1 Colum. J. Eur. L. 319 (1995)
G. Straetmans & C. Goemans. Assistants, Study Centre for Comsumer Law, Katholieke Universiteit Leuven.
Freedom to provide services; National legislation designed to maintain a pluralistic, non-commercial broadcasting network; Evasion of national law
While questions on the lawfulness of restrictions aimed at maintaining a pluralistic and non-commercial television broadcasting system have been brought before the Court in several cases, the TVIO case is particularly interesting, since the Court here elaborates on the application of the “evasion-doctrine.”
Although this doctrine is well-established, many questions in respect of its application are uncertain. Therefore, special attention must be devoted to topics such as the extent to which Member States are authorized to subject broadcasting companies established in other Member States to their control, and to what extent Member States are required to justify the measures which they impose once the fact of ‘evasion’ is established.
The tension between the objective establishment criteria and the subjective evasion criteria suggests that a closer look at the evasion case law is required. Moreover, the Commission’s Final Proposal for the adaptation of the Directive on Television Broadcasting sets out rules in this respect, which however obviously could not be applied in the present case.
Facts and Procedure
TV10, a commercial broadcasting corporation established in Luxembourg, obtained an authorization from the Luxembourg authorities to transmit its programs via satellite to the Netherlands. The distribution by cable in the Netherlands of these programs gave rise to questions about the application of provisions of the Dutch broadcasting law.
The Dutch law of April 21, 1987 governing the supply of radio and television programs, radio and television license fees and press subsidies (hereinafter the Media Act) contains, in the interest of a pluralistic and non- commercial radio and television broadcasting system, different sets of rules for broadcasts of domestic origin and for the transmission of programs broadcast from abroad. Hence, the Media Act prescribes, with respect to domestic broadcasting, that air time for radio and television programs on the national network should be allocated to broadcasting associations by the Commissariaat vcor de Media, the Dutch supervisory body for broadcasting. On the other hand, the transmission of foreign audiovisual programs via cable relay systems is permitted in accordance with the legislation in force in the broadcasting country.
The Commissariaat voor de Media held that TV10 had established itself in Luxembourg in order to evade the Dutch legislation applying to domestic associations. It concluded that TV10 could therefore not be regarded a foreign broadcaster within the meaning of the Media Act, and that its programs could not be relayed by cable in the Netherlands.
The Commissariaat voor de Media based its decision on a combination of factors. It found that the day-to-day management of TV10 was largely in the hands of Dutch nationals and its programs were intended to be transmitted by cable relay systems primarily in Luxembourg and the Netherlands, since TV10 had not concluded contracts with cable network operators in other States of the European Community. Furthermore, most of TV10’s employees were Dutch nationals, the advertisements were made in the Netherlands, and the target audience was the Dutch public, even though the broadcasting of the programs, the purchase and subtitling of foreign programs, the directing and final editing took place in Luxembourg.
TV10 brought an appeal against the decision of the Commissariaat before the Raad van State (the Council of State), the highest administrative authority, which requested a preliminary ruling on two questions regarding the applicability of the EC rules on freedom to provide services. The first question pertained to whether the EC concept of “provision of services” covers the transmission, via cable network operators established in one Member State, of television programs supplied by a broadcasting body established in another Member State, even if that body established itself there in order to avoid the legislation applicable to domestic broadcasters in the receiving State. The second question was whether the freedom to provide services is to be interpreted as precluding a Member State from treating a broadcasting body established in another Member State under the law of that State, but whose activities are wholly or principally directed towards the territory of the first Member State, as a domestic broadcaster if its establishment enables it to avoid rules applicable to domestic broadcasting bodies in the receiving State.