Luxembourg, 13/12/2007 (Agence Europe) - The Belgian regulation obliging certain television operators broadcasting programmes described as “of cultural value” to the bilingual Brussels region, is not in itself contrary to the free provision of services. Procedures should, nevertheless, be transparent and non-discriminatory in order to avoid imposing conditions on Belgian companies that do not apply to their foreign competitors. This is the substance of the decision made by the European Court of Justice on 13 December in case C-250/06.
Several Belgian distribution networks that provide their services to the bilingual region of Brussels-Capital (Belgium) are obliged to broadcast programmes from certain bodies controlled by the French or Flemish speaking Communities. This system aims top safeguard the pluralistic and cultural range of programmes to viewers. UDP, Coditel Brabant SPRL, Brutélé and Wolu TV ASBL are cases in point, namely, they have “must-carry” status. Together they took the Belgian state to the European Court of Justice because foreign broadcasters competing in the Brussels region are not subject to this obligation and therefore have greater freedom in their choice of programmes and provision of services.
The Court points out that, first of all, cultural policy can constitute an imperative general interest reason and therefore justifies a restriction to the free provision of services. However, it points out that the granting of the “must-carry” status has to be based on objective criteria. Particularly the obligation of broadcasting obligation only applying to channels whose overall programme content has an appropriate cultural objective. In addition, the number of channels reserved to private broadcasters should not exceed what is necessary. Procedures for the granting of “must carry” status have to be transparent. National regulation lists the principles and objectives but the Court says that it is not sufficient for enabling bodies that have been affected from determining whether those conditions are required. These procedures have to be non-discriminatory. The status must not be subject to a requirement of establishment on the national territory, which will reassure the applicants. The Court also says that it is up to the national courts to decide whether Belgian legislation complies with these criteria. It can be supposed that if the Belgian courts' decision does not compel Belgian broadcasters to respect the “must carry” obligations”, it will at least put Belgian and foreign competitors on an equal footing in this matter. (C.D.)