E.C. Commission, (France intervening) v. United Kingdom (Re Television Broadcasting Directive) (Case C-222/94)

Transcription

1 E.C. Commission, (France intervening) v. United Kingdom (Re Television Broadcasting Directive) (Case C-222/94) Before the Court of Justice of the European Communities ECJ (Presiding, RodrÍguez Iglesias P.; Kakouris, Edward, Puissochet and Hirsch PP.C.; Mancini, Moitinho de Almeida, Kapteyn ( Rapporteur), Gulmann, Murray, Jann, Ragnemalm and Sevón JJ.) Mr Carl Otto Lenz, Advocate General 10 September 1996 Action for a declaration under Article 169 E.C. Broadcasting. Member States. Jurisdiction. The concept of jurisdiction of a Member State, used in the first indent of Article 2(1) of Directive 89/552, must be understood as necessarily covering jurisdiction ratione personae over television broadcasters. A Member State's jurisdiction ratione personae over a broadcaster can be based only on the broadcaster's connection to that State's legal system, which in substance overlaps with the concept of establishment as used in the first paragraph of Article 59 E.C. [40] & [42] Directives. Implementation. Member States. Obligations. Where a Member State has difficulty in implementing a directive, it has an obligation to raise the matter with the Commission in order that the latter may, in close co-operation with the Member States concerned, find an appropriate solution. [56] The Commission sought a declaration that the United Kingdom had failed to implement correctly Directive 89/552, concerning television broadcasting. The main issue concerned the criterion by which it should be determined under which

2 Member State's "jurisdiction" a broadcaster came for the purposes of the first indent of Article 2(1) of the directive. The Commission argued that the Member State under whose jurisdiction a broadcaster came was the Member State in which that broadcaster was established. It was claimed that section 43 of the Broadcasting Act 1990 was deficient in that it had regard to the place where the initial transmission of a programme occurred in order to determine which Member State had jurisdiction. The Commission alleged that the U.K. legislation contained other defects, in that it also applied the criterion of programme reception, failed to make broadcasts from non-member countries coming under U.K. *794 jurisdiction subject to U.K. law, and applied a more lenient regime to non-domestic satellite services than was applicable to domestic satellite services. The U.K. argued that its view that the term "jurisdiction" was based on the criterion of transmission had the advantage of according with the criteria used by the Council of Europe Convention on Transfrontier Television. Use of the criterion of establishment would also, the U.K. argued, lead to practical difficulties in cases where broadcasters were established in more than one Member State, given the directive's aim that only one Member State should have jurisdiction over a particular broadcaster. The Court held that: (1) having regard to the relationship between the first and second indents of Article 2(1), the concept of a Member State's jurisdiction meant its jurisdiction ratione personae over television broadcasters, which had to be based on a broadcaster's connection to that State's legal system, which in turn overlapped substantially with the concept of establishment; (2) the fact that the directive used different criteria from the Council of Europe Convention did not create any difficulty for the Member States, since the Convention expressly provided that the Member States should apply Community law in preference to the Convention; (3) although the use of the criterion of establishment might give rise to practical difficulties in instances where a broadcaster was established in more than one Member State, Member States could avoid such problems by interpreting the criterion of establishment as referring to the place in which a broadcaster had the centre of its activities, in particular the place where decisions concerning programme policy were taken and the programmes to be broadcast were finally put together; (4) as for the argument of the U.K. that the criterion of establishment involved a risk of abuse in that a broadcaster could, in order to avoid the application of the legislation of one Member State, move its seat to another Member State, that risk was exaggerated and the risk of abuse would be comparable, if not greater, if the criterion of transmission were used; (5) therefore, in using a criterion other than that of establishment in order to determine the broadcasters falling under the jurisdiction of the U.K., section 43 of the 1990 Act did not conform with Articles 2(1) and 3(2) of the directive; (6) it followed that the use of the criterion of programme reception by section 43 of the 1990 Act was also incorrect, since the U.K. was responsible for all broadcasters under its jurisdiction, and not only those whose programmes were intended for general reception in the U.K.; (7) the 1990 Act did not conform with the directive in that it did not seek to ensure that broadcasts from non-member countries using a frequency allocated to the U.K. for general reception in another Member State complied with the law applicable

3 to broadcasts intended for the public in the U.K.; (8) the application of a less stringent regime to non-domestic satellite services than that which applied to domestic satellite services was contrary to Article 2(1), which required that all broadcasts transmitted by broadcasters under the jurisdiction of a *795 Member State should comply with the law applicable to broadcasts intended for the public in that Member State; (9) the 1990 Act was also contrary to Article 2(2), since the U.K. thereby asserted jurisdiction over broadcasters transmitting from its territory even though they were established in other Member States. Representation Christopher Docksey and Berend Jan Drijber, of the Legal Service of the E.C. Commission, acting as Agents, for the Commission. Edwige Belliard, Deputy Director in the Legal Affairs Directorate of the Ministry of Foreign Affairs, Jean-Louis Falconi, Secretary for Foreign Affairs in the same Directorate, and Philippe Martinet, Secretary for Foreign Affairs in the Legal Affairs Directorate of the Ministry of Foreign Affairs, acting as Agents, for France as intervener. Stephen Richards, Rhodri Thompson and John E. Collins, Barristers, instructed by John E. Collins, Assistant Treasury Solicitor, acting as Agent, for the United Kingdom. Cases referred to in the judgment: 1. Coenen v. Sociaal Economische Raad (39/75), 26 November 1975: [1975] E.C.R. 1547, [1976] 1 C.M.L.R R. v. Secretary of State for Transport, Ex parte Factortame Ltd and Others (C- 221/89), 25 July 1991: [1991] I E.C.R. 3905, [1991] 3 C.M.L.R Further cases referred to by the Advocate General: 3. Sacchi (155/73), 30 April 1974: [1974] E.C.R. 409, [1974] 2 C.M.L.R Bond Van Adverteerders v. the Netherlands (352/85), 26 April 1988: [1988] E.C.R. 2085, [1989] 3 C.M.L.R Leclerc-Siplec v. Societe TF1 Publicite and Societe M6 Publicite (C-412/93), 9 February 1995: [1995] I E.C.R. 179, [1995] 3 C.M.L.R Forbrukerombudet v. Mattel Scandinavia A/s and Lego Norge A/S (E 8-9/94), 16 June 1995: [1996] 1 C.M.L.R E.C. Commission v. Germany (205/84), 4 February 1986: [1986] E.C.R. 3755, [1987] 2 C.M.L.R Tv10sa v. Commissariaat voor de Media (C-23/93), 5 October 1994: [1994] I E.C.R. 4795, [1995] 3 C.M.L.R E.C. Commission v. Belgium (C-11/95): Still pending. Further cases referred to in argument: 10. E.C. Commission v. Ireland (C-381/92), 26 January 1994: [1994] I E.C.R.

4 E.C. Commission v. the Netherlands (96-97/81), 25 May 1982: [1982] E.C.R 1791 and 1819 *796. Facts I. Facts and procedure A. Legal framework (a) Community law 1. Council Directive 89/552 on the co-ordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasing activities (hereinafter "the Directive") was adopted pursuant to Articles 57(2) and 66 E.C. It is designed to allow the free reception and retransmission within all the Member States of television broadcasts which comply with its provisions. It provides inter alia for the approximation of Member States' laws in certain areas concerning the pursuit of broadcasting activities such as television advertising and sponsorship, the protection of minors, the promotion of distribution and production of television programmes and, the area which forms the particular subject of the present application, the law applicable to broadcasts. 2. The twelfth recital in the preamble to the Directive provides that it is necessary and sufficient that all broadcasts comply with the law of the Member State from which they emanate. 3. According to the fourteenth recital in the preamble, it is necessary, in the common market, that all broadcasts emanating from and intended for reception in the Community, and in particular those intended for reception in another Member State, should respect the law of the originating Member State applicable to broadcasts intended for reception by the public in that Member State and the provisions of the Directive. 4. The fifteenth recital in the preamble provides that the requirement that the originating Member State should verify that broadcasts comply with national law as co-ordinated by the Directive is sufficient under Community law to ensure free movement of broadcasts without secondary control on the same grounds in the receiving Member States. However, the receiving Member State may, exceptionally and under specific conditions, provisionally suspend the retransmission of televised broadcasts. 5. Article 2, which features in Chapter II of the Directive (general provisions), provides as follows: 1. Each Member State shall ensure that all television broadcasts transmitted: -- by broadcasters under its jurisdiction, or -- by broadcasters who, while not being under the jurisdiction of any Member State, make use of a frequency or a satellite capacity granted by, or a satellite

5 up-link situated in, that Member State, comply with the law applicable to broadcasts intended for the public in that Member State. 2. Member States shall ensure freedom of reception and shall not restrict *797 retransmission on their territory of television broadcasts from other Member States for reasons which fall within the fields co-ordinated by this directive. Member States may provisionally suspend retransmissions of television broadcasts if the following conditions are fulfilled: (a) a television broadcast coming from another Member State manifestly, seriously and gravely infringes Article 22; (b) during the previous 12 months, the broadcaster has infringed the same provision on at least two prior occasions; (c) the Member State concerned has notified the broadcaster and the Commission in writing of the alleged infringements and of its intention to restrict retransmission should any such infringement occur again; (d) consultations with the transmitting State and the Commission have not produced an amicable settlement within 15 days of the notification provided for in point (c), and the alleged infringement persists. The Commission shall ensure that the suspension is compatible with Community law. It may ask the Member State concerned to put an end to a suspension which is contrary to Community law, as a matter of urgency. This provision is without prejudice to the application of any procedure, remedy or sanction to the infringements in question in the Member State which has jurisdiction over the broadcaster concerned. 3. This directive shall not apply to broadcasts intended exclusively for reception in States other than Member States, and which are not received directly or indirectly in one or more Member States. 6. Article 3 of the Directive, which also comes under the Chapter on general provisions, provides that: 1. Member States shall remain free to require television broadcasters under their jurisdiction to lay down more detailed or stricter rules in the areas covered by this Directive. 2. Member States shall, by appropriate means, ensure, within the framework of their legislation, that television broadcasters under their jurisdiction comply with the provision of this Directive. 7. Articles 4 and 5 of the Directive, which feature in Chapter III (promotion of distribution and production of television programmes), implement the objective of promoting the production and distribution of European works by laying down minimum requirements for the proportion of programming that should be devoted to the transmission of European works and European works by independent producers, including recent works transmitted within five years of their production. 8. Member States were required under Article 25(1) of the Directive to bring into force the laws, regulations and administrative provisions necessary to comply with the Directive by no later than 3 October 1991 and forthwith to inform the Commission thereof.

6 9. Convention 132 of the Council of Europe on Transfrontier Television (hereinafter "the Convention") was adopted on 15 March The Convention provides inter alia as follows: Article 2: Terms employed For the purposes of this Convention: a. "Transmission" means the initial emission by terrestrial transmitter, by cable, or by satellite of whatever nature, in encoded or unencoded *798 form, of television programme services for reception by the general public. It does not include communication services operating on individual demand;... c. "Broadcaster" means the natural or legal person who composes television programme services for reception by the general public and transmits them or has them transmitted, complete and unchanged, by a third party; d. "Programme service" means all the items within a single service provided by a given broadcaster within the meaning of the preceding paragraph;... Article 3: Field of application This Convention shall apply to any programme service transmitted or retransmitted by entities or by technical means within the jurisdiction of a Party, whether by cable, terrestrial transmitter or satellite, and which can be received, directly or indirectly, in one or more other Parties.... Article 5: Duties of the transmitting Parties 1. Each transmitting Party shall ensure, by appropriate means and through its competent organs, that all programme services transmitted by entities or by technical means within its jurisdiction, within the meaning of Article 3, comply with the terms of this Convention. 2. For the purposes of this Convention, the transmitting Party shall be: a. in the case of terrestrial transmissions, the Party in which the initial transmission is effected; b. in the case of satellite transmissions: i. the Party in which the satellite up-link is situated; ii. the Party which grants the use of the frequency or a satellite capacity when the up-link is situated in a State which is not a party to this Convention; iii. the Party in which the broadcaster has its seat when responsibility under subparagraphs (i) and (ii) is not established.... Article 27: Other international agreements or arrangements

7 1. In their mutual relations, Parties which are members of the European Economic Community shall apply Community rules and shall not therefore apply the rules arising from this Convention except in so far as there is no Community rule governing the particular subject concerned.... (b) National law 10. The Broadcasting Act 1990 provides the regulatory framework for, inter alia, independent television services in the United Kingdom. Its provisions include the legislative measures deemed necessary to implement Directive 89/ Section 13 of the Broadcasting Act prohibits the provision of television programme services other than those of the BBC and the Welsh Authority unless authorised by or under a licence granted by the Independent Television Commission ("ITC"). * Subparagraphs (g) and (h) of section 16(2) implement the requirements laid down in Articles 4 and 5 of Directive 89/552 with regard to programming of European origin and works by independent producers. 13. Section 43 establishes two categories of "satellite television services", domestic and non-domestic, both of which are considered to be "television programme services" and thus require a licence in order to be broadcast. It also sets out the criteria used to determine which television broadcasts are covered by these two categories: -- By virtue of section 43(1), "domestic satellite service" (hereinafter "DSS") means a television broadcasting service where the television programmes included in the service are transmitted by satellite from a place in the United Kingdom on a frequency allocated to the United Kingdom and for general reception in the United Kingdom; -- By virtue of section 43(2), a "non-domestic satellite service" (hereinafter "NDSS") means a service which consists in the transmission of television programmes by satellite: (a) from a place in the United Kingdom for general reception in the United Kingdom or in a Member State otherwise than on an allocated frequency, or (b) from a place outside the United Kingdom or any Member State for general reception in the United Kingdom or in a Member State where the programme material is supplied by a person in the United Kingdom who has editorial control over programming content. 14. Separate provision is made for the licensing of DSS under section 44 of the Broadcasting Act and for that of NDSS under section 45. Section 44(3) applies section 16(2), subparagraphs (g) and (h), concerning European programming requirements to DSS. Section 45(2) of the Act does not apply those subsections, and hence those requirements, to NDSS. 15. Section 47(2) of the Broadcasting Act concerns the licensing of "licensable programme services". Section 79(2) concerns the licensing of "local delivery services consisting in, or including, relaying (complete and unchanged) any foreign satellite programmes".

8 B. Background to the main proceedings 16. By letter of 22 August 1991, the United Kingdom's Permanent Representative sent to the Commission a list of national measures contained in various legislative texts relating to the implementation of the Directive, including the relevant provisions of the Broadcasting Act After examining those provisions, the Commission formed the view that, for the determination of its jurisdiction over satellite broadcasts, the United Kingdom had laid down in section 43 of the *800 Broadcasting Act 1990 criteria other than those provided for in Article 2(1) of the Directive. The consequences of this may be, in certain circumstances, an overlap of laws and, in others, a lacuna in the applicable law. Both consequences, in the Commission's view, are contrary to the Directive and create significant practical difficulties for its application. 18. By letter of formal notice of 3 November 1992, the Commission invited the United Kingdom, pursuant to Article 169 E.C., to submit its observations on the views expressed in that letter, to the effect that the United Kingdom had not correctly and fully implemented the Directive as a result inter alia of the incompatibility between section 43 and other related sections of the Broadcasting Act, on the one hand, and Article 2 of the Directive, on the other. 19. By letter of 10 February 1993, the Office of the United Kingdom's Permanent Representative submitted the observations of the United Kingdom on the different elements of the letter of formal notice. 20. After examining that reply, the Commission concluded that the incompatibility of section 43 and other related sections of the Broadcasting Act 1990 with Article 2 of the Directive remained an issue. A reasoned opinion to this effect was sent on 30 September 1993, in which the United Kingdom was given a period of two months from the date of notification within which to take the measures necessary to comply with it. 21. By letter of 25 January 1994, the United Kingdom stated that, while Directive 89/552 provides for a set of rules which lead to the determination of a single law applicable to a given broadcast, there was a genuine and important difference of view between the Commission and the United Kingdom as to the proper interpretation of Article 2(1) of the Directive, and that the United Kingdom's interpretation of that provision was the correct one. It was for that reason unable to accept the position adopted by the Commission in the reasoned opinion and disputed the Commission's conclusion that the United Kingdom had failed to fulfil its obligations under Article 2 of the Directive. 22. In the light of this reply by the United Kingdom, the Commission decided to bring the matter before the Court of Justice. C. Procedure before the Court 23. The Commission's application was lodged at the Court Registry on 28 July Upon hearing the report of the Judge-Rapporteur and the views of the

9 Advocate General, the Court decided to open the oral procedure without any measures of preparatory inquiry and to refer the case to the small plenary. 25. By order of 20 January 1995, the President of the Court granted France leave to intervene in support of the Commission. *801 II. Forms of order sought by the parties 26. The Commission claims that the Court should: -- Declare that: (a) by adopting with respect to satellite broadcasts the criteria set forth in section 43 of the Broadcasting Act 1990 for determining which satellite broadcasters fall under the jurisdiction of the United Kingdom, and, within that jurisdiction, by applying a different regime to non-domestic satellite services as that applicable to domestic satellite services, and (b) by exercising control over broadcasts which are transmitted by a broadcaster that falls under the jurisdiction of another Member State when those broadcasts are transmitted by a non-domestic satellite service or conveyed to the public as a licensable programme service or by a local delivery service, the United Kingdom has failed to fulfil its obligations under Article 2(1) and (2) and Article 3(2) of Directive 89/552; -- Order the United Kingdom to pay the costs of the proceedings. 27. The United Kingdom contends that the Court should: -- Dismiss the Commission's application; -- Order the Commission to pay the costs. III. Brief summary of the observations submitted to the Court 28. The Commission notes that the reasoned opinion identified two main heads of complaint against the United Kingdom concerning: (a) the failure to comply with Article 2(1) of the Directive as a result of the criteria set out in section 43 of the Broadcasting Act 1990 for determining which satellite broadcasters fall under the jurisdiction of the United Kingdom and as a result of the application of a different regime to NDSS to that applicable to DSS, and (b) the failure to comply with Article 2(2) of the Directive in view of the exercise of control over broadcasts which are transmitted by a broadcaster that falls under the jurisdiction of another Member State when these broadcasts are transmitted by a non-domestic satellite service or conveyed to the public as a licensable programme service or by a local delivery service. First plea in law: failure to comply with Article 2(1) 29. According to the Commission, Article 2(1) of the Directive gives effect to the principle expressed in the twelfth recital in its preamble, *802 that is to say, the application of the legislation of one single Member State to television broadcasts emanating from the European Community, by stating the criteria to determine

10 which Member State is competent to apply its law to a given broadcast, thereby excluding all other Member States from applying their legislation to that broadcast. The main criterion provided in this regard is that of jurisdiction, as follows from Article 2(1), first indent, and Article 3(2). Since the Directive does not affect the competence of Member States with regard to the specific organisation of broadcasting activities on their territory, every Member State has kept its own system. In some circumstances, however, the relevant aspects of a broadcast may, according to the Commission, be situated in two or more Member States. In such a case, the applicable law will have to be determined on the basis of the concept of "jurisdiction", which, although not defined in the Directive, is none the less a notion of Community law. 30. The Commission takes the view that the decisive criterion of jurisdiction is the Member State where the broadcaster is established, not that of the place from which the signal is transmitted. It puts forward the following arguments in support of this contention: First, the term "jurisdiction" cannot be construed in a sense which differs from the way in which the Court of Justice has interpreted the concept of "establishment" in Articles 52, 59 and 60 E.C. The scope of Articles 59 and 60 is defined by reference to the places of establishment of the provider and of the recipient of the services concerned, as the Court held in its judgment in Case 205/84, E.C. Commission v. Germany. [FN1] The Commission adds that the distinction between primary establishment and secondary establishment is not relevant in the present context. Although each economic activity has its own specificities and the relevant aspects determining where an operator is established will not always be the same, the criteria for defining "jurisdiction" should correspond to the concept of establishment. FN1 [1986] E.C.R. 3755, [1987] 2 C.M.L.R. 69. Second, the history of Article 2(1) confirms that the decisive criterion for determining whether a Member State has jurisdiction is the place where the television broadcaster is established. The fourteenth and fifteenth recitals in the preamble to the Directive demonstrate that the terms "originating" and "emanating" are interchangeable; those terms do not necessarily mean the physical departure of a signal, but can also be understood as indicating the source of the broadcast, that is to say, the place where the broadcaster is established, as it is clear from paragraphs 42 and 43 of the Explanatory Memorandum annexed to the proposal for the directive. Third, in contrast to Article 5(1) of the Convention, Article 2(1) of the Directive refers expressly to "broadcasters", thereby linking the concept of "jurisdiction" to that of establishment of the broadcaster. *803 Fourth, the criteria governing jurisdiction are not the same under the Directive and the Convention, since the two instruments have different legal frameworks. While the Directive seeks to bring about the Internal Market, the Convention was designed to regulate transfrontier broadcasting. The question of jurisdiction constitutes an area of incompatibility between the Directive and the

11 Convention, in view of the fact that the primary criterion for determining jurisdiction under the Directive is the residual criterion under the Convention, and vice versa. Fifth, Article 2(1) of the Directive establishes a hierarchy between the primary criterion (broadcaster under the jurisdiction of a Member State) and the residual criterion (broadcaster not under the jurisdiction of a Member State), as can be seen clearly in the French version. If jurisdiction were to be decided solely on the basis of the fact that the television signal is transmitted from a certain place, the second indent of Article 2(1) of the Directive would make no sense. Sixth, the examples of double or triple transmission of the same broadcasts demonstrate that it will become increasingly unrealistic in the future to rely upon technical criteria as a basis for determining a Member State's responsibility for broadcasters. In particular, the introduction of digital compression technology, allowing several channels per transporter, requires a stable criterion of jurisdiction. The criterion of jurisdiction determined on the basis of the place of establishment of the broadcaster is the most appropriate and the most effective in terms of allocating State responsibility. 31. The Commission points out that the existence of two conflicts sets of criteria for jurisdiction within the European Community gives rise to overlaps and gaps. The United Kingdom's interpretation could also give rise to legal uncertainty, even if it were to be consistently applied across the Community, as it would be possible for a broadcaster to escape from the application of the law of a Member State simply by moving its satellite up-link into the territory of another Member State. The criteria applied by the Broadcasting Act may also create negative conflicts of law and give rise to a lacuna of jurisdiction, as has been shown by the problems that arise from the application of the up-link criterion in Case C-327/93, R. v. Secretary of State for National Heritage, ex parte CONTINENTAL TELEVISION, which is at present pending before the Court and concerns "Red Hot TV". 32. The Commission also contends that section 43 of the Broadcasing Act 1990 not only constitutes an incorrect implementation of Article 2(1), first indent, of the Directive, but also gives rise to further infringements. In the first place, the criterion of reception, which is present in all circumstances envisaged by section 43, is without any pertinence to the determination of jurisdiction. It is of importance only for the application of Articles 2(3) and 20 of the Directive. 33. Second, the Broadcasting Act does not ensure that third-country *804 broadcasts using a frequency allocated to the United Kingdom for general reception in another Member State comply with the law applicable in the United Kingdom. 34. Finally, the distinction between the DSS and NDSS regimes is a direct consequence of the distinction based on technical criteria. 35. So far as the first plea in law is concerned, the United Kingdom considers that the essential purpose of Article 2(1) is to provide for the exercise of control by a Member State over television broadcasts transmitted from that Member State. The reference to "broadcasters under its jurisdiction" is essentially a reference to persons engaged in the transmission of broadcasts from places

12 within that Member State. The place from which a broadcast "emanates" (twelfth recital) or "originates" (fourteenth and fifteenth recitals) means the place from which the broadcast is transmitted. 36. The Commission's suggestion that those words refer to the source of the broadcast, that is to say, the place where the broadcaster is established, gives them a highly strained and artificial meaning. The United Kingdom takes the view that the Commission's arguments regarding the original text of what is at present Article 2(1) and the Explanatory Memorandum annexed to its proposal are unconvincing. 37. So far as the Convention is concerned, the United Kingdom notes that the Convention allocates responsibility between the Parties primarily on the basis of the place of transmission of a broadcast. It is the transmitting Party which must ensure compliance by entities or by technical means within its jurisdiction. In the case of terrestrial transmission, responsibility is allocated in a straightforward way by reference to the place of initial emission. In the case of satellite transmission, responsibility will be allocated by reference to the Party which grants the use of the frequency of satellite capacity only if the up-link is situated in a State which is not a Party to the Convention. Although the Community is not itself a Party to the Convention, a nonsensical situation would arise if the Community was to adopt a radically different legal position. In the United Kingdom's view, the real question is whether the Directive can be read in the same sense as the Convention. So far as satellite transmission is concerned, Article 2(1) of the Directive, although not well drafted, must be understood as reflecting the same approach as that provided for by Article 5(2)(b)(ii) and (iii) of the Convention. 38. With regard to the criterion of the place of establishment of the broadcaster for the purposes of jurisdiction, the United Kingdom argues that this approach is not required by the wording or purpose of the Directive and that it is directly inconsistent with the clear meaning of the Convention. The United Kingdom's interpretation, which allocates primary responsibility to the Member State in which a service is actually provided, is in accordance with the fundamental aim and purpose of Article 59 of the Treaty and of the Directive itself. 39. Referring to the judgments of the Court in Case 39/75, Coenenand Others v. Sociaal-Economische Raad *805 [FN2] and in Case C-221/89, Factortame and Others, [FN3] the United Kingdom submits that a broadcaster could be established in more than one Member State and that such a broadcaster should then be entitled to benefit from the provisions of the Directive both in respect of broadcasts from this State of primary establishment and in respect of those from this State of secondary establishment. FN2 [1975] E.C.R. 1547, [1976] 1 C.M.L.R. 30. FN3 [1991] I E.C.R. 3905, [1991] 3 C.M.L.R The United Kingdom discusses the practical difficulties arising from the Commission's interpretation and then goes on to point out that the second indent

13 of Article 2(1) applies in practice only in the case of satellite broadcasters. The Directive thus follows the same approach as Article 5(2) of the Convention. Taking the view that it is more helpful to speak of a dichotomy than of a hierarchy in Article 2(1), the United Kingdom stresses that, although the dichotomy relates to the Member States' jurisdiction over broadcasters, control is to be exercised over the transmission of individual broadcasts so that it is necessary to identify, in respect of each broadcast, which Member State can and must assume responsibility for that broadcast. Such an interpretation brings Article 2(1) into line with the Convention. 41. Regarding the gaps and overlaps which the Commission alleges to be inherent in the United Kingdom's approach, the United Kingdom notes that each of these could be overcome by reasonable co-operation between the Member States. The United Kingdom's criteria are clear, so that it is only a technical question where a broadcast is transmitted. 42. The United Kingdom then goes on to comment on the Commission's examples which, it is claimed, indicate difficulties for the United Kingdom's approach. So far as concerns the case of a single broadcaster transmitting a single broadcast or a single programme service from two separate up-links at different times, the United Kingdom asserts that its approach will never lead to the same broadcast falling under the jurisdiction of two different Member States, whereas the Commission's approach will possibly do so whenever a single broadcasting company is established in more than one Member State. 43. In relation to the case of a broadcaster carrying on the economic activity of broadcasting in Member State A but up-linking different parts of its broadcasting service from Member States B, C and D, the United Kingdom submits that the only clear basis for the allocation of responsibility for the broadcast would in each case be the Member State where the broadcast was actually transmitted. 44. With regard to the case in which a broadcaster up-links the same programme to different viewers from two different Member States or transmits terrestrially to its home audience in one Member State while *806 transmitting simultaneously to a satellite from another Member State, the United Kingdom argues that international agreements would be necessary in order to regulate which country was to be regarded as the primary place of transmission. The Commission's approach would have to be made much more specific if it were to offer a practical alternative. 45. Regarding the case in which a broadcaster moves its up-link from one Member State to another, the United Kingdom contends that its own interpretation is far less likely to lead to uncertainty than is the vaguely defined concept of establishment. 46. Finally, with the regard to the Red Hot Tv case, the United Kingdom considers that action could most effectively have been taken by the relevant national authorities, namely those for the place of transmission of the service, which would have obviated the need for the exceptional action taken by the United Kingdom authorities to protect British viewers from a pornographic service. 47. So far as concerns the operation of section 43 of the Broadcasting Act, the

14 United Kingdom states that this Act identifies three classes of satellite service. Section 43(1) covers DSS, while the provisions of section 43(2)(a) and (b) cover NDSS. The conditions imposed in respect of the licensing of DSS are more stringent than those imposed in respect of NDSS. Referring to Article 3 of the Directive and to the thirteenth recital in its preamble, the United Kingdom argues that it is entitled to impose a less stringent regime on NDSS. Under section 188 of the Broadcasting Act, however, it would be possible for the Secretary of State to give a direction to the ITC to require a NDSS to conform to Articles 4 and 5 of the Directive. 48. Concerning the criterion of reception set out in section 43, the United Kingdom observes that section 43(1) has ceased to be of any importance. The reference to reception in section 43(2)(a) and (b) limits the scope of the Act to the extent of Community law obligations in accordance with Article 2(3) of the Directive. 49. With regard to broadcasts from third countries on U.K.-allocated frequencies, the United Kingdom submits that a breach of Article 2(1), second indent, would occur only in the hypothetical but unrealistic event of the United Kingdom granting a frequency to a non-community broadcaster without exercising control over that broadcaster's service. Second plea in law: failure to comply with Article 2(2) of the Directive 50. According to the Commission, sections 44 and 45 of the Broadcasting Act infringe the principle of free reception and retransmission contained in Article 2(2) of the Directive in so far as the definition of domestic and non-domestic satellite services can cover broadcasters coming under the jurisdiction of Member States other than the United Kingdom. In view of the United Kingdom's erroneous *807 interpretation of Article 2(1) of the Directive, the argument that there cannot be any overlap of legislation because the United Kingdom exercises its jurisdiction over services only if they are transmitted from within the United Kingdom is unacceptable. So far as concerns the "licensable programme services" and "local delivery services" which might convey to the public in the United Kingdom television broadcasts which are originally transmitted by a broadcaster which falls under the jurisdiction of another Member State, the Commission notes that although Article 2(2) of the Directive requires Member States to ensure freedom of reception and to refrain from hindering retransmission, it follows from sections 47 and 49 of the Broadcasting Act that the United Kingdom authorities control compliance by those broadcasts with sections 6(1) and 7 of the Act, thereby amounting to a second control. Only in the case of Article 22 of the Directive is provision made for an exception to the principle of freedom of reception. 51. With regard to the ITC practice of precluding itself from the exercise of its licensing powers, the Commission observes that it is settled case law that mere administrative practies cannot be regarded as constituting the proper fulfilment of a Member's State's obligations under the Treaty. 52. According to the United Kingdom, Article 2(2) of the Directive is concerned with ensuring freedom of reception and retransmission of broadcasts from one

15 Member State in other Member States. The expression "broadcasts from other Member States" is a clear echo of the reference in the recitals to broadcasts "emanating from" the "originating Member State". The arguments put forward by the Commission with regard to this provision demonstrate the absurd consequences of its main contention. 53. With regard to licensable programme services and local delivery services, the United Kingdom argues that, although the Commission is technically correct in its comments on section 47, the ITC interprets section 46 in the light of the Directive. The arguments which the Commission draws from the judgment in Case C-381/92, E.C. Commission v. Ireland [FN4] are not applicable in the present case in view of the fact that section 188 of the Broadcasting Act confers very wide powers on the United Kingdom, which is therefore in a position to ensure that the ITC acts in accordance with the requirements of the Directive. FN4 [1994] I E.C.R So far as section 79 is concerned, the United Kingdom refers to the definition of foreign satellite programmes set out in section 79(5) and to the measures adopted pursuant to that provision. 55. In its statement of intervention, the French Government first of all points out that it shares and supports the analyses made by the Commission. In its view, the United Kingdom's transposition of *808 Article 2(1) of the Directive does not guarantee control at the point of origin such as to facilitate the free movement of broadcasts sought by the Directive. 56. Regarding the issue of the interpretation of the concept of jurisdiction, the French Government observes that the proposal for an amendment to the Directive suggests that the place where the television broadcaster is established should be the main criterion for determining jurisdiction. The combination of the two criteria in Article 2(1) appears to constitue a closed system in which every programme received in the Community would be subject to control at the point of origin by a Member State. However, the French Government finds that regardless of whether it is appropriate to adopt the criterion of the place of transmission of the signal or the criterion of the place of establishment, section 43 of the Broadcasting Act is not compatible with the obligation of first control by the State of origin of the programme, on which the scheme of the Directive as a whole is based. This is particulary the case in so far as section 45(2) of the Broadcasting Act does not make applicable the provisions of the Act which implement Articles 4 and 5 of the Directive. The implementation of those articles is thus ensured only on the basis of the power of an administrative authority (the Secretary of State) to give, but only possibly and on a case-by-case basis, instructions to an independent supervisory body (the ITC) to take measures to ensure compliance by a broadcaster. The French Government refers in this connection to the Court's case law, in particular the judgments in Cases 96-97/81, E.C. Commission v. Netherlands. [FN5] FN5 [1982] E.C.R and 1819.

16 57. The French Government then sets out its views on the breaches of the Directive by the TNT and Cartoon Network channel and the TV-shopping programmes of Quantum TV and Sell a Vision. In all these cases, the ITC granted NDSS authorisation under section 43(2) of the Broadcasting Act. 58. So far as the observations of the French Government are concerned, the United Kingdom refers essentially to its statement of defence. Opinion of Mr Advocate General Lenz A. Introduction 1. The present case and Case C-11/95, in which I am also delivering my Opinion today, provide the Court with its first opportunity to address some of the central problems arising from Council Directive 89/552 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 [FN6] (hereinafter "the television directive"). FN6 [1989] O.J. L298/23. *809 Relevant provisions of Community law 2. The Court has consistently held that the transmission of television signals-- including those in the nature of advertisements--must be regarded as a provision of services within the meaning of Articles 59 and 60 E.C. [FN7] The scope of the freedom to provide services protected by those provisions is also applicable if a cable network operator established in one Member State distributes television programmes of broadcasters from other Member States. [FN8] FN7 The Court thus held as early as its judgment in Case 155/73, Sacchi: [1974] E.C.R. 409, [1974] 2 C.M.L.R. 177, point 6. FN8 Case 352/85, Bond Van Adverteerders and Others v. Netherlands: [1988] E.C.R. 2085, [1989] 3 C.M.L.R. 113, paras. [14]-[17]. 3. The principal objective pursued by the television directive is to remove barriers to the free provision of television broadcasting services. [FN9] The recitals in the preamble to the directive state as follows: [9]... the laws, regulations and administrative measures in Member States concerning the pursuit of activities as television broadcasters and cable operators contain disparities, some of which may impede the free movement of broadcasts within the Community and may distort competition within the Common Market; [10]... all such restrictions on freedom to provide broadcasting services within the Community must be abolished under the Treaty;

17 [11]... such abolition must go hand in hand with co-ordination of the applicable laws;... this co-ordination must be aimed at facilitating the pursuit of the professional activities concerned and, more generally, the free movement of information and ideas within the Community; [12]... it is consequently necessary and sufficient that all broadcasts comply with the law of [the] Member States from which they emanate. [FN10] FN9 See Case C-412/93, Leclerc-Siplec v. TF1 Publicite and M6 Publicite: [1995] I E.C.R. 179, [1995] 3 C.M.L.R. 422, para. [28]. See also the judgment of the EFTA Court of 16 June 1995 in Joined Cases E 8-9/94, Forbrukerombudet v. Mattel Scandinavia and Lego Norge [1996] 1 C.M.L.R. 313, para. 22. FN10 Ninth to the 12th recitals in the preamble to the television directive. For the sake of clarity, I have added the appropriate number in square brackets. According to the grounds given by the Council, the television directive lays down "the minimum rules needed to guarantee freedom of transmission in broadcasting". The organisation, financing and content of programmes remain the responsibility of the Member States. [FN11] The subsequent recitals provide that: [14]... it is necessary, in the Common Market, that all broadcasts emanting from and intended for reception in the Community, and in particular those intended for reception in another Member State, should respect the law of the originating Member State applicable to broadcasts intended for reception by the public in that Member State and the provisions of this Directive; [15]... the requirement that the originating Member State should verify that broadcasts comply with national law as co-ordinated by this Directive is sufficient under Community law to ensure free movement of broadcasts without secondary control on the same grounds in the receiving Member States;... however, the receiving Member State may, exceptionally and *810 under specific conditions, provisionally suspend the retransmission of televised broadcasts. [FN12] FN11 Thirteenth recital in the preamble to the television directive. FN12 Fourteenth and 15th recitals in the preamble to the television directive. 4. Article 1 of the television directive, which comprises Chapter I thereof, sets out a number of definitions. The term "television broadcasting", inter alia, is there defined for the purposes of the directive. That term is there to be understood as meaning "the initial transmission by wire or over the air, including that by satellite, in unencoded or encoded form, of television programmes intended for reception by the public". 5. Chapter II of the directive ("General provisions") contains Articles 2 and 3. Those articles provide as follows: Article 2

18 1. Each Member State shall ensure that all television broadcasts transmitted: -- by broadcasters under its jurisdiction, or -- by broadcasters who, while not being under the jurisdiction of any Member State, make use of a frequency or a satellite capacity granted by, or a satellite up-link situated in, that Member State, comply with the law applicable to broadcasts intended for the public in that Member State. 2. Member States shall ensure freedom of reception and shall not restrict retransmission on their territory of television broadcasts from other Member States for reasons which fall within the fields co-ordinated by this Directive. Member States may provisionally suspend retransmissions of television broadcasts if the following conditions are fulfilled: (a) a television broadcast coming from another Member State manifestly, seriously and gravely infringes Article 22; (b) during the previous 12 months, the broadcaster has infringed the same provision on at least two prior occasions; (c) the Member State concerned his notified the broadcaster and the Commission in writing of the alleged infringements and of its intention to restrict retransmission should any such infringement occur again; (d) consultations with the transmitting State and the Commission have not produced an amicable settlement within 15 days of the notification provided for in point (c), and the alleged infringement persists. The Commission shall ensure that the suspension is compatible with Community law. It may ask the Member State concerned to put an end to a suspension which is contrary to Community law, as a matter of urgency. This provision is without prejudice to the application of any procedure, remedy or sanction to the infringements in question in the Member State which has jurisdiction over the broadcaster concerned. 3. This Directive shall not only apply to broadcasts intended exclusively for reception in States other than Member States, and which are not received directly or indirectly in one or more Member States. *811 Article 3 1. Member States shall remain free to require television broadcasters under their jurisdiction to lay down more detailed or stricter rules in the areas covered by this Directive. 2. Member States shall, by appropriate means, ensure, within the framework of their legislation, that television broadcasters under their jurisdiction comply with the provisions of this Directive. [FN13] FN13 As Jacobs A.G. has already stated in his Opinion of 24 November 1994 in Case C-412/93, Leclerc-Siplec v. TF1 Publicite and M6 Publicite: [1995] I E.C.R. 182, fn. 49, the English version of Article 3(1) contains a mistranslation (according to that version, the Member States have the power to require television broadcasts under their jurisdiction to lay down more detailed or stricter