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Eu:C:2011:607 MESOPOTAMIA BROADCAST JUDGMENT OF THE COURT (Third Chamber) 22 September 2011 * In Joined Cases C-244/10 and C-245/10, REFERENCES for a preliminary ruling under Article 267 TFEU from the Bundesver- waltungsgericht (Germany), by decisions of 24 February 2010, received at the Court on 19 May 2010, in the proceedings Mesopotamia Broadcast A/S METV (C-244/10)and Roj TV A/S (C-245/10) v Bundesrepublik Deutschland, THE COURT (Third Chamber), composed of K. Lenaerts, President of the Chamber, R. Silva de Lapuerta (Rappor- teur), G. Arestis, J. Malenovský and T. von Danwitz, Judges, * Language of the cases: German. I - 8797 JUDGMENT OF 22. 9. 2011 — JOINED CASES C-244/10 AND C-245/10 Advocate General: Y. Bot, Registrar: A. Impellizzeri, Administrator, having regard to the written procedure and further to the hearing on 13 April 2011, after considering the observations submitted on behalf of: — Mesopotamia Broadcast A/S METV and Roj TV A/S, by R. Marx, Rechtsanwalt, — the German Government, by T. Henze and N. Graf Vitzthum, acting as Agents, — the French Government, by G. de Bergues and S. Menez, acting as Agents, — the European Commission, by C. Vrignon, S. La Pergola and G. von Rintelen, act- ing as Agents, after hearing the Opinion of the Advocate General at the sitting on 5 May 2011, gives the following Judgment 1 These references for preliminary rulings concern the interpretation of Council Directive 89/552/EEC of 3 October 1989 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning I - 8798 MESOPOTAMIA BROADCAST the pursuit of television broadcasting activities (OJ 1989 L 298, p. 23), as amended by Directive 97/36/EC of the European Parliament and of the Council of 30 June 1997 (OJ 1997 L 202, p. 60) (‘the Directive’). 2 The eferencesr have been made in proceedings between Mesopotamia Broadcast A/S METV (‘Mesopotamia Broadcast’) and Roj TV A/S (‘Roy TV’), two Danish com- panies, on one hand, and the Federal Republic of Germany, on the other, concerning a decision to prohibit their activities on account of the nature of the television broad- casts produced by those companies. Legal context European Union legislation 3 Under Article 1(b) of the Directive ‘broadcaster’ means ‘the natural or legal person who has editorial responsibility for the composition of schedules of television pro- grammes … and who transmits them or has them transmitted by third parties’. 4 Article 2 of the Directive provides: ‘1. Each Member State shall ensure that all television broadcasts transmitted by broadcasters under its jurisdiction comply with the rules of the system of law applica- ble to broadcasts intended for the public in that Member State. I - 8799 JUDGMENT OF 22. 9. 2011 — JOINED CASES C-244/10 AND C-245/10 2. For the purposes of this Directive the broadcasters under the jurisdiction of a Member State are: — those established in that Member State in accordance with paragraph 3; … 3. For the purposes of this Directive, a broadcaster shall be deemed to be established in a Member State in the following cases: (a) the broadcaster has its head office in that Member State and the editorial deci- sions about programme schedules are taken in that Member State; …’ 5 Article 2a of the Directive provides: ‘1. Member States shall ensure freedom of reception and shall not restrict retrans- missions on their territory of television broadcasts from other Member States for reasons which fall within the fields coordinated by this Directive. I - 8800 MESOPOTAMIA BROADCAST 2. Member States may, provisionally, derogate from paragraph 1 if the following con- ditions are fulfilled: (a) a television broadcast coming from another Member State manifestly, seriously and gravely infringes Article 22(1) or (2) and/or Article 22a; (b) during the previous 12 months, the broadcaster has infringed the provision(s) referred to in (a) on at least two prior occasions; (c) the Member State concerned has notified the broadcaster and the Commission in writing of the alleged infringements and of the measures it intends to take should any such infringement occur again; (d) consultations with the transmitting Member State and the Commission have not produced an amicable settlement within 15 days of the notification provided for in (c), and the alleged infringement persists. The Commission shall, within two months following notification of the measures taken by the Member State, take a decision on whether the measures are compat- ible with Community law. If it decides that they are not, the Member State will be required to put an end to the measures in question as a matter of urgency. 3. Paragraph 2 shall be without prejudice to the application of any procedure, remedy or sanction to the infringements in question in the Member State which has jurisdic- tion over the broadcaster concerned.’ I - 8801 JUDGMENT OF 22. 9. 2011 — JOINED CASES C-244/10 AND C-245/10 6 Article 3(1) and (2) of the Directive provides: ‘1. Member States shall remain free to require television broadcasters under their jurisdiction to comply with more detailed or stricter rules in the areas covered by this Directive. 2. Member States shall, by appropriate means, ensure, within the framework of their legislation, that television broadcasters under their jurisdiction effectively comply with the provisions of this Directive.’ 7 Articles 22 and 22a of the Directive are part of Chapter V thereof, entitled ‘Protection of minors and public order’. Article 22(1) and (2) of the Directive state: ‘1. Member States shall take appropriate measures to ensure that television broad- casts by broadcasters under their jurisdiction do not include any programmes which might seriously impair the physical, mental or moral development of minors, in par- ticular programmes that involve pornography or gratuitous violence. 2. The measures provided for in paragraph 1 shall also extend to other programmes which are likely to impair the physical, mental or moral development of minors, ex- cept where it is ensured, by selecting the time of the broadcast or by any technical measure, that minors in the area of transmission will not normally hear or see such broadcasts.’ I - 8802 MESOPOTAMIA BROADCAST 8 Article 22a of the Directive states as follows: ‘Member States shall ensure that broadcasts do not contain any incitement to hatred on grounds of race, sex, religion or nationality.’ National legislation 9 Paragraph 9(1) of the Basic Law of the Federal Republic of Germany (Grundgesetz für die Bundesrepublik Deutschland) (‘the Basic Law’), guarantees the freedom of as- sociation, and defines in subparagraph 2 the circumstances in which an association is prohibited. The latter states as follows: ‘Associations whose purposes or activities infringe criminal laws, or which conflict with the constitutional order or the principles of international understanding are prohibited.’ 10 The Law governing the public law of associations (Gesetz zur Regelung des öffen- tlichen Vereinsrechts BGBl. I 1964, p. 593) of 5 August 1964, as amended by Para- graph 6 of the Law of 21 December 2007 (BGBl. I 2007, p. 3198) (‘the Vereinsgesetz’), states in Paragraph 1: ‘1. Associations may be freely established … 2. A measure for maintaining security and public order may be adopted against as- sociations abusing the freedom of association only under this Law.’ I - 8803 JUDGMENT OF 22. 9. 2011 — JOINED CASES C-244/10 AND C-245/10 11 In Paragraph 2, that law defines the concept of association as follows: ‘1. Associations within the meaning of this Law shall include all associations, regard- less of their legal form, in which a majority of natural or legal persons have joined to- gether on a long-term basis for a common purpose and who have agreed to organised decision-making procedures. 2. For the purpose of this Law the following are not associations: 1. Political parties … 2. Political groups in the Bundestag and the Länd parliaments, 3. …’ 12 Paragraph 3 of that law governs prohibitions on associations in the following terms: ‘1. An association may be treated as prohibited … only if the authorities competent to prohibit it have determined by decision that its purposes or activities infringe criminal laws or that they conflict with the constitutional order or the principles of international understanding; the decision must order the dissolution of the associ- ation … The prohibition involves in principle seizure and confiscation of: 1. the assets of the association, I - 8804 MESOPOTAMIA BROADCAST 2. debts owed by third parties, 3. the property of third parties in so far as the proprietor has deliberately promoted the anti-constitutional aims of the association by transferring to it the property or that the property is intended to further those aims. … 3. The prohibition extends, except where it is expressly limited, to all organisations which are integrated within the association to the extent that they appear to be a branch of that association, having regard to all the actual relationships between them (sub-organisations). The prohibition extends to sub-organisations outside national territory which have a separate legal personality only if they are expressly mentioned in the decision. … 5. The authorities competent to impose a ban may also base it on the acts of members of the association if: 1. there is a connection with the activity of the association or with its purpose, 2. the acts result from a collective decision, and 3. the circumstances suggest that they are tolerated by the association.’ I - 8805 JUDGMENT OF 22. 9. 2011 — JOINED CASES C-244/10 AND C-245/10 13 Paragraph 14 of the Vereinsgesetz provides: ‘‘Associations whose members or directors are all or the vast majority of which are foreign nationals may be prohibited … subject to paragraph 2.
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