Master's Program 2004/2005 Technical and Fiscal Barriers ... - Lexnet

61996J0056 European Court reports 1997 Page I-03143 4
10 On 24 January 1995, the Raad van State suspended the Decision on VT4's application. It considered
that the ground for annulment based on infringement of Article 2(2) of the Directive was sufficiently
serious and that the requirement for serious damage was fulfilled. As a result, as from 1 February 1995
VT4 was able to distribute its programme on the cable television network in Flanders and Brussels. By
judgment of 2 March 1995 the Raad van State then confirmed the suspension it had previously ordered, so
that the VT4 programme could continue to be broadcast on the network for as long as the Raad van State
had not given a ruling in the main proceedings.
11 Before the national court, reference was made to the Commission proposal adopted on 22 March 1995
for amendment of the Directive (OJ 1995 C 185, p. 4) and which it submitted to the Council and
European Parliament on 31 May 1995 at the same time as the report on the application of the Directive
[COM(95)86 final-95/0074(COD)]. The point raised by that argument was the extent to which those texts
and the provisional results of negotiations which have been going on within the Council could have an
effect on the assessment of the Decision's legality.
12 It was in those circumstances that the Raad van State decided, before ruling on the substance, to stay
proceedings and to refer the following question to the Court for a preliminary ruling:
`At the time of the contested decision, may regard be had, for the purposes of interpreting Article 2 of
Council Directive 89/552/EEC of 3 October 1989 with regard to its scope ratione personae, to the
abovementioned report and proposal of 31 May 1995 of the Commission and to the abovementioned text
provisionally adopted by the Council of Ministers on 20 November 1995? If so, what meaning
overlapping the three different texts must be inferred for the purposes of that interpretation?'
13 It is apparent from the documents submitted to the Court that, by this question, raised before the Court
delivered its judgment of 10 September 1996 in Case C-222/94 Commission v United Kingdom [1996]
ECR I-4025, the Raad van State in effect seeks to ascertain the criteria for determining which broadcasters
come within a Member State's jurisdiction for the purposes of Article 2(1) of the Directive.
14 In Case C-222/94 Commission v United Kingdom the Court examined the interpretation to be given to
the term `jurisdiction' in the phrase `broadcasters under [a Member State's] jurisdiction' contained in the
first indent of Article 2(1) of the Directive.
15 As the Court held in paragraph 26 of that judgment, the Directive contains no express definition of the
phrase `broadcasters under its jurisdiction'.
16 In paragraph 40, after analysing the wording of Article 2(1) of the Directive, the Court concluded that
the concept of jurisdiction of a Member State, used in the first indent of that provision, had to be
understood as necessarily covering jurisdiction ratione personae over television broadcasters.
17 In paragraph 42 the Court went on to state that a Member State's jurisdiction ratione personae over a
broadcaster can be based only on the broadcaster's connection to that State's legal system, which in
substance overlaps with the concept of establishment as used in the first paragraph of Article 59 of the EC
Treaty, the wording of which presupposes that the supplier and the recipient of a service are `established'
in two different Member States.
18 It follows therefore that Article 2(1) of the Directive is to be interpreted as meaning that a television
broadcaster comes under the jurisdiction of the Member State in which it is established.
19 Where a television broadcaster has more than one establishment, the competent Member State is the
State in which the broadcaster has the centre of its activities. It is therefore for the national court to
determine, applying that criteria, which Member State has jurisdiction over VT4's activities, taking into
account in particular the place where decisions concerning programme policy are taken and the
programmes to be broadcast are finally put together (Case C-222/94 Commission
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