December 16, 2019
The claimant, TV Play Baltic, is an Estonian company which broadcasts packages of pay TV channels in Lithuania by means of a satellite network owned by a third party for which it pays it remuneration.
Under Lithuanian law, TV Play Baltic’s activities are categorised as the retransmission of TV programmes, meaning that it is subject to the obligation to rebroadcast the channels of the Lithuanian broadcaster, Lietuvos nacionalinis radijas ir televizija VšĮ (LRT), including the channel LRT Kultūra.
TV Play Baltic applied to the defendant, Lietuvos radijo ir televizijos komisija (Radio and Television Commission of Lithuania) (LRTK), for an exemption from the obligation to broadcast LRT Kultūra. The application was refused, so TV Play Baltic appealed to the Lithuanian court, which confirmed the obligation on TV Play Baltic. TV Play Baltic appealed to the Lithuanian Supreme Court, which referred various questions to the CJEU on the Framework Directive (2002/21/EC) and the Universal Service Directive (2002/22/EC).
The Lithuanian Supreme Court asked whether rebroadcasting channels over satellite networks owned by third parties means that the broadcaster is providing “an electronic communications network” under Article 2(m) of the Framework Directive.
The CJEU noted that, according to case law, an undertaking that only offers live streaming of TV programmes online does not provide an electronic communications network, but is providing access to audiovisual services on electronic communication networks. According to the CJEU, TV Play Baltic’s rebroadcasting of channels via satellite was no different to that of broadcasting such channels online, since it too is providing access to audiovisual services on an electronic communication network, in this case a satellite network.
This conclusion was supported by the fact that TV Play Baltic did not undertake any of the activities that a provider of an electronic communications network undertakes for the purposes of Article 2(m), i.e. it was not responsible for the establishment, operation, control or making available of such a network.
Therefore, Article 2(m) of the Framework Directive had to be interpreted as meaning that rebroadcasting channels over satellite networks owned by third parties does not constitute the “provision of an electronic communications network”.
The Lithuanian Supreme Court also asked whether Article 31(1) of the Universal Service Directive precludes Member States from imposing a “must carry” obligation to broadcast a TV programme on undertakings that rebroadcast, by means of satellite networks owned by third parties, TV channels that are protected by a conditional access system, and that offer their customers TV programme packages.
The CJEU noted that according to case law, the Framework Directive and the Universal Service Directive, which form part of the common regulatory framework, are without prejudice to measures taken at national level, in compliance with EU law, to pursue general interest objectives, in particular relating to content regulation and audiovisual policy.
Member States are therefore free to impose “must carry” obligations on undertakings that, without providing electronic communication networks, offer the live streaming of TV programmes online. Given that the rebroadcasting of TV channels protected by a conditional access system amounts to the provision of TV content, and the fact that there is no difference between providing such content via satellite or online, Article 31(1) of the Universal Service Directive must be interpreted as not precluding Member States from imposing a “must carry” obligation to broadcast a TV programme on undertakings such as TV Play Baltic.
The Lithuanian Supreme Court also asked the CJEU whether Article 56 of the Treaty on the Functioning of the European Union (TFEU), which provides that restrictions on the freedom to provide services is prohibited in respect of nationals of Member States who are established in a Member State other than that of the person for whom the services are intended, precludes Member States from imposing a “must carry” obligation on a broadcaster such as TV Play Baltic, even though the broadcaster for whose benefit that obligation exists is fully capable of broadcasting those TV channels itself over the same network with its own funds and, further, that obligation would cover only approximately 6% of all households and those households can already view that TV channel by means of terrestrial broadcasting or online.
The CJEU said that the Lithuanian law that imposes a “must carry” obligation to broadcast certain TV programmes on undertakings that, whatever their place of establishment, rebroadcast TV programmes via satellite, aimed at Lithuanian viewers, creates a restriction on the freedom to provide services for the purposes of Article 56.
Such a restriction may be justified where it serves overriding requirements in the public interest, is suitable for securing that objective and does not go beyond what is necessary. A cultural policy may constitute such an overriding requirement, provided it is suitable and proportional, the CJEU said.
Suitability is a question for the referring court, but the CJEU indicated that a “must carry” obligation may be suitable if it ensures that Lithuanian viewers, who do not have access to television via satellite, have the option of watching programmes from the LRT Kultūra channel, to which they would not otherwise have access.
As for proportionality, the referring court should take account of the number or percentage of end users who actually make use of satellite broadcasting. It should also take into consideration the geographical distribution of such end users, the fact that TV Play Baltic rebroadcasts the LRT Kultūra channel unencrypted, and the fact that that channel, or a large number of its programmes, is freely available online and via the terrestrial broadcasting network.
Therefore, the CJEU held, Article 56 does not preclude Member States from imposing a “must carry” obligation on a broadcaster such as TV Play Baltic provided that the restriction is justified as set out above. (Case C-87/19 TV Play Baltic AS v Lietuvos radijo ir televizijos komisija EU:C:2019:1063 (11 December 2019) — to read the judgment in full, click here).