Opinion of Advocate General
Mr President,
Members of the Court,
1. In the present application the Commission asks the Court to find that the Kingdom of Belgium has failed to meet its obligations under Articles 52, 59, 60 and 221 of the EEC Treaty as regards the current regulations in the Flemish Community for the broadcasting of television programmes. The Commission contests four aspects of the regulations in question: (a) the prohibition on the relaying by cable of television programmes broadcast in a language other than that of the Member State from which they originate; (b) the need for prior authorization to transmit via a cable television network television programmes broadcast by non-public broadcasting organizations established in other Member States; (c) the conditions relating to the subscription of the capital of the nonpublic broadcasting company; and (d) the definition of the concept of own cultural productions.
The requirement concerning the language of the programmes
2. The complaint under consideration concerns the prohibition laid down in Article 3 of the Decree of 28 January 1987 on the transmission in Flanders, through the intermediary of the operators of cable television networks, of television programmes broadcast by radio and television broadcasting organizations in other Member States if the programme is not in the language or one of the languages of the Member State in which the broadcasting organization is established. That prohibition, which does not apply to programmes produced by Belgian television broadcasters, is considered by the Commission to be incompatible with the rules governing the provision of services.
3. That said, and moving on to the substance of the question, the first point to bear in mind is that, as the Court has consistently held, Articles 59 and 60 prescribe the abolition of any discrimination against a person providing services on account of his nationality or the fact that he is established in a Member State other than the one in which the service is provided. Moreover, in the Bond van Adverteerders judgment the Court expressly stated that the transmission of programmes by cable constitutes a service within the meaning of Articles 59 and 60 of the Treaty.
4. The Belgian Government maintains, however, albeit with due timidity, that the measure in question is not illegal in that, as recognized by the Court itself in the Van Binsbergen judgment, a Member State has the right to take measures to prevent a person providing services whose activity is entirely or principally directed towards its territory from exercising the freedom guaranteed by Article 59 for the purpose of avoiding the professional rules of conduct which would be applicable to him if he were established within the State in question.
5. As regards the grounds on which the Belgian Government relies to justify such a measure, I note first of all that, according to the established case-law of the Court, national rules which are not applicable to services without distinction as regards their origin and which are therefore discriminatory are compatible with Community law only if they can be brought within the scope of an express derogation.
The other complaints
6. As regards the other measures contested by the Commission, that is to say (b) the requirement of prior authorization in order to transmit, via a cable television network, television programmes broadcast by nonpublic broadcasting organizations established in other Member States, (c) discrimination in the terms for the subscription of the capital of the non-public broadcasting company, and (d) the definition of the concept of own cultural productions, it is sufficient to note that these are measures whose manifestly discriminatory nature is not disputed by the Belgian Government.
7. In the light of the foregoing considerations, I therefore propose that the Court should grant the application and order the defendant State to pay the costs.
1 Original language: Italian.
2 Decree on the transmission of radio and television programmes on radio and cable television networks and on the approval of non-public television broadcasting companies (Moniteur Belge, 19 March 1987, p. 4196).
3 Order on the proportion of own cultural productions in the programmes of non-public television broadcasting companies (Moniteur Belge, 1 June 1938, p. 7496).
4 Case 352/85 Bond van Adverteerders v Netherlands [1988] ECR 2085, paragraphs 14-16; see also the judgments in Case 288/89 Collectieve Antennevoorziening Gouda [1991] ECR I-4007 and Case 353/89 Commission v Netherlands [1991] ECR I-4069.
5 Flemish broadcasters are permitted to broadcast, on the national territory, programmes produced in a language other than French or Dutch.
6 In Case 33/74 Van Binsbergen [1974] ECR 1299, paragraph 13. See also the judgments in Case 205/84 Commission v Germany [1986] ECR 3755, paragraph 22, and Case 130/88 Van de Bijl [1989] ECR 3039, paragraph 26.
7 Judgment in Case 352/85 Bond van Adverteerders, cited above, paragraph 32.
8 The Court has stated on several occasions that the provision of Article 56 entailing a derogation from a fundamental prin-ciplc_ oí the Treaty (Article 3(c)) must be interpreted in a restrictive manner, for which reason its application requires there to be a genuine and sufficiently serious threat affecting one of the fundamental interests of society (Judgment in Case 30/77 Regina v Boucherean [1977] ECR 1999, paragraph 35) andatile adoption of measures that are proportionate to and strictly necessary in relation to the interests they arc intended to safeguard (sec the judgment in Joined Cases 115 and 116/81 Adoni and Cornnaille v Belgium [1982] ECR 1665, paragraph 9).