Opinion of Advocate General Lenz delivered on 16 June 1994

1 Original language: German.

2 Since 1 November 1993 the EC Treaty in accordance will) the Treaty on European Union of 7 February 1992 (OJ 1992, C 224).

3 Judgment in Case 52/79 Debauve [1980] ECR 833.

4 Judgment in Case 33/74 Van Bmsbergen [1974] ECR 1299.

5 Judgment in Case 79/85 Segers [1986] ECR 2375.

6 Council Directive 89/522/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).

7 See the case-law discussed in sections 51 and 52 infra.

8 See the second paragraph of Article 59.

9 See the first paragraph of Article 59. For possible exceptions to this rule, see the judgments in Case C-145/89 Commission v France [1991] ECR I-659, Case C-180/89 Commission v Italy [1991] ECR I-709, Case C-198/89 Commission v Greece [1991] ECR I-727 and Case C-375/92 Commission v Spain [1994] ECR I-923. See also my Opinion in Case C-379/92 Peralta [1994] ECR I-3453, I-3456, paragraphs 74 to 77.

10 Judgments in Case 270/83 France v Commission [1986] ECR 273, paragraph 18, Case 79/85 Segers, cited in footnote 4, paragraph 13, and Case C-330/91 Commerzbank [1993] ECR I-4017, paragraph 13.

11 Written thus in the appellant's observations.

12 As regards possible cxeeptions, sec the case-law cited in footnote 8.

13 Expressly in the judgment in Case 155/73 Sacchi [1974] ECR 409, paragraph 6; implicitly in the judgments in Case C-260/S9 Ellnnhi Radwphonia Tikorassi [1991] ECR I-2925, paragraph 19 et seq., Case C-288/89 Collectieve Antennevoorzicnmg Gouda [1991] ECR I-4007. Case C-353/89 Commission v Netherlands [1991] ECR I-4069 and Case C-148/91 Veronica Omroep Organisatie [1993] ECR I-487.

14 Judgment in Case 52/79 Debanvc, cited in footnote 2, paragraph 8.

15 Judgment in Debanvc, cited in footnote 2.

16 Judgment in Case 352/85 Bond van Adverteerders v Netherlands State [1988] ECR 2035, paragrapli 14.

17 The subsequent case-law is similar, for example, the judgments in Case 205/84 Commission v Germany [1986] ECR 3755, Case C-211/92 Commission v Belgium [1992] ECR I-6757, paragraph 12, and Case C-148/91 Veronica Omroep Organisatie, cited in footnote 12, paragraph 12.

18 Case 33/74, cited in footnote 3, paragraph 13; my emphasis.

19 Sec the Commission's observations, sections 12 and 13, at p. 10 et seq.

20 Quoted in section 24 utpnt.

21 Judgment in Case 39/75 Comen [1975] ECR 1547, in Case 115/78 Knoors [1979] ECR 399, in Case 205/84 Commission v Germany, cited in footnote 16, in Case 130/88 Van tïe Bijl [1989] ECR 3039 and in Case C-148/91 Veronica Omroep Organisatie, cited in footnote 12.

22 According to the Van Binsbergen case-law, the application of rules on professional conduct objectively comes into consideration only on the proviso that first the activity of the provider of services is entirely or principally directed towards [the] territory of that country and, secondly, he uses the freedom to provide services for the purpose of avoiding the professional rules of conduct which would be applicable to him if he were established within that State (see paragraph 13 of the judgment).

23 Judgment in Joined Cases C-297/88 and C-197/89 Dzodzt [1990] ECR I-3763, paragraph 29 et seq.

24 Judgment in Van Binsbergen, cited in footnote 3, paragraph 10; cf. to the same effect the judgment in Case 39/75 Coenen [1975] ECR 1547, paragraph 6.

25 Judgment in Van Binsbergen, paragraph 23.

26 Judgment in Case C-288/89 Collectieve Antennevoorziening Gouda, cited in footnote 12, paragraph 10.

27 Cf. my Opinion in Case C-154/89 (judgment in Commission v France [1991] ECR I-659, at I-666, paragraph 27).

28 See the judgment in Case C-288/89 Collectieve Antennevoorziening Gouda, cited in footnote 12, paragraph 11.

29 Cf. the Opinion of Advocate General Jacobs in Case C-76/90 (judgment in Säger [1991] ECR I-4221, at I-4229, paragraphs 20, 21 and 22).

30 Judgments in Case 278/80 Webb [1981] ECR 3305, paragraph 6, and in Case 205/84 Commission v Germany, cited in footnote 16.

31 Cf. my Opinion in Case C-154/89 Commission v France, cited in footnote 26, paragraph 9.

32 Judgment in Case 205/84 Commission v Germany, cited in footnote 16, paragraph 27; judgment in Case 279/80 Webb, cited in footnote 29, paragraph 7.

33 Judgment in Case 120/78 Rewe-Zentral v Bundesmonopolverwaltung [1979] ECR 649.

34 Cf. lhe judgment in C-288/89 Collectieve Antennevoorzlemng Gouda, cited in footnote 12, paragraph 4, where other categories are listed together with references to the relevant case-law.

35 Judgment in Joined Cases 110 and 111/78 Ministère Public anti Another v Van Wesemael [1979] ECR 35, paragraph 30; judgment in Case 205/84 Commission v Germany, cited in footnote 16, paragraph 27.

36 Opinion in Case C-76/90 Sager, cited in footnote 28, paragraph 29.

37 For instance. Case 205/84 Commission v Gennany, cited in footnote 16, paragraph 41 et seq. and Case C-288/89 Collectieve Antennevoorztening, cited in footnote 12, paragraph 15.

38 Cited in footnote 12.

39 Cited in footnote 12.

40 Cited in footnote 12.

41 Veronica Omroep Oiganisatie, paragraph 9, where reference is made to Commission v Netherlands, paragraphs 3, 29 and 30, and Collectieve Antennevoorzienuig Gouda, paragraphs 22 and 23 (all cited in footnote 12).

42 Veronica Omroep Organisatie, paragraph 10, where reference is made to Commission v Netherlands, paragraphs 41 and 42, and Collectieve Antennevoorziening Gouda, paragraphs 23 and 24 (all cited in footnote 12).

43 Case C-353/89 Commission v Netherlands, cited in footnote 12, paragraph 40 et seq.

44 Cited in footnote 5.

45 Cf. inter alia the twelfth, fourteenth and fifteenth recitals in the preamble to the directive: Whereas it is consequently necessary and sufficient that all broadcasts comply with the law of the Member State from which they emanate; Whereas it is necessary, in the common market, that all broadcasts emanating from and intended for reception within the Community and in particular those intended for reception in another Member State, should respect the law of the originating Member State applicable to broadcasts intended for reception by the public in that Member State and the provisions of this Directive; Whereas the requirement that the originating Member State should verify that broadcasts comply with national law as coordinated by this Directive is sufficient under Community law to ensure free movement of broadcasts without secondary control on the same grounds in the receiving Member States ....

46 Article 25 of Directive 89/552.

47 The possibility for Member States to lay down stricter provisions for television broadcasters subject to their jurisdiction is preserved even following the entrv into force of Directive 85/552. See Article 3(1) of Directive 89/552 and the thirteenth recital in the preamble thereto: Whereas this Directive lays down the minimum rules needed to guarantee freedom of transmission in broadcasting; whereas, therefore, it does not affect 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 programmes; whereas the independence of cultural developments in the Member States and the preservation of cultural diversity in the Community therefore remain unaffected.

48 Judgment in Case 229/83 Leclerc v Au blé vert [1985] ECR 1, paragraph 27 and operative part. To the same effect, see also the judgments in Case 299/83 Leclerc v Syndicat de Librairies de Loire-Océan [1985] ECR 2515 and in Case 95/84 BonelL v Darras and Tostam [1986] ECR 2253.

49 Judgment in Case 39/86 Lair v Universität Hannover [1988] ECR 3161, paragraph 43.

50 Judgment in Case 115/78 Knoors v Secretary of State for Economic Affairs [1979] ECR 399, paragraph25.

51 Quoted verbatim in section 24 supra.

52 See paragraph 13 of the judgment, cited in footnote 3. The Court repeated this verbatim in Coenen, cited in footnote 20, paragraphs 8 to 11, and in Commission v Germany, cited in footnote 16, paragraph 22.

53 Judgment in Van de Bijl, cited in footnote 20, paragraph 26.

54 Cited in footnote 12, paragraph 12 of the judgment.

55 In the judgment in Case C-211/91 Commission v Belgium [1992] ECR I-6757, paragraph 12, the application of the principles on circumvention was considered but refused.

56 The Commission's answer to written question No 1101/89 is worthy of attention in this regard. According to that answer, during the discussions in the Council preceding the adoption of Directive 89/552, the Commission stated, referring to the judgment in Van Binsbergen, that, in carrying out its appointed duties and interpreting the law, it would ensure that the case-law of the Court of Justice of the European Communities regarding avoidance of national rules was respected (OJ 1990 C 125, p. 34).

57 The national court also seems to have proceeded on the basis of this assessment, since it submitted the facts found by it for assessment by the Court of Justice by way of preliminary ruling.

58 Judgments in France v Commission, cited in footnote 9, paragraph 18, and in Segers, cited in footnote 4, paragraph 13.

59 The Queen v The Secretary of State for Transport, Ex parte Factortame Limited and Others [1991] ECR I-3905, paragraph 33.

60 Factortame, paragraph 32.

61 Judgment in Case 250/85 Brother v Council [1988] ECR 5683, paragraph 16.

62 Judgment in Case C-260/89 Ellmmki Radiophonia Tieco- rassi, cited in footnote 12, paragraphs 42, 43 and 44.

63 See p. 11 of the German Government's observations.

64 European Court of Human Rights, judgment of 28 March 1990 No 14/1988/158/214 Grapperà Radio AG and Others v Switzerland, Publications of the ECHR, Series A, Vol. 173, at paragraph 72.

65 Judgment in Joined Cases 60 and 61/84 Cméthèqiie v Fédération nationale des cinémas français [19S5] ECR 2605, paragraph 26.

66 See the judgment in Case C-353/89 Commission v Netherlands, cited in footnote 12, paragraph 30, where reference is made to the judgment in Case 4/73 Nold v Commission [1974] ECR 491, paragraph 13.

67 Cited in the preceding footnote, paragraph 13.

68 Judgment in Case 222/84 Johnston v Chief Constable of the Royal Ulster Constabulaiy [1986] ECR 1651, paragraph 18.

69 Judgment in Case 5/88 Wachauf v Germany [1989] ECR 2609, paragraph 19.

70 Judgment in Case C-260/S9 Elliniki Radiophonia Tileorassi, cited in footnote 12, paragraph 41.

71 Judgment in Joined Cases 60 and 61/84 Cinétheque v Fédération nationale des cinémas français, cited in footnote 64, paragraph 26.

72 Judgment in Case 12/86 Demirel v Stadt Schwäbisch Gmund [1987] ECR 3719, paragraph 28.

73 Judgment in Elliniki Radiophonia Tileorasst, cited in footnote 12, paragraph 42.

74 Judgment in Elliniki Radiaphonia Tileorassi, paragraph 43.

75 Judgment in Elliniki Radiophonia Tileorassi, paragraph 44.

76 Judgment in Joined Cases 46/87 and 227/88 Hoechst v Commission [1989] ECR 2859.

77 Hoechst v Commission, paragraph 18.

78 Cited in footnote 63.

79 Paragraph 73 of the judgment.

80 Case 1803/91 Cable Music Europe Ltd v Netherlands.