Curbs on satellite and cable TV broke EU law

LAW REPORT v 18 October 1996

Commission of the European Communities v United Kingdom (case C-222/94); Commission v Belgium (Case C-11/95); European Court of Justice; 10 September 1996

No broadcaster should be subject to regulation by more than one European Union country. A satellite broadcaster came within the jurisdiction of a member state by being established there as a company, not by transmitting from within its boundaries, unless as a company it was established outside the Union.

In two judgments given the same day, the European Court of Justice declared that both the United Kingdom and the Kingdom of Belgium had failed to fulfil their obligations under Council Directive 89/552/EEC of 3 October 1989 on the coordination of certain provisions concerning the pursuit of television broadcasting activities.

The Directive provided by article 2:

1. Each Member State shall ensure that all television broadcasts transmitted by broadcasters under its jurisdiction, or by broadcasters who, while not being under the jurisdiction of any Member State, make use of a frequency or satellite capacity granted by, or ... situated in, that Member State, comply with the law applicable to broadcasts intended for the public in that Member State.

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

An exception under article 2 was provided in respect of broadcasts which infringed article 22, by including

programmes which might seriously impair the physical, mental or moral development of minors, in particular those that involve pornography or gratuitous violence.

Such programmes could be suspended by the receiving member state in accordance with Community law.

In Commission v UK, it was contended that the provisions of the Broadcasting Act 1990 contravened the Directive by, inter alia, purporting to assert jurisdiction through licensing over non-domestic services regardless of the broadcaster's place of establishment.

Section 43 of the 1990 Act drew a distinction between two categories of "satellite television services" namely domestic and non-domestic, both of which required a licence.

A "domestic" satellite service meant one which transmitted programmes by satellite from a place in the UK on a frequency allocated to the UK and for general reception in the UK.

A "non-domestic" satellite service meant one which transmitted programmes by satellite (a) from a place in the UK, for general reception in the UK or in a member state otherwise than on an allocated frequency, or (b) from a place outside the UK or any member state for general reception in the UK or in a member state where the programme material was provided by a person in the UK who had editorial control over programming content.

The court upheld the Commission's complaints that section 43 did not comply with article 2 of the Directive in four respects, in that it (i) applied criteria other than that of establishment for determining which broadcasters fell within the UK's jurisdiction; (ii) applied a criterion which was not relevant for the purposes of such jurisdiction, namely that of reception; (iii) failed to make third-country broadcasts falling under the UK's jurisdiction subject to UK law; and (iv) applied different regimes to domestic and non-domestic satellite services.

In Commission v Belgium, the court ruled that Belgium had failed to fulfil its obligations under the Directive by, inter alia, maintaining within both the French-speaking and the Dutch-speaking regions, systems of prior authorisation for the retransmission by cable of television broadcasts emanating from other states; and maintaining within the French-speaking region a system of express, conditional prior authorisation for the retransmission of broadcasts from other member states which contained commercial advertising or teleshopping programmes especially intended for viewers in the French community.

The court ruled that it was solely for the member state from which a broadcast emanated to monitor the application of its own laws to such a broadcast and to ensure compliance with the Directive, and that the receiving member state was not entitled to exercise its own control in that regard.

Only in the circumstances provided for in relation to article 22 might the receiving member state exceptionally suspend retransmission of televised broadcasts.