Keywords
Summary

Keywords

1. Community law – Principles – Equal treatment – Discrimination on grounds of nationality – Freedom to provide services – Television broadcasting activities – Directive 89/552

(Arts 12 EC, 39(2) EC, 43 EC, 49 EC and 56 EC; Council Directive 89/552, Art. 3)

2. State aid – Meaning

(Art. 87(1) EC)

Summary

1. Directive 89/552 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities, as amended by Directive 97/36, and, more particularly, Article 3 thereof and Article 12 EC must be interpreted as meaning that they do not preclude a measure adopted by a Member State which requires television operators to earmark 5% of their operating revenue for the pre-funding of European cinematographic films and films made for television and, more specifically, to reserve 60% of that 5% for the production of works of which the original language is one of the official languages of that Member State.

Irrespective of whether such a measure is in an area covered by the directive, the Member States retain, in principle, jurisdiction to adopt it, provided that they respect the fundamental freedoms guaranteed by the Treaty.

It is true that, such a measure, in so far as it relates to the obligation to reserve for the production of films of which the original language is one of the official languages of the Member State in question 60% of the 5% of operating revenue reserved for the pre-funding of European cinematographic films and films made for television, constitutes a restriction on several fundamental freedoms, that is to say on the freedom to provide services, freedom of establishment, the free movement of capital and freedom of movement for workers.

However, that measure may be justified by the objective of defending and promoting one or several of the official languages of a Member State concerned. In that regard, such a measure, in so far as it introduces an obligation to invest in cinematographic films and films made for television the original language of which is one of the official languages of that Member State, appears appropriate to ensure that such an objective is achieved.

In addition, it does not appear that such a measure goes beyond what is necessary to achieve that objective. Since that measure affects, first of all, only 3% of the operating revenue of the operators, such a percentage cannot be considered disproportionate in relation to the objective pursued. Furthermore, such a measure does not go beyond what is necessary to achieve the objective pursued by reason of the mere fact that it does not lay down criteria which would allow the works concerned to be classified as ‘cultural productions’. Since language and culture are intrinsically linked, the view cannot be taken that the objective pursued by a Member State of defending and promoting one or several of its official languages must of necessity be accompanied by other cultural criteria in order for it to justify a restriction on one of the fundamental freedoms guaranteed by the Treaty. Nor does such a measure go beyond what is necessary to achieve the objective pursued by reason of the mere fact that the beneficiaries of the financing concerned are mostly cinema production undertakings in that Member State. The fact that the criterion on which that measure is based may constitute an advantage for cinema production undertakings which work in the language covered by that criterion and which, accordingly, may in practice mostly comprise undertakings established in the Member State of which the language constitutes an official language appears inherent to the objective pursued. Such a situation cannot, of itself, constitute proof of the disproportionate nature of that measure without rendering nugatory the recognition, as an overriding reason in the public interest, of the objective pursued by a Member State of defending and promoting one or several of its official languages.

With regard to Article 12 EC, that provision applies independently only to situations governed by Community law for which the Treaty lays down no specific rules of non-discrimination. However, in relation to the freedom of movement for workers, the right of establishment, the freedom to provide services and the free movement of capital, the principle of non-discrimination was implemented by Articles 39(2) EC, 43 EC, 49 EC and 56 EC respectively. Since it follows from the foregoing that the measure at issue does not appear contrary to those provisions of the Treaty, it cannot be considered contrary to Article 12 EC either.

(see paras 20, 24, 27, 29-34, 36-40, operative part 1)

2. Article 87 EC must be interpreted as meaning that a measure adopted by a Member State requiring television operators to earmark 5% of their operating revenue for the pre-funding of European cinematographic films and films made for television and, more specifically, to reserve 60% of that 5% for the production of works of which the original language is one of the official languages of that Member State does not constitute State aid in favour of the cinematographic industry of that Member State.

Only advantages granted directly or indirectly through State resources are to be considered aid within the meaning of Article 87(1) EC. In that regard, the distinction made in that provision between aid granted by a Member State and aid granted through State resources does not signify that all advantages granted by a State, whether financed through State resources or not, constitute aid, but is intended merely to bring within that definition both advantages which are granted directly by the State and those granted by a public or private body designated or established by the State.

It is not apparent that the advantage given by way of that measure to the cinematographic industry of the Member State concerned constitutes an advantage granted directly by the State or by a public or private body designated or established by the State. Such an advantage is the result of general legislation requiring television operators, whether public or private, to earmark a percentage of their operating revenue for the pre-funding of European cinematographic films and films made for television.

Furthermore, since that measure applies to public television operators, it does not appear that the advantage in question is dependent on the control exercised by the public authorities over such operators.

(see paras 43-47, operative part 2)