Case T-233/00

Scanbox Entertainment A/S

v

Commission of the European Communities

‛Programme encouraging the development and distribution of European audiovisual works (MEDIA II) — Automatic support for distribution — Recipient company’

Judgment of the Court of First Instance (Fifth Chamber), 15 October 2002   II-3939

Summary of the Judgment

1. Culture — Community programmes — MEDIA II programme — Applications for funding for film distribution — Conditions for eligibility — Guidelines drawn up by the Commission — Binding effect on the Commission

   (Council Decision 95/563)

2. Culture — Community programmes — MEDIA II programme — Applications for funding for film distribution — Conditions for eligibility — Criterion of acquisition of distribution rights — Criterion of responsibility for distribution costs — Criterion of direct distribution — Criterion relating to negotiation of release dates — Scope

   (Council Decision 95/563)

1.  In accordance with the principles of legal certainty and sound administration, the Commission is bound to respect the criteria that it has itself set out in the guidelines contained in its Call for Proposals 8/2000, entitled ‘Support for the Transnational Distribution of European Films and the Networking of European Distributors — “The Automatic Scheme’” implementing the subsidy system provided for by the programme encouraging the development and distribution of European audiovisual works (MEDIA II), and cannot declare a company which does not satisfy those criteria eligible for the automatic scheme.

   (see para. 30)

2.  Only the distribution companies which satisfy the cumulative criteria set out in paragraph 2.4 of the guidelines contained in the Commission's Call for Proposals 8/2000, entitled ‘Support for the Transnational Distribution of European Films and the Networking of European Distributors — “The Automatic Scheme’” implementing the programme encouraging the development and distribution of European audiovisual works (MEDIA II), are eligible for the automatic scheme.

   Those criteria for eligibility are satisfied by a production and distribution company, even if it has concluded a subcontract with a production and distribution company in another Member State under which the latter undertakes to distribute the film in that other Member State, where: first, it is the sole holder of the exclusive rights to distribute those films in that State; second, it bears sole responsibility for the distribution costs, the subcontractor deducting the costs arising from distribution of the films from the film rental payments and the distributor reimbursing those advanced by the subcontractor; third, it distributes the films directly, the subcontractor being merely the ‘physical distributor’ and therefore, under paragraph 2.4, unable to be regarded as a ‘distributor’; fourth, it negotiates the date of the films release, for example by approving a marketing plan drawn up by the subcontractor which contains information on the release date, as paragraph 2.4 does not require that the release date be determined directly or exclusively by the distributor and it is sufficient that it has been negotiated by the distributor.

   (see paras 26, 38, 51, 54-55, 66-67)