Opinion of Mr Advocate General Tesauro delivered on 18 April 1991

1 Original language: Italian.

2 The Law of 21 April 1987 regarding the financing of radio and television programmes, tne radio and television licence fee and press subsidies (Staatiblad No 249 of 4. 6. 1987).

3 The Dutch Government has, in fact, presented a draft law to the Dutch parliament amending the Mediawet, whereby the obligation laid down in Article 61 would be abolished from I January 1991 with regard to television and from 1 January 1992 with regard to radio. This amendment has not yet been adopted. However, as far as television programmes are concerned, it is already in operation de facto, since the obligation in question has been set at 0%.

4 In this respect I would refer lo the judgment in Case 72/83 Campus Oil [1984] ECR 2727, in which the Court stated, with regard to a national measure obliging all importers to purchase a certain percentage of their requirements for petroleum products from a national refinery, that such an obligation limits to that extent the possibility of importing the same product. It thus has a protective effect by favouring national production and, by the same token, works to the detriment of producers in other Member States (paragraph 16). The Court held that the measure was therefore incompatible with Article 30.

5 Case C-21/88 Du Pom de Nemours [1990] ECR I-889, paragraphs 11 to 14.

6 Case 202/88 France v Commission [1991] ECR I-1223, paragraph 51.

7 Case 352/85 Bond van Adverteerders [1988] ECR 2085, paragraph 32.

8 The Court has held on several occasions that since Article 56 contains a derogation from a fundamental principle of the Treaty (Article 3(c)), it must be interpreted rcstrictively and therefore does not apply unless there is a genuine and sufficiently serious threat to the requirements of public policy affecting one of the fundamental interests of society (Case 30/77 Bouchereau [1977] ECR 1999, paragraph 35) and the measures adopted must be proportionate and strictly necessary with regard to the interests which it is sought to safeguard (Joined Cases 115 and 116/81 Adorn and Comimille [1982] ECR 1665, paragraph 9).

9 In this respect I would observe that, in any event, the noncommercial nature of a broadcasting system cannot be regarded per se as an overriding requirement capable of justifying a restriction on the freedom to provide services; it is merely a means of guaranteeing pluralism. Consequently, the noncommercial nature of a broadcasting system may justify restrictions solely in so far as they are essential in order to pursue an objective that is worthy of protection at the Community level, such as an objective of cultural policy designed to ensure pluralism.

10 See, for example, Case 180/89 Commission v Italy [1991] ECR I-709, where the Court held that the general interest... in the conservation of the national historical and_ artistic heritage can constitute an overriding reason justifying a restriction on the freedom to provide services (paragraph 20).

11 Case C-202/88 France v Commission, cited above, paragraph 22.

12 Sec to this effect the Opinion of Mr Advocate General Jacobs in Case C-76/90 Säger, delivered on 21 February 1991 and the Opinion of Mr Advocate General Lenz in the tourist guide cases (Case 154/89 Commission v France; Case 180/89 Commission v Italy; Case 198/89 Commission v Greece [1991] ECR I-727). The Opinion of Mr Advocate General Van Gerven in Case C-340/89 Vlassopoulou, delivered on 28 November 1990, also contains interesting observations on this point, although that case concerns the right of establishment.

13 Judgment in Case 33/74 Van Binsbergen v Bedrijfsvereniging Metaalnijverheid [1974] ECR 1299.

14 See, most recently, Case 205/84 Commission v Germany [1986] ECR 3755, paragraph 25.

15 Judgments in Case 205/84 Commission v Germany, cited above, paragraph 25, and in Case 180/89 Commission v Italy [1991] ECR I-709, paragraph 15.

16 Commission y Italy, cited above, paragraph 15.

17 Tizzano, La libera circolazione dei servizi nella CEE. Profili generali Professioni e servizi nella CEE (ed. Tizzano), Padua, 1985, p. 20 et seq.

18 With regard to the three conditions mentioned see Joined Cases 110 and 111/78 Van Wesemael [19791 ECR 35; Case 279/80 Webb [1981] ECR 3305; Case 205/84 Commission v Germany, cited above, paragraphs 27 and 29; and most recently, Case 180/89 Commission v Italy, cited above, paragraphs 17 and 18.

19 Joined Cases 62 and 63/81 Seco v Evi [1982] ECR 223, paragraph 8.

20 Case 52/79 Procureur äu Äo/v Debauve [1980] ECR 833.

21 In that case the Court ruled on the interpretation of the compatibility of Article 59 of the Treaty with Article 4 of the Kabelregeling, which was replaced by Article 66 of the Mediawet with regard to the aspects in issue here.

22 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) comes into force on 3 October 1991.

23 Paragraph 17.

24 Sec, most recently, the judgments in Case 205/84 Commission v Germany, cited above, paragraph 33, and Case 180/89 Commission v Italy, citea above, paragraph 20.