Opinion of Advocate General

Mr President,

Members of the Court,

1. The questions submitted by the Raad van State concern the interpretation of Articles 59 and 67 of the Treaty and the First Directive of the Council of 11 May 1960 for the implementation of Article 67 of the Treaty (hereinafter the First Directive) and Council Directive 88/361/EEC of 24 June 1988 for the implementation of Article 67 of the EEC Treaty (hereinafter the Second Directive).

2. Referring to the Report for the Hearing for matters of detail, I will merely point out that the main provisions on which the system introduced by the Mediawet (a system with which this Court is not unfamiliar) was based were adopted in order to preserve a pluralistic and non-commercial broadcasting system. And it is precisely for that purpose that national broadcasting time is for the most part shared amongst the omroepverenigingen (broadcasting organizations), listeners' or viewers' associations having legal personality and comprising at least 150000 members, so that the programming reflects the various political, social and religious components of Dutch society. Furthermore, those organizations, whose financing is provided entirely by the State, are required to observe numerous conditions concerning both their structure and programme content. The Veronica Omroep Organisatie (hereinafter Veronica), the plaintiff in the main proceedings, is a broadcasting organization within the meaning of the Mediawet.

3. Veronica appealed against the measure imposed by the Commissariaat voor de Media to the Raad van State, which, in order to determine whether the prohibition of engaging in activities of the kind at issue was compatible with the relevant provisions of Community law, in particular Articles 59 and 67 of the Treaty, has sought a preliminary ruling from this Court.

4. In its first three questions, the national court asks whether the prohibition of engaging in activities such as investment by a broadcasting organization in a broadcasting station set up or to be set up in another Member State, and the provision of a bank guarantee by that broadcasting organization for a television station established in another Member State, involves a restriction of the free movement of capital (Question 1) or of the freedom to provide services (Question 2). And whether the prohibition imposed on the same broadcasting organization of drawing up a business plan and providing legal advice for a television station to be set up in another Member State involves a restriction of the freedom to provide services (Question 3).

5. That said, it is necessary to establish whether the prohibition contained in Article 57 of the Mediawet, which is not discriminatory and is imposed only on national broadcasting organizations, involves a restriction on the movement of capital and the provision of services, in breach of Articles 67 and 59.

6. In fact, the relevant Community legislation imposes no limitation in that respect. Suffice it to note that in the thirteenth recital in the preamble to 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, the directive is expressly described as not affect [ing] the responsibility of the Member States and their authorities with regard to the organization — including the systems of licensing, administrative authorization or taxation — financing and the content of the programmes; ... the independence of cultural developments in the Member States and the preservation of cultural diversity in the Community therefore remain unaffected.

7. That conclusion having been reached, it is unnecessary, for the purposes of the present case, to answer the last two questions. However, for the sake of completeness and in case the Court should take the opposite view, namely that the restrictions mentioned by Veronica are in principle contrary to Articles 59 and 67, it is necessary to consider whether

8. More delicate is the matter of the free movement of capital. Although I share the Commission's view that, for reasons of uniformity, it would be appropriate to apply the same rules as those which apply to goods and services, let me say straight away that I do not think that the possibility of justifying measures otherwise incompatible with Article 67 can be inferred from the text of Article 4 of the Second Directive, on the basis of which the Member States retain the right to take all the requisite measures to prevent infringements of their laws and regulations, inter alia in the field of taxation and prudential supervision of financial institutions, or to lay down procedures for the declaration of capital movements for purposes of administrative or statistical information. However, that right on the part of Member States may not have the effect of impeding capital movements carried out in accordance with Community law. In my opinion, Article 4 is concerned only with infringements of laws or internal regulations expressly relating to capital transactions and does not extend, as the Commission seems to think, to the possibility of prohibiting capital movements which in principle are lawful.

9. That said, it only remains to establish whether the prohibition laid down by Article 57(1) of the Mediawet may be justified by the need to preserve a pluralistic and noncommercial broadcasting system and whether it is proportionate in relation to the objective pursued.

10. In that connection, I would observe first of all that the fact that a national broadcasting organization contributes to the creation of, and maintains (significant) interests in, a television company established abroad, but broadcasting mainly towards the Netherlands, cannot be regarded as having no impact on the balance created by the Mediawet as between the various broadcasting organizations. Indeed, in such a situation the broadcasting organization in question will de facto have more broadcasting time than has been assigned to it — the time allocated is based on the number of members of each organization and is intended to ensure that all the social components are represented. Moreover, the other organizations will be placed at a disadvantage from the point of view of financing, as regards the part deriving from advertising revenue: and that seems to me not to be permissible, having regard to the particular financing arrangements of a system like the Dutch one. The activities undertaken by Veronica, viewed as a whole, are thus liable to undermine the pluralism which the law at issue was designed to safeguard.

Conclusion

1. 1. In the light of the foregoing considerations, I therefore suggest that the Court give the following answer to the questions submitted by the Raad van State:

1 Original language: Italian.

2 OJ, English Special Edition 1959-1962, p. 49.

3 OJ 1988 L 178, p. 5.

4 Staatsblaad 1987, p. 249.

5 The Court has given several judgments on the Dutch rules on the production and broadcasting of radio and television programmes: sec Case C-353/89 Conirnisiion v Netherlands [1991] ECR I-4069, Case C-288/89 Collectieve Anlennevoornemng Gouda [1991] ECR I-4007, and Case 352/85 Bond Van Adverteerden [1988] ECR 2085.

6 Council Directive of 17 November 1986 amending die First Directive for the implementation of Article 67 of tile Treaty (OJ 1986 L 332, p. 22).

7 OJ 1989 L 298, p. 23.

8 Case C-288/89 Collectieve Antennevoorziening Gouda, paragraph 24, and Case C-353/89 Commission v Netherlands, paragraph 42, both cited above.

9 Commisiioti v Ncīhertandi, paragraph 17, and (Joitdti, paragraph 13.

10 Case C-204/90 [1992] ECR I-249, paragraph 34.

11 Gouda, cited above, paragraph 23.

12 Case 33/74 [1974] ECR 1299, paragraph 13. To the same effect, sec the judgments in Case 115/78 Knoors [1979] ECR 399, Case 201/84 Commission v Germany [1986] ECR 3755, paragraph 22, and Case 130/88 Van de Bnl [1989] ECR 3039, paragraph 26.