Case C‑298/17
France Télévisions SA
v
Playmédia
and
Council supérieur de l’audiovisuel (CSA)
(Request for a preliminary ruling from the Conseil d’État (France))
(Reference for a preliminary ruling — Directive 2002/22/EC — Electronic communications networks and services — Universal service and users’ rights — Undertaking providing an electronic communications network used for the distribution of radio or television broadcasts to the public — Undertaking offering the live streaming of television programmes online — ‘Must carry’ obligation)
Summary — Judgment of the Court (Fourth Chamber), 13 December 2018
Approximation of laws — Electronic communications networks and services — Universal service and users’ rights — Directive 2002/22 — Distribution of radio or television broadcasts to the public — Reasonable (‘must carry’) obligations — Scope — Undertaking offering the live streaming of television programmes online — Precluded
(European Parliament and Council Directive 2002/22, as amended by Directive 2009/136, Recital 5 and Art. 31(1))
Approximation of laws — Electronic communications networks and services — Universal service and users’ rights — Directive 2002/22 — Distribution of radio or television broadcasts to the public — Reasonable (‘must carry’) obligations — Scope — Possibility for the Member States of extending ‘must carry’ obligations to undertakings not covered by the directive — Limits
(Art. 56 TFEU; European Parliament and Council Directive 2002/22, as amended by Directive 2009/136, Arts 1(3) and 31(1))
Article 31(1) of Directive 2002/22/EC of the European Parliament and of the Council of 7 March 2002 on universal service and users’ rights relating to electronic communications networks and services (Universal Service Directive), as amended by Directive 2009/136/EC of the European Parliament and of the Council of 25 November 2009, must be interpreted as meaning that an undertaking which offers the live streaming of television programmes online must not, based on that fact alone, be regarded as an undertaking which provides an electronic communications network used for the distribution of radio or television channels to the public.
It clearly follows from recital 5 of the Framework Directive that it is necessary to separate the regulation of transmission from the regulation of content, and that the common regulatory framework, of which the Universal Service Directive is part, does not cover the content of services delivered over electronic communications networks using electronic communications services (see, to that effect, judgment of 7 November 2013, UPC Nederland, C‑518/11, EU:C:2013:709, paragraph 38).
(see paras 20, 22, operative part 1)
The provisions of Directive 2002/22, as amended by Directive 2009/136, must be interpreted as not precluding a Member State from imposing, in a situation such as that at issue in the main proceedings, a ‘must carry’ obligation on undertakings which, without providing electronic communication networks, offer the live streaming of television programmes online.
In that regard, it must be noted that, pursuant to Article 1(3) of the Framework Directive, the directives which form part of the common regulatory framework are without prejudice to measures taken at national level, in compliance with EU law, to pursue general interest objectives, in particular relating to content regulation and audiovisual policy. Therefore, the Universal Service Directive leaves the Member States free to impose ‘must carry’ obligations, outside of those covered by Article 31(1) of that directive, in particular on undertakings which, without providing electronic communication networks, offer the live streaming of television programmes online. Admittedly, by imposing ‘must carry’ obligations on undertakings which are not covered by Article 31(1) of the Universal Service Directive, Member States must comply with EU law, namely the rules relating to the freedom to provide services enshrined in Article 56 TFEU.
(see paras 25, 27, 29, 36, operative part 2)