European Business Law, the fourth volume in our series, shows how the European authorities simultaneously abolish all restrictions on access to and exercise of economic activities and support the growth of domestic markets, through the harmonization the internal legislation or the enactment of genuinely unified regulations.

European Business Law

The receiving Member State does however retain certain prerogatives relating to content shown on its territory. 
Article 3(1) of the directive first restates the principle according to which Member States must ensure the freedom of reception and then goes on in Article 3(2) to provide for the possibility for Member States to provisionally derogate from it in matters of TV broadcasting if they cons …

Exceptions

The receiving Member State does however retain certain prerogatives relating to content shown on its territory. 

Article 3(1) of the directive first restates the principle according to which Member States must ensure the freedom of reception and then goes on in Article 3(2) to provide for the possibility for Member States to provisionally derogate from it in matters of TV broadcasting if they consider that a program from another Member State manifestly, seriously and gravely infringes the provisions of the directive on the protection of minors or on the incitement to hatred based on race, sex, religion or nationality and if during the previous 12 months, the broadcaster has infringed those provisions on at least two prior occasions. The Member State must notify the broadcaster and the Commission of the alleged infringements and of the measures it intends to take should any such infringement occur again. A consultation procedure is then put in place with the transmitting Member State and the Commission. The intended measures can only be taken where the parties have not produced an amicable settlement within 15 days of the notification and the alleged infringement persists. The Commission has two months following notification of the measures taken by the Member State, to take a decision on whether the measures are compatible with Union law. If it decides that they are not, the Member State will be required to put an end to the measures in question. No application for annulment may be sought by a broadcaster of a Commission decision declaring a national measure compatible with EU law . In the case of on-demand audiovisual media services, the conditions for application of the measures are different. Article 3(4) states that the measures must be necessary for the protection of public policy, public health, public security and consumers and must be proportionate to those objectives. Before taking such measures, the Member State must have first asked the transmitting Member State to take measures and it has not taken them and must have notified the Commission and the Member State of its intention to take such measures.

Member States are free to require media service providers under their jurisdiction to comply with more detailed or stricter rules in the fields coordinated by the directive provided that such rules are in compliance with Union law (Art. 4). A Member State may thus prohibit advertising for a particular type of distribution provided that the rule only applies to operators established on its territory , may require its broadcasters to allocate a percentage of their operating revenue to the funding of films of which the original language is one of the official languages of that Member State, insofar as such a restriction to the principle of non-discrimination is justified by the overriding reason in the public interest of defending and promoting one of the official languages of the Union  or may apply, in respect of television programs coming from other Member States, a law for the protection of consumers which provides for a system of prohibitions and restraining orders to be imposed on advertisers, enforceable by financial penalties, provided that those rules only concern the advertisers themselves and do not prevent the retransmission of the television broadcasts .

The “anti-delocalization” provision introduced by Directive No 2007/65 has been included in Article 4(2) of Directive No 2010/13. It means that a Member State may take appropriate measures with regard to a television broadcast service provider which is wholly or mostly directed towards its territory, but which has established itself in another Member State in order to circumvent the stricter rules adopted according to Article 4(1). This provision only concerns television broadcasts. The receiving Member State contacts the home Member State with a view to achieving a mutually satisfactory solution to any problems posed. The Member State having jurisdiction must then request the broadcaster to comply with the rules of general public interest in question. The home Member State then informs the first Member State of the results obtained following this request within 2 months. Where the latter is not satisfied with the results achieved, it may adopt appropriate measures against the broadcaster concerned, appropriate measures being those which are objectively necessary, applied in a non-discriminatory manner and proportionate to the objectives which they pursue. 

Lastly, a Member State may take measures to ensure the retransmission of events which are regarded by that Member State as being of major importance for society where an operator holds the exclusive broadcasting rights (Art. 14). Each Member State can draw up a list of designated events that must be broadcast on free television even if the exclusive rights to them have been purchased by pay TV channels. It must notify to the Commission any measures taken or to be taken and the Commission has 3 months from the notification to verify that such measures are compatible with EU law. The Commission's power of review of the legality of the national measure designating events as being of major importance is limited. The Court stipulates that it is required to examine only the effects of that designation on the freedom to provide services, the freedom of establishment, the freedom of competition and the right to property which exceed those which are intrinsically linked to the inclusion of that event in the list provided for in Article 3a(1) of Directive No 89/552 [now Article 14 of Directive No 2010/13] . The Commission's letter informing the Member State of the compatibility of the measure is subject to any application for annulment by the exclusive right-holder as it affects its legal situation by adding new restrictions which did not exist when it acquired those broadcasting rights . Where events are of great interest to the public, Article 15 requires any broadcaster holding exclusive broadcasting rights to provide access to the signal for the purpose of making short news reports and stipulates that compensation for the holder of the exclusive rights must not exceed the additional costs directly incurred in providing access to the signal. The Court of Justice held that these provisions violated neither the freedom to conduct a business nor the principle of equal treatment and were not disproportionate to the aims pursued, i.e. striking the right balance between contractual freedom and the freedom of citizens to receive information .

Case T-69/99 Danish Satellite TV [2000] ECR II-4039, LawLex200900001384JBJ.

Case C-412/93 Edouard Leclerc-Siplec v TF1 Publicité [1995] ECR I-179, LawLex200900000745JBJ: prohibition in a Member State of advertising for a certain type of distribution on condition that the rule only applies to operators established on that territory.

Case C-222/07 Unión de Televisiones Comerciales Asociadas v Administración General del Estado [2009] ECR I-1407, LawLex200900002022JBJ.

Case C-34/95 Konsumentombudsmannen v De Agostini [1997] ECR I-3843, LawLex200900000391JBJ.

Case C-204/11 P FIFA v Commission, Judgment of 18 July 2013, LawLex201300001167JBJ. 

Case T-33/01 Infront WM [2005] ECR II-5897, LawLex200900001348JBJ, upheld by ECJ in Case C-125/06 P Infront WM [2008] ECR I-1451, LawLex200900000458JBJ.

Case C-283/11 Sky Österreich GmbH, Judgment of 22 January 2013, LawLex201300000100JBJ.

European Business Law

142. Exceptions

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

142. Exceptions

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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au contenu exclusif Livv – juristes d’entreprise