The Court of Justice of the European Union (CJEU) has ruled that Belgian must-carry rules are
incompatible with EU law, as they lack clearly defined, transparent
and non-discriminatory criteria for awarding must-carry status to
broadcast content. Must-carry rules obligate network operators
(essentially cable and DSL operators) to carry radio and television
broadcasts that are considered of general interest. The CJEU's
3 March 2011 judgment restricts Member State discretion when
imposing must-carry obligations on the basis of public interest
objectives and provides more legal certainty.
Background. The judgment follows an infringement
action brought by the European Commission against Belgium. The
Commission sought a declaration from the Court that a Belgian Law
on distribution networks for broadcasting did not correctly
implement Article 31 of the Universal Service Directive (Directive
2002/22/EC of 7 March 2002, hereafter "USD"):
- the general interest objectives, on the basis of which must carry obligations could be imposed on network operators, were not clearly defined
- the procedure for granting must-carry status to TV broadcasts was not sufficiently transparent
- the legislation at issue disregarded the scope of the obligations that can be imposed on telecoms operators under Article 31 USD.
The Court upheld all three complaints, concluding that the
Belgian law did not correctly implement Article 31 USD and was
therefore also incompatible with the Treaty on the Functioning of
the EU (TFEU), which guarantees the free movement of services
within the EU.
Requirement to base must-carry obligations on clearly
defined public interest objectives. The challenged
legislation justified imposing must-carry obligations on the need
to maintain plurality and cultural diversity. The Court accepted
that "a cultural policy may constitute an overriding
requirement relating to the general interest which justifies a
restriction of the freedom to provide services." The Court
also conceded that, since "the maintenance of pluralism...is
connected with the fundamental right of freedom of expression, the
national authorities have a wide margin of discretion in
that regard." However, the Court stressed that
"measures designed to implement a cultural policy must
in no case be disproportionate in relation to their aim,
and that the manner in which they are applied must not bring about
discrimination against nationals of other Member States." The
Court then concluded that "the mere statement of a general
policy objective, which is not accompanied by any
additional factor capable of enabling operators to determine in
advance the nature and effect of the precise conditions and
obligations to be fulfilled if they apply for the award of
must-carry status," does not fulfill this proportionality
requirement. Building further upon its earlier case law, the Court
held that the manner in which the must-carry obligations are
applied must be subject to a transparent procedure based on
objective non-discriminatory criteria known in
advance. It found that the concerned national provisions
lacked the requisite clarity.
Requirement to assess must-carry status on a channel by
channel basis. The Court also struck down the national
provisions that automatically granted must-carry status to all
broadcasts of private broadcasters designated as beneficiaries of
such obligations. Relying on earlier case law, the Court held that
must-carry status should not be automatically awarded to all
television channels transmitted by a same private broadcaster, but
must be strictly limited to those channels having an overall
content that is appropriate for the purpose of attaining the public
interest objective pursued by the measure. Consequently, national
authorities must in each case specify which
channels are to be granted must-carry status.
The attributing authority must show that must-carry
obligations are proportionate. The Court noted that under
Article 31(1) USD, must-carry obligations may be imposed on
operators of electronic communications networks only where a
significant number of end-users of those networks use them as their
principal means of receiving radio and television programs. By
contrast, the Belgian law permits the Minister to relieve an
operator from the must-carry obligations if this operator shows
that there are insufficient end-users who use such network as their
principal means of receiving broadcast television programs, such
that the necessary investment for implementing the obligations
would be unreasonable. The Court concluded that shifting the burden
of proof – to demonstrate that a significant number of
end-users use a given network to receive broadcast content
– away from the national authorities and onto the network
operator, was inconsistent with Article 31(1) USD.
Conclusion. The judgment more narrowly
circumscribes Member State discretion when imposing must-carry
obligations on network operators. Merely stating a public interest
objective is not enough to justify such obligations: the national
authorities must be able to justify, on the basis of objective and
transparent criteria provided in advance, why awarding must-carry
status to a specific channel is necessary to achieve that
objective. In addition, Member States cannot shift the burden of
proof to network operators to demonstrate that a significant number
of users use a network to receive television broadcasts. Thus,
national authorities can no longer impose must-carry obligations on
network operators without proper justification. At the same time,
private broadcasters must be informed in advance of the objective
criteria to be met in order to qualify for such status. The
judgment reduces Member State's margin of discretion in
granting must-carry status and gives more legal certainty to all
parties involved.
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