Portionate Measure in Relation to the Objective to Be Achieved, in That The

OPINION OF MR WARNER — CASE 52/79 portionate measure in relation to the objective to be achieved, in that the prohibition in question is relatively ineffective in view of the existence of natural reception zones, or discrimination which is prohibited by the Treaty in regard to foreign broadcasters, in that their geographical location allows them to broadcast their signals only in the natural reception zone. Kutscher O'Keeffe Touffait Mertens de Wilmars Pescatore Mackenzie Stuart Bosco Koopmans Due Delivered in open court in Luxembourg on 18 March 1980. A. Van Houtte H. Kutscher Registrar President OPINION OF MR ADVOCATE GENERAL WARNER DELIVERED ON 13 DECEMBER 1979 My Lords, Both raise questions of interpretation of Articles 59 to 66 of the EEC Treaty, relating to the free movement of services. Introduction Both have as their background the Of these two cases, one, Case 52/79, activities of undertakings providing comes to the Court by way of a television diffusion services in Belgium. reference for a preliminary ruling by the Essentially, such a service consists in Tribunal Correctionnel of Liège, the picking up by means of an aerial other, Case 62/79, by way of a reference television signals that have been for a preliminary ruling by the Cour broadcast over the air and distributing d'Appel of Brussels. the signals by cable to the television sets 860 PROCUREUR DU ROI v DEBAUVE of subscribers to the service. We were Counsel for the German Government, told that, from a technical point of view, but he did not press the point, nor would it is only the scale and professionalism of the overall picture have been much the operation (in particular, the size and altered if he had been right. It was said, location of aerials and the standard of without contradiction, that the effect of maintenance) that distinguishes it from cable diffusion was to increase the that involved in the use of a common number of foreign programmes available aerial for television reception in, for to Belgian viewers from, in the most instance, a block of flats. favoured areas, two or three to eight or ten. Cable diffusion of television was said to have four beneficial effects. First, it Case 52/79 arises from a prosecution for provides a means of overcoming infringement of a prohibition of the obstacles to the direct reception of diffusion of commercial advertisements broadcasts, such as hills, forests and tall contained in an Arrêté Royal to which I buildings. Secondly, it improves the shall refer in more detail in a moment. quality of both picture and sound. Case 62/79 arises from a civil action for Thirdly, it enables subscribers to receive breach of copyright. television programmes even though they live beyond the range of the broad casting stations emitting those programmes, i.e. outside what was called their "zone of natural reception". Finally, there is an evironmental The relevant Belgian law consideration: cable diffusion dispenses with the need for unsightly private aerials on the roofs of houses. It was stressed that, once a viewer has become a subscriber to a diffusion service, he receives all television programmes by Broadcasting is in Belgium a statutory cable, including those within whose zone monopoly, covering both radio and of natural reception he may be living. television. It is now governed by a statute of 18 May 1960, which (as amended by a decree of 12 December 1977) set up two broadcasting corporations ("instituts d'émission"), namely, "Radiodiffusion- télévision belge de la Communauté These cases are about problems arising culturelle française" (commonly known from the cable diffusion in Belgium of as "RTBF") and "Belgische radio en programmes broadcast by television televisie, Nederlandse uitzendingen" stations outside Belgium. The Court was (commonly known as "BRT"). The shown a map which made it clear that statute also established a joint body, the every part of Belgium lies within the "Radiodiffusion-télévision belge — zone of natural reception of one or more Institut des services communs", which is foreign stations (British, Dutch, German, responsible for common technical, Luxembourgish or French). The extent administrative, financial and cultural of penetration by foreign broadcasts services, for broadcasts in German, and shown on the map was questioned by for a world service. 861 OPINION OF MR WARNER — CASE 52/79 Among other restrictions, the statute, by Article 21. Article 28 (3), forbids any broadcast by RTBF or BRT (or, as I understand it, by Sous réserve des stipulations des the joint "Institut") of any material in conventions internationales, le distri the nature of a commercial advertisement buteur peut transmettre les émissions de ("revêtant un caractère de publicité toute autre station de radiodiffusion commerciale"). We were told that none télévisuelle autorisée par le pays où elle the less programme sponsorship by est établie. bodies of a public or quasi-public nature, Est toutefois interdite la transmission: such as SABENA, the Caisse de Crédit Communal and the Caisse d'Epargne, is Io des émissions revêtant un caractère permitted. de publicité commerciale; Cable diffusion of television is regulated by an Arrêté Royal of 24 December 1966. Article 22. Chapter II of that Arrêté Royal contains Il est interdit au distributeur de relier au provisions on the licensing of cable réseau de distribution d'émissions de diffusion networks. radiodiffusion télévisuelle des appareils Under Article 2 the establishment of such susceptibles de distribuer des images et a network without a licence from the sons autres que ceux des programmes competent Minister is prohibited. We autorisés. were told that an application for a licence must state the broadcasting stations whose programmes the applicant is proposing to relay, and that any Article 23. addition to or subtraction from the group of stations thus specified requires Il est interdit de distribuer des émissions: fresh authorization. a) attentatoires à la sûreté de l'État, à Article 7 provides that licences shall be l'ordre public ou aux lois belges; granted in respect of a defined territory b) contraires aux bonnes mœurs; constituting part of a commune, a single commune or a number of adjoining c) susceptibles de constituer un outrage communes. However, the competent aux convictions d'autrui ou une Minister may authorize the installation offense à l'égard d'un Etat étranger." outside that territory of aerials and of equipment connected thereto. Article 41 of the Arrêté Royal provides Chapter VI of the Arrêté Royal is that any infringement of its provisions headed "Programmes". Included among may result in the temporary or its provisions are Articles 20 to 23, which permanent withdrawal of a licence. That are, so far as material, in these terms : is expressed to be without prejudice to the provisions of a statute of 26 January "Article 20. 1960, under which fines may be imposed. Sauf en cas d'impossibilité reconnue par The relevant Belgian law of copyright is la Régie des Télégraphes et des stated in the Order for Reference made Téléphones, tout réseau de distribution by the Cour d'Appel of Brussels. The d'émissions de radiodiffusion télévisuelle Cour d'Appel there says that the position doit transmettre simultanément et dans of cable diffusion undertakings is leur intégralité toutes les émissions de la governed in Belgium by Article 11 bis of Radiodiffusion Télévision belge. the Berne Convention on the Protection 862 PROCUREUR DU ROI v DEBAUVE of Literary and Artistic Works in its Also of some relevance in these cases are "Brussels version" of 26 June 1948, Anieles 1 and 6 (1) of the European which was ratified by a Belgian statute of Agreement on the Protection of 26 June 1951. Paragraph 1 of Article Television Broadcasts of 22 June 1960, 11 bis reads: made under the auspices of the Council of Europe (the "Strasbourg Agree ment"). So far as the Member States of "Authors of literary and artistic works the Community are concerned that shall have the exclusive right of auth Agreement is in force as between orizing: Belgium, Denmark, France, the Federal Republic of Germany and the United (i) the radiodiffusion of their works or Kingdom. The Agreement has not, so it the communication thereof to the seems, been ratified by Ireland, Italy, public by any other means of Luxembourg, or the Netherlands. wireless diffusion of signs, sounds or images; Article 1 is, so far as material, in these terms : (ii) any communication to the public, whether over wires or not, of the "Broadcasting organizations constituted radiodiffusion of the work, when in the territory and under the laws of a this communication is made by a Party to this Agreement or transmitting body other than the original one; from such territory shall enjoy, in respect of all their television broadcasts: (iii) - - ·" 1. in the territory of all Parties to this Agreement, the right to authorize or prohibit: The Cour d'Appel says that subpara graph (ii) is in point inasmuch as a (a) . .. Belgian cable diffusion undertaking is a body other than the original broadcaster and inasmuch as the diffusion of a (b) the diffusion of such broadcasts broadcast by such an undertaking to its to the public by wire; subscribers is a "communication to the public . over wires". That being so the author of any literary or artistic work that is the subject-matter of a broadcast has the exclusive right of authorizing its Article 6(1) provides: diffusion by such an undertaking. As I understand it, the same principle holds "The protection provided for in Article 1 good, in the view of the Cour d'Appel, shall not affect any rights in respect of a whether the original broadcast was made television broadcast that may accrue to in Belgium or elsewhere.

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