Case Law: Free Provision of Television Services

3 Colum. J. Eur. L. 309 (1997)

Gert Straetmans. Assistant at the Institute for European Law, Katholieke Universiteit Leuven.

Case C-11/95, Commission of the EC v. Belgium, 10 September 1996, not yet reported in the E.C.R.

Directive 89/552/EEC – Transmission of programs by cable

Case C-222/94, Commission of the EC and France v. United Kingdom, 10 September 1996, not yet reported in the E.C.R.

Failure to fulfill obligations – Directive 89/552/EEC – Telecommunications – Television broadcasting – Jurisdiction over broadcasters

  1. Facts and Procedure

In both cases the Commission brought an action under Article 169 of the EC Treaty for a declaration that Belgium and the United Kingdom had failed to fulfill their obligations under Council Directive 89/552/EEC of 3 October 1989 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities.’

In Commission v. Belgium, the Commission issued a reasoned opinion requesting an end to the system of prior written authorization for transmission of television programs of other broadcasting stations which, apart from being authorized by the State in which they have their seat, comply with the conditions laid down in Belgium. Those conditions are inter alia laid down in a Decree by the Council of the French Community as regards the French-speaking region and in a Decree by the Council of the Flemish Community as regards the Dutch-speaking region. Through the intermediary of the Belgian State, the respective Councils of the French and Flemish Community advanced several arguments in response to the Commission’s reasoned opinion.

Only a selection of the arguments is dealt with here, and no distinctions between arguments from the French or the Flemish Decrees will be made.

It must be noted that as regards the bilingual Metropolitan Region of Brussel and the German-speaking Community the Commission observed that since no implementation of the abovementioned Directive was effectuated in these regions, Belgium had also failed to fulfill its obligations under the Directive.

In Commission v. United Kingdom, a different regime in England with respect to non-domestic and domestic satellite services forced the Commission to claim before the Court the full and correct implementation of the Broadcasting Directive. Indeed, the United Kingdom Broadcasting Act of 1990 set forth different criteria for determining which domestic and which non-domestic satellite broadcasters fall under its jurisdiction. Moreover, the Broadcasting Act applies (irrelevant) criteria for determining which broadcasters fall within the jurisdiction of a Member State different than the criteria of establishment laid down in the case law with respect to the Broadcasting Directive.