ECJ: must carry must be transparent, must be objective, must be non-discriminatory

Posted on December 15, 2007 | Filed Under communication technologies 

The judgement of the European Court of Justice in the case C-250/06 UPC Belgium, delivered on 13 December 2007, is completely in line with the Advocate General’s opinion (for my post on this opinion see here). As the Advocate General had proposed, the Court did not answer the first two questions, relating to the issues of “special rights” under Art. 86 EC and to a potential abuse of a dominant position, because the national court requesting the ruling had not provided the ECJ “with the factual and legal information necessary”.

The Court then notes that the present case does not need to be examined in the light of the Universal Serivce Directive 2002/22/EC, since this directive had not been in validity when the national must carry-decisions under scrutiny here were taken.

So what remains is the question whether or not must carry-obligations are compatible with the freedom to provide services according to Art. 49 EC. The Court concludes that the must carry-obligation at issue constitutes a restriction on the freedom to provide services within the meaning of Article 49 EC. According to established case-law, such restrictions may be justified only where they serve overriding reasons relating to the general interest, are suitable for securing the attainment of the objective which they pursue and do not go beyond what is necessary in order to attain it.

The Court states that the maintenance of pluralism which the must carry-obligation seeks to safeguard is connected with freedom of expression. Consequently, the Court accepts that the national legislation at issue pursues an aim in the general interest, and it also holds that the must carry-obligation is an appropriate means of achieving the cultural objective pursued.

As regards the question whether the legislation at issue is necessary in order to attain the aim pursued, te Court accepts a wide margin of discretion for the national authorities, but stresses that the requirements imposed “must in no case be disproportionate in relation to that aim and the manner in which they are applied must not bring about discrimination against nationals of other Member States”.

  • “Therefore […] the award of must-carry status must first of all be subject to a transparent procedure based on criteria known by broadcasters in advance, so as to ensure that the discretion vested in the Member States is not exercised arbitrarily.”
  • “Next, the award of must-carry status must be based on objective criteria which are suitable for securing pluralism by allowing, where appropriate, by way of public service obligations, access inter alia to national and local news on the territory in question. Thus, such status […] must be strictly limited to those channels having an overall content which is appropriate for the purpose of attaining such an objective. In addition, the number of channels reserved to private broadcasters having that status must not manifestly exceed what is necessary in order to attain that objective.”
  • “Lastly, the criteria on the basis of which must-carry status is awarded must be non-discriminatory. In particular, the award of that status must not, either in law or in fact, be subject to a requirement of establishment on the national territory.”

So even if Art 31 of the Universal Service Directive was not yet applicable in this case, the Court set out criteria that are also laid down in this directive. According to Art. 31 of the Universal Service Directive, Member States may impose reasonable “must carry” obligations for the transmission of specified radio and television broadcast channels and services:

“Such obligations shall only be imposed where they are necessary to meet clearly defined general interest objectives and shall be proportionate and transparent. The obligations shall be subject to periodical review.”

The first case where the Court will have to examine Art. 31 of the Universal Service Directive is C-336/07 Kabel Deutschland: the national law in question provides for the possibility that a national regulatory authority imposes must carry-obligations resulting in the full use of the channels available to a cable network operator. It’s hard to see how this could be reasonable and proportionate.

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