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Document 61973CC0155
Opinion of Mr Advocate General Reischl delivered on 20 March 1974. # Giuseppe Sacchi. # Reference for a preliminary ruling: Tribunale di Biella - Italy. # Case 155-73.
Reischl főtanácsnok indítványa, az ismertetés napja: 1974. március 20.
Giuseppe Sacchi.
Előzetes döntéshozatal iránti kérelem: Tribunale di Biella - Olaszország.
155-73. sz. ügy
Reischl főtanácsnok indítványa, az ismertetés napja: 1974. március 20.
Giuseppe Sacchi.
Előzetes döntéshozatal iránti kérelem: Tribunale di Biella - Olaszország.
155-73. sz. ügy
ECLI identifier: ECLI:EU:C:1974:22
OPINION OF MR ADVOCATE-GENERAL REISCHL
DELIVERED ON 20 MARCH 1974 ( 1 )
Mr President,
Members of the Court,
Mr Sacchi, the defendant in the national proceedings which have led to the reference which has to be dealt with today, is the owner and director of an undertaking, which for short is called ‘TELEBIELLA’. This undertaking was launched in September 1972; its business is the transmission of programmes which it produces itself or receives by cable-television. It maintains certain television apparatus in public places for use for such cable reception.
Under the Italian Decree Law No 246 of 21 February 1938 (as later amended) persons who maintain apparatus for the reception of radio transmissions are required to pay a licence fee. A penalty is provided for non-payment.
Since Mr Sacchi did not pay this licence fee for the abovementioned television receivers set up by TELEBIELLA, criminal proceedings were started against him on the basis of the aforesaid Law.
Mr Sacchi defended himself in these proceedings by saying that the licence fee served to finance the company RAI and provided a lump sum payment for the services of RAI. The said society had however only an exclusive right to transmit television over the air; consequently, this fee could not be demanded, if apparatus, as in the case of TELEBIELLA, were installed solely for the reception of television by cable. If the exclusive right of RAI extended to cable transmission, then this would infringe the provisions of the EEC Treaty on free movement of goods and free competition, namely Articles 2, 3 (f), 5, 37, 86 and 90, which were directly applicable and had precedence. From this it followed that such exclusive right could not exist under Community law and therefore a fee which served to protect such a right was not exigible.
Having regard to these arguments the Tribunale of Biella stayed the proceedings by Order dated 6 July 1973 and referred a series of questions on the interpretation of Community law for a preliminary ruling under Article 177 of the EEC Treaty.
I will not now read the considerable list of questions, but refer in that respect to the report for the hearing.
Permit me, before I examine the questions, to make some remarks on the relevant Italian law.
Under the Codice Postale e delle Telecomunicazioni, approved by Royal Decree No 645 of 27 February 1936, the telecommunications services, (i.e. telegraphs, telephones, radio and the like) come under the exclusive control of the State. The administration can grant concessions over these services which still leave it certain powers of control. This legal position was confirmed by Presidential Decree No 156 of 29 March 1973, which contains the Codice Postale with subsequent amendments. Article 195 of the Decree of 1973 makes it clear moreover, that television undertakings are to be regarded as radio establishments within the meaning of the Law even if they transmit by means of cable.
On the basis of these provisions the Minister of Posts and Telecommunications concluded an Agreement on 26 January 1952 with the aforesaid company RAI, which is controlled by the State holding company IRI and this Agreement was approved by Presidential Decree No 180 on the same day. According to this RAI has the exclusive right to make television transmissions. It is also laid down in the Agreement that the State shall be represented in the organs of RAI and that it has powers of control and intervention in RAI. Further it is provided that the necessary income for television shall be raised from licence fees of subscribers and by advertising. Shortly before its expiration this Agreement was renewed until 30 April 1974 by a supplementary Agreement of 15 December 1972. Under this the obligation was imposed on RAI to arrange the television network so that foreign broadcasts could be transmitted in certain areas and it was provided in relation to advertising that it should be conducted either by RAI direct or by the intermediary of another company. Accordingly, since 1972 television advertising is taken care of by the company SIPRA, which is under the complete control of RAI.
Finally, there was an Agreement on 12 August 1972 between the Minister and the telephone company SIP, which is likewise controlled by the State holding company IRI, according to which SIP is required to provide and administer the necessary infra-structure for television transmissions by cable. No special concession for cable television has, according to the Italian Government so far been granted.
Against the background or these provisions the questions referred to us may now be examined.
I — |
First, an objection by the Italian Government must be dealt with. The Italian Government is of the opinion that the court making the reference must first clarify under the national law whether a licence fee is required for the possession of apparatus with which only television transmissions by cable are received. If it becomes apparent that in such a case a licence fee is not due, the national proceedings can be concluded without it being necessary to clarify questions of Community law. Seen thus, the reference is accordingly premature. The Italian Government argues in this way that the questions referred are not necessary for the decision. Such objections have repeatedly been made in proceedings for a preliminary ruling. From the way they have been dealt with it has become apparent in this field that this Court acts with the greatest reservation. It has in particular made it clear that it is willing to go into questions of relevance to a decision only if there can be said to be a patently erroneous reference to the provisions of Community law, the interpretation of which is sought. In the present case such does not appear to me to be the position. The impression may be obtained that the court making the reference inclines to the view that a licence fee is also due for the possession of apparatus for the reception or television transmissions by cable, which would mean that it regards the preliminary question of national law as resolved in a particular sense. After all, it must not be forgotton that the Law of 1973 expressly mentions cable television. Even if this interpretation is not correct, it can scarcely be taken that a national court is prevented from leaving open a disputed question of national law pro tern and referring questions of Community law to this Court, if it is of the opinion that a solution of the case may be forthcoming in this way (in the present case, that under Community law the licence fee in question may be invalid). I am certainly not of the opinion that in such circumstances it can be said that the reference to Community law is patently wrong. I consequently do not propose that the Court should refuse to answer the questions put on the ground that considerations of national law could possibly make an answer to the questions of Community law unnecessary. I regard it as much more reasonable to undertake the required interpretation of Community law right awav and I will therefore go on to an examination of the actual questions of substance in the proceedings without further discussion of the admissibility of the reference. |
II — To answer the individual questions:
1. |
The defendant in the main proceedings objects to the fact that television can be transmitted in Italy only by the RAI and that private cable television is not allowed there. According to him this rules out re-transmitting by means of cable television foreign television programmes which can be received. Likewise it is not possible to transmit to an Italian audience television films and advertisements from other Member States. Mr Sacchi regards this in the first place as an obstacle to free movement of goods, that is as making it more difficult to sell products from other Member States, since there can be no unrestricted television advertising in respect of them. It can also be said that imports are made more difficult if television programmes as such, as intangible assets, are equated with goods, or if the material which carries the programmes (tapes and films) is considered, the full utilization of which runs into difficulties in view of the monopoly of RAI. This is the basis of the first group of questions which had been referred to the Court apparently at the instigation of Mr Sacchi.
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2. |
A second group of questions relates to the competition rules of the Treaty (Articles 86 and 90). In this connexion clarification is sought as to whether the establishment of a dominant position in a substantial part of the Common Market is illegal if all forms of competition in the particular field in the Member State are eliminated; investigation is required as to whether a limited company which has been granted the exclusive right to make television transmission in a Member State, holds within that territory a dominant position which, having regard to certain viewpoints, is prohibited by Article 86, and a declaration is sought as to whether in this event individuals have subjective rights to have such exclusive rights abolished.
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3. |
Only the last question remains, whether it is a breach of Article 7 of the Treaty to reserve for a limited company in a Member State the exclusive right to transmit television advertisements over the whole territory of that Member State. On this it may be observed that the fact that television advertisements are reserved to RAI does not necessarily entail discrimination on grounds of nationality since domestic undertakings are subject in a similar way to this limitation on publicity. Even Article 7 is probably not to be understood as meaning that having regard to the handicap of foreign undertakings, namely their different needs for advertising, provision should be made in their favour to increase publicity by opening up a private television service. Nor must it be forgotten that any such consequence need not necessarily mean an improvement of the position of foreign undertakings and their being placed on an equal footing with domestic undertakings, for to allow a private television service would obviously benefit domestic as well as foreign undertakings. I therefore do not see how Article 7 of the Treaty and its application to the RAI could be of any interest to the main action. |
III — Summary
All this brings me to propose the following answers to the questions raised:
1. |
The principle of the free movement of goods within the Common Market does not as such, that is without recourse to the particular provisions laid down for its implementation, give rise to subjective rights in favour of individuals which could be invoked before national courts. |
2. |
The fact that a limited company has been granted the exclusive right to transmit television broadcasts, including television advertising, in a Member State (exclusive television right) does not, as regards products which are affected by the television advertising, infringe the Commission Directive on the abolition of measures having effect equivalent to quantitative restrictions on imports. |
3. |
Article 37 of the EEC Treaty applies to monopolies of a commercial character and not to monopolies of services. The grant of exclusive television rights to a private law company is not affected by this provision. |
4. |
Under Article 86 of the EEC Treaty the existence of a dominant position is not prohibited as such, but only its abuse by the dominant undertaking itself. |
5. |
The grant of exclusive television rights by a Member State to a private law limited company and the extension of these rights to the sphere of cable television does not infringe Article 90 taken in conjunction with Article 86 of the EEC Treaty. |
6. |
It is not a breach of Article 7 of the EEC Treaty to reserve for a limited company in a Member State the exclusive right to transmit television advertisements over the whole territory of that Member State. |
( 1 ) Translated from the German.