CJEU, 3rd chamber, September 22, 2011, No C-244/10

THE COURT OF JUSTICE OF THE EUROPEAN UNION (Third Chamber),

1 These references for preliminary rulings concern the interpretation of 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 (OJ 1989 L 298, p. 23), as amended by Directive 97/36/EC of the European Parliament and of the Council of 30 June 1997 (OJ 1997 L 202, p. 60) ('the Directive').

2 The references have been made in proceedings between Mesopotamia Broadcast A/S METV ('Mesopotamia Broadcast') and Roj TV A/S ('Roy TV'), two Danish companies, on one hand, and the Federal Republic of Germany, on the other, concerning a decision to prohibit their activities on account of the nature of the television broadcasts produced by those companies.

Legal context

European Union legislation

3 Under Article 1(b) of the Directive 'broadcaster' means 'the natural or legal person who has editorial responsibility for the composition of schedules of television programmes ... and who transmits them or has them transmitted by third parties'.

4 Article 2 of the Directive provides:

'1. Each Member State shall ensure that all television broadcasts transmitted by broadcasters under its jurisdiction comply with the rules of the system of law applicable to broadcasts intended for the public in that Member State.

2. For the purposes of this Directive the broadcasters under the jurisdiction of a Member State are:

- those established in that Member State in accordance with paragraph 3;

...

3. For the purposes of this Directive, a broadcaster shall be deemed to be established in a Member State in the following cases:

(a) the broadcaster has its head office in that Member State and the editorial decisions about programme schedules are taken in that Member State;

...'

5 Article 2a of the Directive provides:

'1. Member States shall ensure freedom of reception and shall not restrict retransmissions on their territory of television broadcasts from other Member States for reasons which fall within the fields coordinated by this Directive.

2. Member States may, provisionally, derogate from paragraph 1 if the following conditions are fulfilled:

(a) a television broadcast coming from another Member State manifestly, seriously and gravely infringes Article 22(1) or (2) and/or Article 22a;

(b) during the previous 12 months, the broadcaster has infringed the provision(s) referred to in (a) 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 the measures it intends to take should any such infringement occur again;

(d) consultations with the transmitting Member State and the Commission have not produced an amicable settlement within 15 days of the notification provided for in (c), and the alleged infringement persists.

The Commission shall, within two months following notification of the measures taken by the Member State, take a decision on whether the measures are compatible with Community law. If it decides that they are not, the Member State will be required to put an end to the measures in question as a matter of urgency.

3. Paragraph 2 shall be 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.'

6 Article 3(1) and (2) of the Directive provides:

'1. Member States shall remain free to require television broadcasters under their jurisdiction to comply with 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 effectively comply with the provisions of this Directive.'

7 Articles 22 and 22a of the Directive are part of Chapter V thereof, entitled 'Protection of minors and public order'. Article 22(1) and (2) of the Directive state:

'1. Member States shall take appropriate measures to ensure that television broadcasts by broadcasters under their jurisdiction do not include any programmes which might seriously impair the physical, mental or moral development of minors, in particular programmes that involve pornography or gratuitous violence.

2. The measures provided for in paragraph 1 shall also extend to other programmes which are likely to impair the physical, mental or moral development of minors, except where it is ensured, by selecting the time of the broadcast or by any technical measure, that minors in the area of transmission will not normally hear or see such broadcasts.'

8 Article 22a of the Directive states as follows:

'Member States shall ensure that broadcasts do not contain any incitement to hatred on grounds of race, sex, religion or nationality.'

National legislation

9 Paragraph 9(1) of the Basic Law of the Federal Republic of Germany (Grundgesetz für die Bundesrepublik Deutschland) ('the Basic Law'), guarantees the freedom of association, and defines in subparagraph 2 the circumstances in which an association is prohibited. The latter states as follows:

'Associations whose purposes or activities infringe criminal laws, or which conflict with the constitutional order or the principles of international understanding are prohibited.'

10 The Law governing the public law of associations (Gesetz zur Regelung des öffentlichen Vereinsrechts BGBl. I 1964, p. 593) of 5 August 1964, as amended by Paragraph 6 of the Law of 21 December 2007 (BGBl. I 2007, p. 3198) ('the Vereinsgesetz'), states in Paragraph 1:

'1. Associations may be freely established ...

2. A measure for maintaining security and public order may be adopted against associations abusing the freedom of association only under this Law.'

11 In Paragraph 2, that law defines the concept of association as follows:

'1. Associations within the meaning of this Law shall include all associations, regardless of their legal form, in which a majority of natural or legal persons have joined together on a long-term basis for a common purpose and who have agreed to organised decision-making procedures.

2. For the purpose of this Law the following are not associations:

1. Political parties ...

2. Political groups in the Bundestag and the Länd parliaments,

3. ...'

12 Paragraph 3 of that law governs prohibitions on associations in the following terms:

'1. An association may be treated as prohibited ... only if the authorities competent to prohibit it have determined by decision that its purposes or activities infringe criminal laws or that they conflict with the constitutional order or the principles of international understanding; the decision must order the dissolution of the association ... The prohibition involves in principle seizure and confiscation of:

1. the assets of the association,

2. debts owed by third parties,

3. the property of third parties in so far as the proprietor has deliberately promoted the anti-constitutional aims of the association by transferring to it the property or that the property is intended to further those aims.

...

3. The prohibition extends, except where it is expressly limited, to all organisations which are integrated within the association to the extent that they appear to be a branch of that association, having regard to all the actual relationships between them (sub-organisations). The prohibition extends to sub-organisations outside national territory which have a separate legal personality only if they are expressly mentioned in the decision.

...

5. The authorities competent to impose a ban may also base it on the acts of members of the association if:

1. there is a connection with the activity of the association or with its purpose,

2. the acts result from a collective decision, and

3. the circumstances suggest that they are tolerated by the association.'

13 Paragraph 14 of the Vereinsgesetz provides:

'Associations whose members or directors are all or the vast majority of which are foreign nationals may be prohibited ... subject to paragraph 2. Associations whose members or directors are all or the vast majority of which are nationals of a Member State of the European Union shall not be regarded as associations of foreign nationals. ...'

14 Paragraph 15 of the Vereinsgesetz is worded as follows:

1. Article 14 applies by analogy to associations having their registered office abroad (foreign associations) whose organisation or activities fall within the territorial scope of this Law. The Federal Interior Ministry is responsible for the imposition of prohibitions.

...'

15 Paragraph 18 of the Vereinsgesetz provides as follows:

'Prohibitions on associations which have their head office outside the geographical scope of this Law, but which have subsidiary organisations within that scope cover only the subsidiary organisations in that geographical scope. If the association has no organisation within the geographical scope of this Law, the prohibition applies to ... its activities in that scope.'

The disputes in the main proceedings and the question referred for a preliminary ruling

16 Mesopotamia Broadcast, a Danish holding company with its registered office in Denmark, is the holder of several Danish television licences. It operates, in particular, the television channel Roj TV which is also a Danish company. The latter broadcasts programmes by satellite, mainly in Kurdish, throughout Europe and the Middle East. It commissions programmes from, among others, a company established in Germany.

17 In 2006 and 2007 government authorities in Turkey lodged complaints with the Danish Radio and Television Board, which ensures, in that Member State, the application of the national rules implementing the provisions of the Directive. The Turkish authorities complained that, by its programmes, Roj TV supported the objectives of the Kurdistan Workers Party ('the PKK'), which is classified as a terrorist organisation by the European Union.

18 The Danish Radio and Television Board gave a ruling on those complaints by decisions of 3 May 2007 and 23 April 2008. It held that Roj TV had not infringed the Danish rules implementing Articles 22 and 22a of the Directive. The Committee observed, in particular, that Roj TV's programmes did not incite hatred on grounds of race, sex, religion or nationality. It took the view that Roj TV's programmes merely broadcast information and opinions and that the violent images broadcast reflected the real violence in Turkey and the Kurdish areas.

19 By a decision of 13 June 2008, addressed to Mesopotamia Broadcast and Roj TV, the German Federal Interior Ministry, taking the view that the operation of the Roj TV television channel by Mesopotamia Broadcast conflicts with the 'principles of international understanding' within the meaning of the Vereinsgesetz, read in conjunction with the Basic Law, prohibited Mesopotamia Broadcast from carrying out, through the agency of Roj TV, any activities falling within the scope of the Vereinsgesetz. It also prohibited Roj TV from carrying out its activities.

20 On 9 July 2008, Mesopotamia Broadcast and Roj TV each brought an action before the Bundesverwaltungsgericht seeking to have that decision set aside.

21 Before the Bundesverwaltungsgericht, the applicants submitted that their activities in the domain of cross-border television fell within the provisions of the Directive. According to those provisions, only the Kingdom of Denmark, as the Member State in which Mesopotamia Broadcast and Roj TV are established, may exercise control over those activities. Any other control is, in principle, prohibited. It is true that the Directive allows, by way of derogating measures, a secondary control. However, the conditions for the application of such measures are not satisfied in the cases in the main proceedings.

22 The Federal German Government argues, before the Bundesverwaltungsgericht, that the television broadcasting activities of Mesopotamia Broadcast and Roj TV fall within the scope of the Vereinsgesetz. Those two companies should be regarded as promoting the PKK in Germany by their activities.

23 The German Federal Government also submitted that the ground for the prohibition in the main proceedings, based on the infringement of the 'principles of international understanding', was based on the fact that Roj TV's programmes called for the resolution of the differences between Kurds and Turks by violence, including in Germany, and that it supported the efforts of the PKK to recruit young Kurds for the guerrilla war against the Republic of Turkey.

24 Furthermore, the German Federal Government stated that the provisions of the Directive did not apply to the general rules of the Member States on criminal or police matters or to the Law on associations, even if those rules are capable of producing effects on television broadcasting activities.

25 The Bundesverwaltungsgericht, after having decided to view a selection of extracts of Roj TV's television programmes, took the view that those programmes are clearly biased in favour of the PKK, reflecting to a large extent the militaristic and violent approach, with the consent of the directors of Mesopotamia Broadcast. That company attempts to justify, via its channel Roj TV, the armed struggle led by the PKK. Roj TV does not report the conflict impartially but supports the PKK's use of guerrilla units and terrorist attacks by adopting the latter's point of view and propagating a cult of heroes and martyrs with respect to fallen combatants. Mesopotamia Broadcast and Roj TV thereby play a role in inciting violent confrontations between persons of Turkish and Kurdish origin in Turkey and in exacerbating tensions between Turks and Kurds living in Germany.

26 The Bundesverwaltungsgericht took the view that the prohibition in question in the main proceedings could be based on the ground relating to the infringement of the principles of international understanding within the meaning of Paragraph 3(1) of the Vereinsgesetz, read in conjunction with Paragraph 9(2) of the Basic Law. That court therefore asks whether and, if so, in what circumstances, the application of that ground for a prohibition is covered by the areas coordinated by the Directive.

27 In those circumstances the Bundesverwaltungsgericht decided to stay proceedings and to refer the following question to the Court of Justice for a preliminary ruling:

'Does and, if so, under what circumstances, national legislation concerning the prohibition of an association for infringement of the principles of international understanding fall within the field coordinated by the Directive, and is it thus precluded by Article 2a of the Directive?'

The question referred for a preliminary ruling

28 By its question, the Bundesverwaltungsgericht asks essentially whether Article 22a of the Directive must be interpreted as meaning that it precludes a Member State, in accordance with general legislation, such as the Vereinsgesetz, read in conjunction with the Basic Law, from taking measures with regard to a television broadcaster established in another Member State on the ground that that broadcaster's activities and objectives run counter to the prohibition on infringing the principles of international understanding.

Preliminary observations

29 It is clear from the title of the Directive that it seeks to coordinate certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities in order to remove obstacles to the freedom to provide broadcasting services within the European Union.

30 Recital 1 in the preamble to Directive 97-36 states that Directive 89-552 constitutes the legal framework for television broadcasting in the internal market, which, according to recital 4 in the preamble to Directive 97-36, is to help safeguard the free movement of such services in the European Union.

31 It is also clear from recitals 9 and 10 in the preamble to Directive 89-552 that the obstacles which the Community legislature intended to abolish are those which result from disparities existing between the provisions of the Member States concerning the pursuit of broadcasting activities and of distribution of television programmes.

32 It follows that the fields coordinated by the Directive are coordinated only in so far as television broadcasting, as defined in Article 1(a), is concerned as such (see Joined Cases C-34-95 to C-36-95 De Agostini and TV-Shop [1997] ECR I-3843, paragraph 26).

33 Finally, it is clear from recital 8 in the preamble to Directive 89-552 that the law applied to the broadcasting and distribution of television services is also a specific manifestation of a more general principle, namely the freedom of expression as enshrined in Article 10(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950. Furthermore, it follows from the wording of recital 15 in the preamble to Directive 97-36 that, Article F(2) of the EU Treaty (now Article 6(2) EU) that the European Union is to respect the rights, freedoms and principles laid down in the Charter of Fundamental Rights of the European Union, so that any measure aimed at restricting the reception and/or suspending the retransmission of television broadcasts must be compatible with the abovementioned principles.

34 It should also be recalled that the Directive does not completely harmonise the rules relating to the areas to which it applies, but that it lays down minimum rules for broadcasts which emanate from the European Union and which are intended to be received within it (see, Case C-222-07 UTECA [2009] ECR I-1407, paragraph 19 and the case-law cited).

35 The Directive establishes, therefore, the principle of recognition, by the receiving Member State, of the control function of the Member State of origin with respect to the television broadcasts from broadcasters falling within its competence. Article 2a(1) of the Directive provides that Member States are to ensure freedom of reception and must not restrict retransmissions on their territory of television broadcasts from other Member States for reasons which fall within the fields coordinated by the Directive.

36 In that connection, the Court stated that it is solely for the Member State from which television broadcasts emanate to monitor the application of the law of the originating Member State applying to such broadcasts and to ensure compliance with Directive 89-552, and, second, that the receiving Member State is not authorised to exercise its own control for reasons which fall within the fields coordinated by the Directive (see, to that effect, Case C-11-95 Commission v Belgium [1996] ECR I-4115, paragraphs 34 and 86, and De Agostini and TV-Shop, paragraph 27).

37 However, it is clear from the non-exhaustive character of the Directive with regard to areas relating to public order, public morality or public security that a Member State is free to apply to the activities carried out by broadcasters on its territory generally applicable rules concerning those fields, in so far as those rules do not hinder retransmission.

Interpretation of Article 22a of the Directive

38 Having regard to the question submitted to the Court, in this case whether the ground of prohibition, based on infringement of the principles of international understanding, must be regarded as being included in the concept of 'incitement to hatred on grounds of race, sex, religion or nationality' within the meaning of the Directive and, as a consequence, falls within the fields coordinated by it, it must be observed, first, that the Directive does not contain any definition of the terms referred to in Article 22a thereof.

39 Furthermore, and as stated in point 63 of the Advocate General's opinion, the drafting history of Directives 89-552 and 97-36 does not contain any relevant information relating to the scope of the concept of 'incitement to hatred', and confirms that the European legislature intended to lay down, in Article 22a of the Directive, a ground for prohibition based on public order considerations which would be distinct from the grounds relating particularly to the protection of minors.

40 It follows that the scope of Article 22a of the Directive must be determined by considering the usual meaning in everyday language of the terms used in that article, while also taking into account the context in which they occur and the purposes of the rules of which they are part (see, Case C-336-03 easyCar [2005] ECR I-1947, paragraph 21 and the case-law cited).

41 As regards the words 'incitation' and 'hatred', it must be observed that they refer, first, to an action intended to direct specific behaviour and, second, a feeling of animosity or rejection with regard to a group of persons.

42 Thus, the Directive, by using the concept 'incitement to hatred', is designed to forestall any ideology which fails to respect human values, in particular initiatives which attempt to justify violence by terrorist acts against a particular group of persons.

43 As regards the infringement of the principles of international understanding, as stated in paragraph 25 of the present judgment, Mesopotamia Broadcast and Roj TV, according to the referring court, play a role in stirring up violent confrontations between persons of Turkish and Kurdish origin in Turkey and in exacerbating the tensions between Turks and Kurds living in Germany, thereby infringing the principles of international understanding.

44 Consequently, it must be held that such behaviour is covered by the concept of 'incitement to hatred'.

45 Therefore, as the Advocate General observed in points 88 and 89 of his Opinion, compliance with the rule of public order laid down in Article 22a of the Directive must be verified by the authorities of the Member State which have jurisdiction over the broadcaster concerned, irrespective of the presence in that Member State of the ethnic or cultural communities concerned. The application of the prohibition laid down in Article 22a does not depend on the potential effects of the broadcast in question in the Member State of origin or in one Member State in particular, but only on the combination of the two conditions stipulated in that article, namely incitement to hatred and grounds of race, sex, religion or nationality.

46 Therefore, it follows from the foregoing that Article 22a of the Directive must be interpreted as meaning that facts such as those at issue in the main proceedings, covered by national legislation prohibiting infringements of the principles of international understanding, must be regarded as being included in the concept of 'incitement to hatred on grounds of race, sex, religion or nationality' laid down in that article.

The decision at issue in the main proceedings in the light of the judgment in De Agostini and TV-Shop

47 In order to enable the referring court to decide the dispute before it in the light of the interpretation of Article 22a of the Directive set out above, it is appropriate to refer to the judgment in De Agostini and TV-Shop, with respect to the relationship between the provisions of that directive concerning television advertising and sponsorship and national rules other than those specifically referring to the broadcast and distribution of programmes.

48 In paragraphs 33 and 34 of that judgment, the Court held that although the Directive provides that the Member States must ensure freedom of reception and are not to restrict retransmission on their territory of television broadcasts coming from other Member States on grounds relating to television advertising and sponsorship, it does not have the effect of completely and automatically excluding the application of such rules. Thus the Directive does not in principle preclude the application of national rules with the general aim of consumer protection provided that they do not involve secondary control of television broadcasts in addition to the control which the broadcasting Member State must carry out.

49 In paragraph 38 of that judgment, the Court also stated that the Directive does not preclude a Member State from taking, pursuant to general legislation on protection of consumers against misleading advertising, measures against an advertiser in relation to television advertising broadcast from another Member State, provided that those measures do not prevent the retransmission, as such, in its territory of television broadcasts coming from that other Member State.

50 That reasoning also applies to the legislation of a Member State which does not specifically concern the broadcast and distribution of programmes and which, in general, pursues a public policy objective without however preventing retransmission per se, on its territory, of television broadcasts from another Member State.

51 In that connection, it is apparent from the file submitted to the Court by the referring court and the explanations provided by the German Government during the oral discussion before the Court that the Vereinsgesetz does not specifically refer to broadcasters or to the broadcast or distribution of television programmes as such but concerns the activities of associations in general. Moreover, the operative part of the decision of the Federal Interior Ministry of 13 June 2008, which is based on that law, read in conjunction with the Basic Law, contains 11 points. In particular, it is clear from that decision that the operation of the television broadcaster Roj TV by Mesopotamia Broadcast infringes the principles of international understanding, that the television broadcaster Roj TV could no longer act within the territorial scope of the Vereinsgesetz and that that broadcaster was prohibited within the territorial scope of that law.

52 The German Government stated, in particular, in its written observations and its oral arguments before the Court that, although, by the decision of the Federal Interior Ministry of 13 June 2008, all the activities of the broadcaster at issue in the main proceedings were prohibited in Germany, that Member State was unable to prevent any repercussions in Germany of television broadcasts made abroad. Thus, the reception and private use of Roj TV's programme is not prohibited and remains in fact possible in practice. In particular, that Member State stated that while it does not prevent retransmissions on its territory from Denmark of television programmes made by that broadcaster, all activities organised by Roj TV or for the benefit of the latter in the Federal Republic of Germany are illegal on account of the prohibition on activity imposed by the decision of the Federal Interior Ministry of 13 June 2008. Therefore, the production of broadcasts and the organisation of events consisting in screening Roj TV's broadcasts in a public place, in particular in a stadium, and the sympathy actions taking place in Germany are prohibited.

53 Measures such as those mentioned in the previous paragraph do not, in principle, constitute an obstacle to retransmission per se, but it is for the referring court to determine the actual effects which follow from the prohibition at issue in the main proceedings as regards the television broadcasts made by the applicants in the main proceedings from another Member State by verifying whether that decision prevents retransmission per se in the Member State receiving those broadcasts.

54 In light of all of the foregoing considerations, the answer to the question referred is that Article 22a of the Directive must be interpreted as meaning that facts such as those at issue in the disputes in the main proceedings, covered by a rule of national law prohibiting infringements of the principles of international understanding, must be regarded as being included in the concept of 'incitement to hatred on grounds of race, sex, religion or nationality'. That article does not preclude a Member State from adopting measures against a broadcaster established in another Member State, pursuant to a general law such as the Vereinsgesetz, on the ground that the activities and objectives of that broadcaster run counter to the prohibition of the infringement of the principles of international understanding, provided that those measures do not prevent retransmission per se on the territory of the receiving Member State of television broadcasts made by that broadcaster from another Member State, this being a matter to be determined by the national court.

Costs

55 Since these proceedings are, for the parties to the main proceedings, a step in the actions pending before the national court, the decisions on costs are a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On those grounds, the Court (Third Chamber) hereby rules:

Article 22a of 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, as amended by Directive 97/36/EC of the European Parliament and of the Council of 30 June 1997, must be interpreted as meaning that facts such as those at issue in the disputes in the main proceedings, covered by a rule of national law prohibiting infringement of the principles of international understanding, must be regarded as being included in the concept of 'incitement to hatred on grounds of race, sex, religion or nationality'. That article does not preclude a Member State from adopting measures against a broadcaster established in another Member State, pursuant to a general law such as the Law governing the public law of associations (Gesetz zur Regelung des öffentlichen Vereinsrechts), of 5 August 1964, as amended by Paragraph 6 of the Law of 21 December 2007, on the ground that the activities and objectives of that broadcaster run counter to the prohibition of the infringement of the principles of international understanding, provided that those measures do not prevent retransmission per se on the territory of the receiving Member State of television broadcasts made by that broadcaster from another Member State, this being a matter to be determined by the national court.