market’, in Barnard and Scott, n1 above p. 41 at 45.
10 Council Directive 93/83/EEC of 27 September 1993 on the co-ordination of certain rules concerning copyright and rights related to copyright applicable to satellite broadcasting and cable retransmission, OJ 1993 L248/15.
11 Directive 2001/29/EC of the European Parliament and the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society, OJ 2001 L167/10, as corrected in OJ 2002 L6/70.
12 Directive 95/47/EC of the European Parliament and the Council of 24 October 1995 on the use of standards for the transmission of television signals (‘Television Standards Directive’), OJ 1995 L281/51.
13 Directive 2002/19/EC of the European Parliament and the Council of 7 March 2002 on access to, and interconnection of, electronic communications networks and associated facilities (‘Access Directive’), OJ 2002 L108/7; Directive 2002/20/EC of the European Parliament and the Council of 7 March 2002 on the authorisation of electronic communications networks and services (‘Authorisation Directive’), OJ 2002 L108/21; Directive 2002/21/EC of the European Parliament and the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services (‘Framework Directive’), OJ 2002 L108/33; and Directive 2002/22/EC of the European Parliament and the Council of 7 March 2002 on universal service and users’ rights relating to electronic communications networks and services (‘Universal Service Directive’), OJ 2002 L108/51, as amended by Directive 2009/136/EC of the European Parliament and the Council of 25 November 2009, OJ 2009 L337/11.
14 See , ‘Who Owns the Media? Plurality, Ownership, Competition and Access’, in D. Goldberg, G. Sutter and I. Walden (eds.), Media Law and Practice (Oxford University Press, 2009), pp. 19 at 42–4.
15 See, e.g., Articles 3(1)--(2) and 15 Directive 2000/31/EC of the European Parliament and the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the internal market (‘Directive on electronic commerce’), OJ 2000 L178/1. See , ‘Country of Origin Regulation in Cross-Border Media: One Step Beyond the Freedom to Provide Services?’ (2005) 54International and Comparative Law Quarterly89.
16 See, e.g., Case C-192/04 Lagardère Active Broadcast v. Société pour la perception de la rémunération équitable (SPRE) and Gesellschaft zur Verwertung von Leistungsschutzrechten mbH (GVL) [2005] ECR I-7199, at [26]--[44]; and Case C-306/05 Sociedad General de Autores y Editores de España (SGAE) v. Rafael Hoteles SA [2006] ECR I-11519.
17 See, e.g., Case C-479/04 Laserdisken ApS v. Kulturministeriet [2006] ECR I-8089 (on Directive 2001/29, n11 above).
18 Charter of Fundamental Rights of the European Union of 7 December 2000 as revised and re-proclaimed on 12 December 2007, with a view to taking effect as from the date of entry into force of the Lisbon Treaty, OJ 2010 C83/389. Art 6(1) TEU accords the Charter the same legal value as the Treaties.
19 Article 11 EU Charter of Fundamental Rights.
20 See Gouda, n6 above, at [23]; Mediawet, n6 above, at [30]; TV10, n6 above, at [18]--[19], [21]--[22] and [24]--[26]; and Case C-368/95 Vereinigte Familiapress Zeitungsverlag- und -vertriebs GmbH v. Heinrich Bauer Verlag (‘Familiapress’) [1997] ECR I–3689, at [18].
21 Article 51(1) EU Charter of Fundamental Rights.
22 See Cinéthèque, n7 above, at [26]; ERT, n6 above, at [42]--[44]; TV10, n6 above, at [24]--[25]; and Familiapress, n20 above, at [24]--[27].
23 Sacchi, n6 above, at [6]; Debauve, n6 above, at [8]; Bond, n6 above, at [14]--[16]; ERT, n6 above, at [13]; and TV10, n6 above, at [13].
24 Case 62/79 SA Compagnie générale pour la diffusion de la télévision, Coditel (I), and others v. Ciné-Vog Films and Others [1980] ECR 881, at [14]--[15]; Case 262/81 SA Compagnie générale pour la diffusion de la télévision, Coditel (II), and others v. Ciné-Vog Films SA and Others [1982] ECR 3381, at [11]; Case C-17/92 Federación de Distribuidores Cinematográficos v. Estado Español et Unión de Productores de Cine y Televisión (‘Fedicine’) [1993] ECR I-2239, at [10]; and Tournier, n7 above, at [13].
25 Debauve, n6 above, at [11]--[14]; and Sacchi, n6 above, at [6] and [20].
26 Bond, n6 above, at [22]--[27] and [29]--[30].
27 Gouda, n6 above, at [17]--[19]; and Mediawet, n6 above, at [38]--[39].
28 ERT, n6 above, at [18] and [24]--[26].
29 Sacchi, n6 above, at [7]--[8]; Debauve, n6 above, at [12] and [15]; and Bond, n6 above, at [36] and [38].
30 ERT, n6 above, at [15]--[16], [18], [20] and [22]--[26].
31 Gouda, n6 above, at [22]--[23] and [27]; and Mediawet, n6 above, at [29]--[30] and [45].
32 Bond, n6 above, at [33] and [35]--[36]. Contrast Fedicine, n24 above, at [18]--[20] where protection of national film industry was excluded from public policy.
33 Sacchi, n6 above, at [6], [14], [16]--[17] and [20] with the emphasis placed on the prohibition of discrimination in services (now Articles 18 and 56 TFEU) and competition (now Articles 101–2 TFEU).
34 Debauve, n6 above, at [16] and [18]--[19].
35 Bond, n6 above, at [37] and [39]; Gouda, n6 above, at [24]--[25] and [28]--[29]; and Mediawet, n6 above, at [42]--[43] and [46]--[47].
36 Fedicine, n24 above, at [15]--[16] and [21]--[22].
37 Articles 2(1) and 3(6) (ex-Article 3(2)) Directive 89/552, as amended by Directive 2007/65, n3 above, and Articles 2(1) and 4(6) Directive 2010/13, n4 above.
38 Articles 3(1) (ex-Article 2a(1)) and 3a--23 Directive 89/552, as amended by Directive 2007/65, n3 above, and Articles 3(1) and 4–28 Directive 2010/13, n4 above. See , The Substantive Law of the EU – The Four Freedoms (Oxford University Press, 3rd edn, 2010), pp. 386--91.
39 Article 3(1) Directive 89/552, as amended by Directives 97/36 and 2007/65, n3 above, and Article 4(1) Directive 2010/13, n4 above.
40 Article 2a Directive 89/552, as amended by Directives 97/36 and 2007/65, n3 above, and Article 3 Directive 2010/13, n4 above.
41 See Recitals 4, 6 and 44 Directive 97/36, n3 above; Recitals 1, 3–4, 8, 28, 32, 38, 48 and 65 Directive 2007/65, n3 above; and Recitals 5, 8–9, 12, 34, 41, 44, 47–48, 78–79, 83, 90, 94 and 99 Directive 2010/13, n4 above.
42 Case 33/74 Van Binsbergen v. Bedrijfsvereniging Metaalnijverheid [1974] ECR 1299, at [13].
43 Case C-148/91 Vereniging Veronica Omroep Organisatie v. Commissariaat voor de Media (‘Veronica’) [1993] ECR I-487, at [12]; and TV10, n6 above, at [18]--[22] and [26].
44 See , ‘Free Movement of Broadcasting Services and Abuse of Law’, in R. de la Feria and S. Vogenauer (eds.), Prohibition of Abuse of Law – A New General Principle of EU Law (Oxford: Hart Publishing, 2011), pp. 63 at 65, 69–71 and 83–91.
45 Veronica, n43 above, at [13]--[15].
46 Case C-11/95 Commission v. Belgium (‘Belgian cable network’) [1996] ECR I-4115; Case C-222/94 Commission v. UK (‘UK satellite services’) [1996] ECR I-4025; Case C-14/96 Criminal Proceedings against Paul Denuit [1997] ECR I-2785; and Case C-56/96 VT4 Ltd v. Vlaamse Gemeenschap (‘VT4’) [1997] ECR I-3143.
47 TV10, n6 above, at [14]--[16].
48 Case C-211/91 Commission v. Belgium (‘Flemish cable network’) [1992] ECR I-6757, at [9]--[10] and [12].
49 Belgian cable network, n46 above, at [65]. Cf. AG Jacobs in Joined Cases C-34 to C-36/95 Konsumentombudsmannen (KO) v. De Agostini (Svenska) Förlag AB and TV-Shop i Sverige AB (‘De Agostini’) [1997] ECR I-3843, at [32]--[34], [40], [45]--[54], [61]--[62] and [86]--[87]. See Doukas, n44 above, at pp. 72–85.
50 VT4, n46 above, at [19] and [22]--[23]. Cf. UK satellite services, n46 above, at [58].
51 Case C-250/06 United Pan-Europe Communications Belgium SA and Others v. Belgian State (‘United Pan-Europe’) [2007] ECR I-11135, at [48].
52 See Recital 19 Directive 97/36, n3 above.
53 Articles 2(2)--(5) Directive 89/552 as amended by Directive 97/36, n3 above; and Article 2(2)--(5) Directive 2010/13, n4 above.
54 Article 3 Directive 89/552, as amended by Directive 2007/65, n3 above; and Article 4 Directive 2010/13, n4 above. This does not include cases of circumvention of stricter national rules by providers of on-demand audiovisual media services, to which, however, the case law of the Court should apply. See also Recitals 31–3 Directive 2007/65, n3 above; and Recitals 40–2 Directive 2010/13, n4 above.
55 Recital 14 Directive 97/36, n3 above.
56 Recital 33 Directive 2007/65, n3 above; and Recital 42 Directive 2010/13, n4 above.
57 Articles 3(1)--(5) Directive 89/552, as amended by Directive 2007/65, n3 above, and Article 4(1)--(5) Directive 2010/13, n4 above.
58 Recitals 31–2 Directive 2007/65, n3 above; and Recitals 40–1 Directive 2010/13, n4 above.
59 Article 4(1), and Recitals 41, 78 and 83 Directive 2010/13, n4 above.
60 Recital 44 Directive 97/36, n3 above.
61 Article 3(1) Directive 89/552, as amended by Directive 2007/65, and Recital 32 Directive 2007/65, n3 above.
62 See , Werbefreiheit und Werbebeschränkungen (Baden-Baden: Nomos, 2005), pp. 102–7 and 118–28.
63 Now Article 4(1) Directive 2010/13, n4 above.
64 Case C-412/93 Société d’Importation Edouard Leclerc-Siplec v. TF1 Publicité SA and M6 Publicité SA (‘Leclerc-Siplec’) [1995] ECR I-179.
65 Now Article 26 Directive 2010/13, n4 above. This concerns broadcasts intended solely for the national territory which cannot be received in any other Member State.
66 Leclerc-Siplec, n64 above, at [40]--[41]. Cf. , ‘Libertés fondamentales et télévision européenne’, in A. Clapham and F. Emmert (eds.), Collected Courses of the Academy of European Law, Vol. I, Book 2 (EUI/M Nijhoff Publishers, 1990), pp. 29–93, at 75.
67 Recital 27 Directive 89/552, n3 above.
68 Leclerc-Siplec, n64 above, at [43]--[44].
69 Ibid., at [45]--[47].
70 The prohibition of TV advertising for the distribution sector, literary publications, the film industry, the press and alcoholic drinks of a strength higher than 1.2 per cent aimed to ensure the financial viability of the regional press, and protect media pluralism, public health and culture from commercialisation. AG Jacobs in Leclerc-Siplec, n64 above, at [1] and [58]--[62].
71 Ibid., at [22]--[24].
72 Recital 44 Directive 97/36 and Article 3(1) Directive 89/552, as amended by Directive 2007/65, n3 above; and Article 4(1) Directive 2010/13, n4 above.
73 Article 11(3) Directive 89/552, as amended by Directive 97/36, n3 above, whereby the term ‘complete’ (period of 45 minutes) was removed.
74 Case C-6/98 Arbeitsgemeinschaft Deutscher Rundfunkanstalten (ARD) v. ProSieben Media AG (‘ARD’) [1999] ECR I-7599, at [40] and [42]--[43].
75 Ibid., at [23]--[33].
76 Article 3(1) Directive 89/552, n3 above; and Article 4(1) Directive 2010/13, n4 above.
77 ARD, n74 above, at [50]--[52] and [54].
78 Article 11(2) Directive 89/552, as amended by Directive 2007/65, n3 above; and Article 20(2) Directive 2010/13, n4 above.
79 Article 1(i) and (l) (ex-Article 1(c) and (f)) Directive 89/552, as amended by Directives 97/36 and 2007/65, n3 above; now Article 1(i) and (l) Directive 2010/13, n4 above.
80 Case C-195/06 Kommunikationsbehörde Austria (KommAustria) v. Österreichischer Rundfunk (ORF) (‘KommAustria’) [2007] ECR I-8817, at [3]--[4] and [24]--[28].
81 Ibid., at [30]–[38] and [40].
82 Ibid., at [41]--[45].
83 Case C-429/02 Bacardi France SAS, formerly Bacardi-Martini SAS v. Télévision française 1 SA (TF1), Groupe Jean-Claude Darmon SA and Girosport SARL (‘Bacardi’) [2004] ECR I-6613, at [26]--[29].
84 Ibid., at [34]--[38] and [41]; and Case C-262/02 Commission v. France (‘Loi Evin’) [2004] ECR I-6569, at [24], [30]--[31] and [34]--[37].
85 De Agostini, n49 above, Opinion of AG Jacobs, at [77]--[87].
86 Ibid., at [32]--[34] and [38].
87 Ibid., at [35] and [38].
88 Council Directive 84/450/EEC of 10 September 1984 relating to the approximation of the laws, regulations and administrative provisions of the Member States concerning misleading and comparative advertising, OJ 1984 L250/17, as amended by Directive 97/55/EC of the European Parliament and the Council of 6 October 1997, OJ 1997 L290/18 and Directive 2005/29/EC of the European Parliament and the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market, OJ 2005 L149/22; repealed by Directive 2006/114/EC of the European Parliament and the Council of 12 December 2006 concerning misleading and comparative advertising (codified version), OJ 2006 L376/21.
89 De Agostini, n49 above, at [36]--[37].
90 Recital 82 Directive 2010/13, n4 above, cross-referring to Directive 2005/29, n88 above, for misleading or aggressive practices in audiovisual media.
91 De Agostini, n49 above, at [45]--[54].
92 Ibid., at [56] and [62].
93 Articles 16 and 22 Directive 89/552, as amended by Directive 97/36, n3 above; and Articles 3(4)(a)(i), 9(1)(e) and (g), 12, 22 and 27 Directive 2010/13, n4 above.
94 De Agostini, n49 above, at [57]--[61].
95 As now explicitly required by Article 3(1) Directive 89/552, n3 above; and Article 4(1) Directive 2010/13, n4 above.
96 Case C-22/07 Unión de Televisiones Comerciales Asociadas (UTECA) v. Administración General del Estado (‘UTECA’) [2009] ECR I-1407, at [18]--[21], [39]--[40] and [47].
97 Articles 4(1) and 5 of Directive 89/552, as amended by Directive 97/36, n3 above; and Article 16 Directive 2010/13, n4 above. Article 3i(1) Directive 89/552 and Article 13(1) Directive 2010/13 add the Member States’ duty to ensure that providers of on-demand audiovisual media services under their jurisdiction promote production of and access to European works.
98 UTECA, n96 above, at [22]--[23] citing Directive 97/36, n3 above, Recitals 7 and 45.
99 Ibid., at [24] and [27]--[28]; and Opinion of AG Kokott at [78]--[79], [82]--[83] and [85]--[87].
100 Recital 26 Directive 89/552 and Recital 44 Directive 97/36, n3 above.
101 Council Decision 2006/515/EC of 18 May 2006 on the conclusion of the Convention on the Protection and Promotion of the Diversity of Cultural Expressions, OJ 2006 L201/15, and Recital 14 of the Preamble to this Convention.
102 UTECA, n96 above, at [25], [30]--[36], [40] and [42]--[47].
103 Case C-500/06 Corporación Dermoestética SA v. To Me Group Advertising Media (‘To Me Group’) [2008] ECR I-5785.
104 Article 14(1) Directive 89/552, n3 above; and Article 9(1)(f) Directive 2010/13, n4 above.
105 To Me Group, n103 above, at [6]--[8], [30]--[31] and [33]--[41].
106 Loi Evin, n84 above, at [33].
107 To Me Group, n103 above, at [38]--[39].
108 Article 18(1) and (3) Directive 89/552, n3 above.
109 C-320/94, C-328 to C-329/94 and C-337 to C-339/94 Reti Televisive Italiane SpA and others v. Ministero delle Poste e Telecomunicazioni (‘RTI’) [1996] ECR I-6471, at [29], [31]--[35] and [37].
110 Article 1(f) Directive 89/552 as amended by Directive 97/36, renumbered to Article 1(l) by Directive 2007/65, n3 above; now Article 1(l) Directive 2010/13, n4 above.
111 Article 18(1)--(2) Directive 89/552, as amended by Directive 97/36, and Recital 36 Directive 97/36, n3 above.
112 Article 18(1) Directive 89/552, as amended by Directive 2007/65, n3 above; and Article 23(1) Directive 2010/13, n4 above.
113 Articles 18a(1)--(2), 19 and 19a Directive 89/552, as amended by Directive 97/36, and Recitals 36–38 Directive 97/36, n3 above. See also Article 19 Directive 89/552, as amended by Directive 2007/65, n3 above; and Article 25 Directive 2010/13, n4 above.
114 Article 18a Directive 89/552, as amended by Directive 2007/65, n3 above; and Article 24 Directive 2010/13, n4 above.
115 Article 17(1)(b) of the original version of Directive 89/552, n3 above.
116 RTI, n109 above, at [43]--[45] and [47].
117 Ibid., at [36] and [46].
118 Article 3f(1)(c) Directive 89/552, as amended by Directive 2007/65, n3 above; and Article 10(1)(c) Directive 2010/13, n4 above.
119 Article 11(3)--(4) of Directive 89/552, as amended by Directive 97/36, n3 above.
120 Case C-245/01 RTL Television GmbH v. Niedersächsische Landesmedienanstalt für privaten Rundfunk (‘RTL’) [2003] ECR I-12489, at [59]--[60] and [74].
121 Ibid., at [62]--[71].
122 See VGT Verein gegen Tierfabriken v. Switzerland, App. no. 24699/94 [2001]-VI Reports of Judgments and Decisions, at [66]--[70].
123 RTL, n120 above, at [72]--[73].
124 Article 11(3)--(4) Directive 89/552, as amended by Directive 97/36, n3 above.
125 RTL, n120 above, at [99]--[108].
126 Article 11(2) Directive 89/552, as amended by Directive 2007/65, n3 above; and Article 20(2) Directive 2010/13, n4 above.
127 Article 11(2) and (4) of Directive 89/552, as amended by Directive 97/36, n3 above.
128 Article 11(1) of Directive 89/552, as amended by Directive 2007/65, n3 above; and Article 20(1) Directive 2010/13, n4 above.
129 Article 18(1) Directive 89/552, as amended by Directive 2007/65, n3 above; and Article 23(1) Directive 2010/13.
130 Case C-281/09 Commission v. Spain, judgment of 24 November 2011, at [55]--[56]; and Opinion of AG Bot of 7 April 2011, at [55], [74] and [86]--[87].
131 Recital 59 Directive 2007/65, n3 above; and Recital 87 Directive 2010/13, n4 above.
132 Commission v. Spain, n130 above, at [44], [46], [49] and [52]--[53]; and Opinion of AG Bot, at [71]--[73] and [75]--[85].
133 Article 18(1)--(2) Directive 89/552, as amended by Directive 2007/65, n3 above; and Article 23(1)--(2) Directive 2010/13, n4 above.
134 Article 1(a) Directive 89/552, as amended by Directive 97/36, n3 above. Cf. T. Ballard, ‘Broadcasting’, in Goldberg, Sutter, and Walden, n14 above, at pp. 299–334.
135 Article 2(a) Directive 2000/31 on electronic commerce, n15 above, defines information society services by cross-referring to Article 1(2) of Directive 98/34/EC of the European Parliament and the Council of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations and of rules on information society services, OJ 1998 L204/37 as amended by Directive 98/48/EC of 20 July 1998, OJ 1998 L217/18.
136 Article 1(2) and Annex V§3 of Directive 98/34, n135 above.
137 Case C-89/04 Mediakabel BV v. Commissariaat voor de Media (‘Mediakabel’) [2005] ECR I-4891, at [31]--[33].
138 Ibid., at [21]--[25], [29]--[30], [36]--[39], [41]--[45] and [48]--[52].
139 Universal Service Directive, n13 above.
140 Case C-336/07 Kabel Deutschland Vertrieb und Service GmbH & Co. KG v. Niedersächsische Landesmedienanstalt für privaten Rundfunk (‘Kabel Deutschland’) [2008] ECR I-10889, at [58]--[69].
141 Articles 1(e) and (g), 2–3g and 3h--3i Directive 89/552, as amended by Directive 2007/65, n3 above; and Articles 1(a)(i), (e) and (g), 2–11 and 12–13 of Directive 2010/13, n4 above. See also Recitals 7 and 42 Directive 2007/65, n3 above and Recitals 24 and 58 Directive 2010/13, n4 above. See Barnard, n38 above, at pp. 386 et seq.
142 Recital 13 Directive 2007/65, n3 above; and Recital 17 Directive 2010/13, n4 above, cross-referring to Directive 98/34, n135 above.
143 Article 3i Directive 89/552, as amended by Directive 2007/65, n3 above; Article 13 Directive 2010/13, n4 above; Recital 48 Directive 2007/65, n3 above; and Recital 69 Directive 2010/13, n4 above.
144 Article 1(b) Council Directive 92/50/EEC of 18 June 1992 relating to the co-ordination of procedures for the award of public service contracts, OJ 1992 L209/1.
145 Article 1(9) of Directive 2004/18/EC of the European Parliament and the Council of 31 March 2004 on the co-ordination of procedures for the award of public works contracts, public supply contracts and public service contracts, OJ 2004 L134/114.
146 Case C-337/06 Bayerischer Rundfunk and Others v. GEWA – Gesellschaft für Gebäudereinigung und Wartung mbH (‘GEWA’) [2007] ECR I-11173, at [33]--[34], [41]--[45], [47]--[50], [52], [54]--[55] and [58]--[60].
147 Ibid., at [35]--[40] and [56].
148 Article 1(a)(iv) Directive 92/50, n144 above; and Article 16(b) Directive 2004/18, n145 above.
149 GEWA, n146 above, at [62]--[65] and [67] citing Recital 11 Directive 92/50, n144 above, and Recital 25 Directive 2004/18, n145 above.
150 Directive 95/47/EC, n12 above.
151 Case C-390/99 Canal Satélite Digital SL v. Administración General del Estado, and Distribuidora de Televisión Digital SA (DTS) (‘Canal Satélite Digital’) [2002] ECR I-607, at [13] and [27]--[28].
152 Council Directive 83/189/EEC of 28 March 1983 laying down a procedure for the provision of information in the field of technical standards and regulations, OJ 1983 L109/8 as amended by Directive 94/10/EC of 23 March 1994, OJ 1994 L100/30; repealed by Directive 98/34/EC, n135 above.
153 Canal Satélite Digital, n151 above, at [47] and [49]--[50].
154 Ibid., at [29], [31]--[35] and [39]--[43].
155 Directive 98/84/EC of the European Parliament and the Council of 20 November 1998 on the legal protection of services based on, or consisting of, conditional access, OJ 1998 L320/54.
156 See Case C-58/02 Commission v. Spain [2004] ECR I-621.
157 See Joined Cases C-403/08 and C-429/08 Football Association Premier League Ltd and others v. QC Leisure and Others (‘FAPL’), and Karen Murphy v. Media Protection Services Ltd (‘Murphy’), judgment of 4 October 2011. Cf. Case C-228/10 Union of European Football Associations (UEFA), British Sky Broadcasting Ltd v. Euroview Sport Ltd, OJ 2010 C209/16.
158 FAPL and Murphy, n157 above, at [73]--[74] and [86]--[89].
159 Ibid., at [102]--[104], [107], [109], [112]--[116] and [120].
160 Ibid., at [142], [144] and [146].
161 Article 3(1) Directive 2001/29, n11 above.
162 FAPL and Murphy, n157 above, at [202]--[207].
163 See above Sections 1, 2 and 3.2.
164 Cf. Loi Evin, n84 above, at [33] (health); and D. Doukas, ‘In a Bet there is a Fool and a State Monopoly – Are the Odds Stacked against Cross-border Gambling?’ (2011) 36 European Law Review 242, at 243, 248–9 and 261 (gambling).
165 Directive 2002/22/EC, n13 above.
166 Kabel Deutschland, n140 above, at [21]--[22] and [28].
167 United Pan-Europe, n51 above, at [3]--[5], [25]--[26] and [41]--[43].
168 Ibid., at [42] and [44]--[49].
169 Ibid., at [35]; and ibid., Opinion of AG Poiares Maduro at [11] and [16]. See Doukas, n44 above, at pp. 82–3.
170 Recital 43 Directive 2002/22, n13 above.
171 Recitals 5–6 and Article 1(3) Directive 2002/21, n13 above.
172 Kabel Deutschland, n140 above, at [22]--[27], [29]--[38], [42] and [52].
173 Ibid., at [39]--[43], [46]--[48] and [55]--[56].
174 Ibid., at [44]--[45], [49]--[51] and [53]--[54].
175 Case C-213/07 Michaniki AE v. Ethniko Symvoulio Radiotileorasis and Ypourgos Epikrateias (‘Michaniki’) [2008] ECR I-9999, at [62], [66]--[67] and [69].
176 Council Directive 93/37/EEC of 14 June 1993 concerning the co-ordination of procedures for the award of public works contracts, OJ 1993 L199/54, as amended by Directive 97/52/EC of the European Parliament and the Council of 13 October 1997, OJ 1997 L328/1; repealed by Directive 2004/18/EC, above n145 (Articles 45–7 and 52).
177 Michaniki, n175 above, at [43]--[49] and [53]--[61].
178 Case C-81/09 Idrima Typou AE v. Ypourgos Typou kai Meson Mazikis Enimerosis [2011] 1 CMLR 42, at [47]--[49], [51]--[52], [54]--[60], [62]--[63] and [65]--[70].
179 Cf. and , ‘Hierarchy of Norms in European Law’ (1996) 33Common Market Law Review907–30; and , ‘Supremacy without Pre-emption? The Very Slowly Emergent Doctrine of Community Pre-emption’ (2006) 43Common Market Law Review1023, at 1046–8.
