Corte di giustizia UE/1996

61995C0011 [OSCURATO:PERSONA] delivered on 30 April 1996 ( *1 ) A — Introduction 1. The present case and [OSCURATO:PERSONA]222/94, in which I am also delivering my [OSCURATO:PERSONA] today, provide the [OSCURATO:PERSONA] with its first opportunity to address some of the central problems arising from [OSCURATO:PERSONA] 89/552/EEC of 3 October 1989 on the coordination of certain provisions laid down by law, regulation or administrative action in [OSCURATO:PERSONA] concerning the pursuit of television broadcasting activities ( 1 )(hereinafter ‘the [OSCURATO:PERSONA]’). Relevant provisions of [OSCURATO:PERSONA] law 2. [OSCURATO:PERSONA] has consistently held that the transmission of television signals — including those in the nature of advertisements — must be regarded as a provision of services within the meaning of [OSCURATO:PERSONA] 59 and 60 of the EC Treaty. ( 2 ) The scope of the freedom to provide services protected by those provisions is also applicable if a cable network operator established in one [OSCURATO:PERSONA] distributes television programmes of broadcasters from other [OSCURATO:PERSONA]. ( 3 ) 3. The principal objective pursued by the [OSCURATO:PERSONA] is to remove barriers to the free provision of television broadcasting services. ( 4 ) The recitals in the preamble to the directive state as follows: ‘[9] ... the laws, regulations and administrative measures in [OSCURATO:PERSONA] concerning the pursuit of activities as television broadcasters and cable operators contain disparities, some of which may impede the free movement of broadcasts within the [OSCURATO:PERSONA] and may distort competition within the common market; [10] ... all such restrictions on freedom to provide broadcasting services within the [OSCURATO:PERSONA] must be abolished under the Treaty; [11] ... such abolition must go hand in hand with coordination of the applicable laws; ... this coordination must be aimed at facilitating the pursuit of the professional activities concerned and, more generally, the free movement of information and ideas within the [OSCURATO:PERSONA]; [12] ... it is consequently necessary and sufficient that all broadcasts comply with the law of [the] [OSCURATO:PERSONA] from which they emanate’. ( 5 ) According to the grounds given by the [OSCURATO:PERSONA], the [OSCURATO:PERSONA] lays down ‘the minimum rules needed to guarantee freedom of transmission in broadcasting’. The organization, financing and content of programmes remain the responsibility of the [OSCURATO:PERSONA]. ( 6 ) The subsequent recitals provide that: ‘[14] ... it is necessary, in the common market, that all broadcasts emanating from and intended for reception in the [OSCURATO:PERSONA], and in particular those intended for reception in another [OSCURATO:PERSONA], should respect the law of the originating [OSCURATO:PERSONA] applicable to broadcasts intended for reception by the public in that [OSCURATO:PERSONA] and the provisions of this directive; [15] ... the requirement that the originating [OSCURATO:PERSONA] should verify that broadcasts comply with national law as coordinated by this directive is sufficient under [OSCURATO:PERSONA] law to ensure free movement of broadcasts without secondary control on the same grounds in the receiving [OSCURATO:PERSONA]; ... however, the receiving [OSCURATO:PERSONA] may, exceptionally and under specific conditions, provisionally suspend the retransmission of televised broadcasts’. ( 7 ) 4. [OSCURATO:PERSONA] 1 of the [OSCURATO:PERSONA], which comprises Chapter I thereof, sets out a number of definitions. The term ‘television broadcasting’, inter alia, is there defined for the purposes of the directive. According to that definition, that term is there to be understood as meaning ‘the initial transmission by wire or over the air, including that by satellite, in unencoded or encoded form, of television programmes intended for reception by the public’. 5. Chapter II of the directive (‘[OSCURATO:PERSONA] provisions’) contains [OSCURATO:PERSONA] 2 and 3. Those articles provide as follows: ‘[OSCURATO:PERSONA] 2 1.   [OSCURATO:PERSONA] shall ensure that all television broadcasts transmitted — by broadcasters under its jurisdiction, or — by broadcasters who, while not being under the jurisdiction of any [OSCURATO:PERSONA], make use of a frequency or a satellite capacity granted by, or a satellite up-link situated in, that [OSCURATO:PERSONA], comply with the law applicable to broadcasts intended for the public in that [OSCURATO:PERSONA]. 2.   [OSCURATO:PERSONA] shall ensure freedom of reception and shall not restrict retransmission on their territory of television broadcasts from other [OSCURATO:PERSONA] for reasons which fall within the fields coordinated by this directive. [OSCURATO:PERSONA] may provisionally suspend retransmission of television broadcasts if the following conditions are fulfilled: (a) a television broadcast coming from another [OSCURATO:PERSONA] manifestly, seriously and gravely infringes [OSCURATO:PERSONA] 22; (b) during the previous 12 months, the broadcaster has infringed the same provision on at least two prior occasions; (c) the [OSCURATO:PERSONA] concerned has notified the broadcaster and the [OSCURATO:PERSONA] in writing of the alleged infringements and of its intention to restrict retransmission should any such infringement occur again; (d) consultations with the transmitting [OSCURATO:PERSONA] and the [OSCURATO:PERSONA] have not produced an amicable settlement within 15 days of the notification provided for in point (c), and the alleged infringement persists. [OSCURATO:PERSONA] shall ensure that the suspension is compatible with [OSCURATO:PERSONA] law. It may ask the [OSCURATO:PERSONA] concerned to put an end to a suspension which is contrary to [OSCURATO:PERSONA] law, as a matter of urgency. This provision is without prejudice to the infringements in question in the [OSCURATO:PERSONA] which has jurisdiction over the broadcaster concerned. 3.   (...) [OSCURATO:PERSONA] 3 1.   [OSCURATO:PERSONA] shall remain free to require television broadcasters under their jurisdiction to lay down more detailed or stricter rules in the areas covered by this directive. 2.   [OSCURATO:PERSONA] shall, by appropriate means, ensure, within the framework of their legislation, that television broadcasters under their jurisdiction comply with the provisions of this directive.’ 6. Chapter III (‘Promotion of distribution and production of television programmes’) contains, in [OSCURATO:PERSONA] 4 to 9, provisions which are designed to ensure ‘for [OSCURATO:PERSONA] productions ... a majority proportion in television programmes of all [OSCURATO:PERSONA]’. ( 8 ) Moreover, ‘new sources of television production’ ( 9 ) in the [OSCURATO:PERSONA] should be stimulated by reserving part of transmission time or the budgets of television producers for independent producers. 7. [OSCURATO:PERSONA] 4 of the directive accordingly prescribes that the [OSCURATO:PERSONA] shall ensure ‘where practicable and by appropriate means’ that broadcasters reserve for [OSCURATO:PERSONA] works ( 10 ) a majority proportion of their transmission time, excluding the time appointed to news, sports events, games, advertising and teletext services ([OSCURATO:PERSONA] 4(1)). If this proportion cannot be attained, it must not be lower than the average for 1988 or 1990 in the [OSCURATO:PERSONA] concerned ([OSCURATO:PERSONA] 4(2)). [OSCURATO:PERSONA] 5 of the directive requires [OSCURATO:PERSONA] to ensure, ‘where practicable and by appropriate means’, that broadcasters reserve at least 10% of their transmission time, or at least 10% of their programming budget, for [OSCURATO:PERSONA] works created by producers who are independent of broadcasters. 8. Chapter IV ([OSCURATO:PERSONA] 10 to 21) of the directive contains provisions relating to television advertising and sponsorship. [OSCURATO:PERSONA] 14 prohibits television advertising for medicinal products and medical treatment available only on prescription in the [OSCURATO:PERSONA] within whose jurisdiction the broadcaster falls. [OSCURATO:PERSONA] 15 lays down various criteria with which television advertisements for alcoholic beverages must comply. 9. Chapter V ([OSCURATO:PERSONA] 22) of the directive deals with the protection of minors. This requires [OSCURATO:PERSONA] to ensure that television broadcasts by broadcasters under their jurisdiction do not include programmes ‘which might seriously impair the physical, mental or moral development of minors, in particular those involving pornography or gratuitous violence’. 10. Chapter VI ([OSCURATO:PERSONA] 23) of the directive deals with the right of reply. Chapter VII ([OSCURATO:PERSONA] 24 to 27) contains final provisions. [OSCURATO:PERSONA] 25(1) of the directive, [OSCURATO:PERSONA] were required to bring into force the laws, regulations and administrative provisions necessary to comply with that directive not later than 3 October 1991. [OSCURATO:PERSONA] 25(2) of the directive, the text of the main provisions of national law adopted by the [OSCURATO:PERSONA] in the fields governed by the directive had to be communicated to the [OSCURATO:PERSONA]. Legal position in [OSCURATO:PERSONA] 11. [OSCURATO:PERSONA] the regions are to a large extent responsible for television. I therefore set out below the legal position with regard to the [OSCURATO:PERSONA], the [OSCURATO:PERSONA], the bilingual [OSCURATO:PERSONA] and the [OSCURATO:PERSONA] in each case. Legal position in the [OSCURATO:PERSONA] 12. In the [OSCURATO:PERSONA] the provisions which are relevant here are contained in the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] of 17 July 1987 on the audio-visual sector ( 11 ) (hereinafter ‘the [OSCURATO:PERSONA] of 17 July 1987’) — in the version resulting from the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] of 19 July 1991. ( 12 ) 13. [OSCURATO:PERSONA] 20 et seq. of the [OSCURATO:PERSONA] of 17 July 1987 concern the broadcasting of radio and television programmes by cable networks. 14. [OSCURATO:PERSONA] 22(1) concerns the programmes of [OSCURATO:PERSONA] television channels. According to [OSCURATO:PERSONA] 22(2) of the decree, the ‘distributor’ — that is, the operator of such a cable network — may, with the prior written consent of the [OSCURATO:PERSONA] (that is, the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] — ‘Exécutif de la Communauté française’), distribute programmes of other television channels which have been approved by the [OSCURATO:PERSONA] in which they are established and which comply with the conditions laid down by the [OSCURATO:PERSONA] in the instrument by which it gave its consent. That consent may be revoked. Cable network operators therefore need the prior authorization of the [OSCURATO:PERSONA] if they wish to distribute over their network the programmes of foreign channels, and hence also broadcasts from other [OSCURATO:PERSONA]. Such authorization is given only if the broadcaster has previously concluded with the [OSCURATO:PERSONA] an agreement governed by private law. A special outline for such agreements is given in the [OSCURATO:PERSONA] of 22 December 1988. ( 13 ) In these agreements broadcasters must inter alia undertake to devote a portion of their budget to the purchase or production of [OSCURATO:PERSONA] works. 15. [OSCURATO:PERSONA] 26 of the decree governs the question of the permissibility of television advertising. According to [OSCURATO:PERSONA] 26(2), television broadcasters who comply with the conditions laid down by the [OSCURATO:PERSONA] under [OSCURATO:PERSONA] 22(2) may broadcast commercial advertisements intended in particular for viewers in the [OSCURATO:PERSONA] (‘publicité commerciale plus particulièrement destinée aux téléspectateurs de la Communauté française’), subject to express prior authorization from the [OSCURATO:PERSONA]. [OSCURATO:PERSONA] 26(3) the [OSCURATO:PERSONA] lays down the conditions governing the inclusion of advertising in television programmes. These conditions prescribe in particular that the television broadcaster concerned must be involved in encouraging the production of audio-visual programmes of the [OSCURATO:PERSONA] and the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] and in maintaining and promoting pluralism in the [OSCURATO:PERSONA] press. [OSCURATO:PERSONA] 26b(l) of the decree provides that television broadcasters covered by [OSCURATO:PERSONA] 26(2) may broadcast so-called ‘Télé-achat’ programmes ( 14 ) subject to express prior authorization from the [OSCURATO:PERSONA]. From the statements of the parties to these proceedings it is to be concluded that this provision concerns sales broadcasts intended particularly for viewers in the [OSCURATO:PERSONA]. 16. According to [OSCURATO:PERSONA] 22(2a) of the decree, the operator of a cable network may distribute programmes of television broadcasters who have authorization under [OSCURATO:PERSONA] 26(2) and who comply with the conditions laid down by the [OSCURATO:PERSONA] on the basis of [OSCURATO:PERSONA] 26(3). ( 15 ) Legal position in the [OSCURATO:PERSONA] 17. Here the relevant legal field was initially governed — in so far as concerns this case — by the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] of 28 January 1987 on transmission of radio and television programmes by radio and television cable networks and on the approval of private television companies ( 16 ) (hereinafter ‘the [OSCURATO:PERSONA] of 28 January 1987’). [OSCURATO:PERSONA] 3 of the decree, programmes of television broadcasters from other [OSCURATO:PERSONA] could be distributed over [OSCURATO:PERSONA] cable networks only if they were transmitted in one of the languages of the country of origin and subject — in so far as private broadcasters from other [OSCURATO:PERSONA] were concerned — to prior authorization from the [OSCURATO:PERSONA], to which conditions might be attached. 18. In its judgment in [OSCURATO:PERSONA]211/91 ( 17 ) (delivered on 16 December 1992) the [OSCURATO:PERSONA] of Justice declared that those rules were inter alia contrary to [OSCURATO:PERSONA] 59 and 60 of the Treaty. 19. On 4 May 1994 the [OSCURATO:PERSONA] issued a decree concerning radio and television cable networks and the authorization necessary for the establishment and operation of such networks and on promoting the broadcasting and production of television programmes ( 18 ) (hereinafter ‘the [OSCURATO:PERSONA] of 4 May 1994’). That decree repealed parts of the [OSCURATO:PERSONA] of 28 January 1987 (including [OSCURATO:PERSONA] 3) and re-regulated the matters concerned. 20. [OSCURATO:PERSONA] 3 of the [OSCURATO:PERSONA] of 4 May 1994 provides that no person shall establish or operate a cable network unless authorization has been granted by the [OSCURATO:PERSONA] in accordance with the conditions laid down in the decree. Such authorization mentions inter alia the programmes which may be distributed. Any modifications relating to the distribution of a new programme must be submitted for assent (‘goedkeuring’) to the [OSCURATO:PERSONA], which determines whether the conditions laid down in the decree are satisfied. The decision concerning assent to the modification or its refusal, as the case may be, are to be notified to the network operator within four months. The operator is entitled to proceed with the planned modification as soon as the authorities have given their assent or as soon as the period of four months has elapsed ([OSCURATO:PERSONA] 5(2) of the decree). 21. According to [OSCURATO:PERSONA] 10(2) of the decree, programmes of a television broadcaster who has received authorization from another [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] may be distributed over the network provided that the said broadcaster is subject in the [OSCURATO:PERSONA] concerned to the control applicable there to television broadcasters whose work is intended for public distribution in the [OSCURATO:PERSONA] concerned and that such control relates in fact also to compliance with the provisions of [OSCURATO:PERSONA] law. It is further required that the television broadcaster and the programmes broadcast by him do not endanger public policy, good morals and public security in the [OSCURATO:PERSONA]. Legal position in the bilingual [OSCURATO:PERSONA] 22. [OSCURATO:PERSONA] 127(2) of the [OSCURATO:PERSONA] the decrees issued by the [OSCURATO:PERSONA] and the [OSCURATO:PERSONA] apply also to the operators of cable networks established in the bilingual [OSCURATO:PERSONA] in so far as by reason of their activity they must be classed with one community or the other. ( 19 ) 23. For other cable network operators in that region the [OSCURATO:PERSONA] on [OSCURATO:PERSONA] and [OSCURATO:PERSONA] and the Pursuit of the Activity of [OSCURATO:PERSONA] in the [OSCURATO:PERSONA], ( 20 ) promulgated on 30 March 1995, now applies. Legal position in the [OSCURATO:PERSONA] 24. At first the [OSCURATO:PERSONA] of 24 December 1966 on [OSCURATO:PERSONA] for the Distribution of [OSCURATO:PERSONA] ( 21 ) applied to the [OSCURATO:PERSONA]. According to [OSCURATO:PERSONA] 21 of that decree advertisements inter alia could not be retransmitted. ( 22 ) 25. The legal basis for that decree was [OSCURATO:PERSONA] 13 of a Law of 26 January 1960, ( 23 ) which was repealed by [OSCURATO:PERSONA] 30 of the Law of 13 July 1987. ( 24 ) Accordingly, there is in the [OSCURATO:PERSONA] at present no legal provision under which the re-transmission of television broadcasts could be prohibited. ( 25 ) The course of the procedure 26. On 3 November 1992 the [OSCURATO:PERSONA] sent the [OSCURATO:PERSONA] of [OSCURATO:PERSONA] a letter giving it, in pursuance of [OSCURATO:PERSONA] 169 of the Treaty, the opportunity to submit its observations on the complaints made by the [OSCURATO:PERSONA]. In the letter the [OSCURATO:PERSONA] took the view that [OSCURATO:PERSONA] 2(2) of the [OSCURATO:PERSONA] had not been duly transposed into national law either in the three language communities or in the [OSCURATO:PERSONA]. As far as the [OSCURATO:PERSONA] was concerned, the [OSCURATO:PERSONA] complained in addition of an infringement of [OSCURATO:PERSONA] 13, 14, 15 and 23 of the directive. With regard to the [OSCURATO:PERSONA] it complained of an infringement of [OSCURATO:PERSONA] 4, 5, 22 and 23 of the directive. Finally it claimed that Chapters III and IV of the directive had not been duly implemented in the [OSCURATO:PERSONA] or in the [OSCURATO:PERSONA]. 27. [OSCURATO:PERSONA] thereafter received a letter of 5 April 1993 presenting the views of the [OSCURATO:PERSONA]. It also received a letter of 21 April 1993 containing the comments of the [OSCURATO:PERSONA]. 28. On 10 January 1994 the [OSCURATO:PERSONA] sent the [OSCURATO:PERSONA] of [OSCURATO:PERSONA] a reasoned opinion in which it alleged that the [OSCURATO:PERSONA] of [OSCURATO:PERSONA] had not informed the [OSCURATO:PERSONA] sufficiently precisely of the measures it had adopted or proposed to adopt for the complete implementation of the directive. Moreover the [OSCURATO:PERSONA] of [OSCURATO:PERSONA] had not duly implemented [OSCURATO:PERSONA] 2(2) of the directive as regards the three language communities or the [OSCURATO:PERSONA]. With regard to the [OSCURATO:PERSONA] the [OSCURATO:PERSONA] further complained of an infringement of [OSCURATO:PERSONA] 14 and 15 of the directive. As regards the [OSCURATO:PERSONA] it complained of an infringement of [OSCURATO:PERSONA] 4, 5 and 22 of the directive. Finally it claimed that the provisions of the directive had not been duly implemented in the [OSCURATO:PERSONA] as far as broadcasters who could not be classed with either the [OSCURATO:PERSONA] or the [OSCURATO:PERSONA] were concerned. [OSCURATO:PERSONA] of [OSCURATO:PERSONA] had therefore, it was claimed, failed to fulfil its obligations under the [OSCURATO:PERSONA] and under [OSCURATO:PERSONA] 5 of the Treaty. [OSCURATO:PERSONA] therefore called upon the [OSCURATO:PERSONA] of [OSCURATO:PERSONA] to bring these infringements to an end within two months. 29. [OSCURATO:PERSONA] thereupon received a letter of 4 February 1994 enclosing a draft of a new decree of the [OSCURATO:PERSONA]. By a letter of 9 June 1994 the [OSCURATO:PERSONA] of [OSCURATO:PERSONA] sent the [OSCURATO:PERSONA] a copy of the [OSCURATO:PERSONA] of 4 May 1994 which had in the meantime been adopted. [OSCURATO:PERSONA] reply was contained in a letter of 11 April 1994. Finally the [OSCURATO:PERSONA] received a letter from a [OSCURATO:PERSONA] of 7 April 1994 going into the complaints relating to the [OSCURATO:PERSONA]. 30. On 16 January 1995 the [OSCURATO:PERSONA] brought an action before the [OSCURATO:PERSONA] of Justice on the basis of [OSCURATO:PERSONA] 169 of the Treaty, which forms the subject-matter of these proceedings. In its application the [OSCURATO:PERSONA] claimed a declaration that: — by maintaining in respect of the [OSCURATO:PERSONA] in the [OSCURATO:PERSONA]-speaking region a system of prior authorization for retransmission by cable of television broadcasts from other [OSCURATO:PERSONA]; — by maintaining in respect of the [OSCURATO:PERSONA] in the [OSCURATO:PERSONA]-speaking region a system of express prior authorization, to which conditions are attached, for retransmission by cable of television broadcasts from other [OSCURATO:PERSONA] containing commercial advertising or teleshopping programmes especially intended for viewers in the [OSCURATO:PERSONA]; — by maintaining in respect of the [OSCURATO:PERSONA] in the Dutch-speaking region a system of prior authorization for retransmission by cable of television broadcasts from other [OSCURATO:PERSONA]; — by failing to adopt in respect of the bilingual [OSCURATO:PERSONA] of [OSCURATO:PERSONA] the laws, regulations and administrative measures necessary to comply with [OSCURATO:PERSONA] 2(2) of [OSCURATO:PERSONA] 89/552/EEC; — by failing to adopt in respect of the [OSCURATO:PERSONA] the laws, regulations and administrative measures necessary to comply with [OSCURATO:PERSONA] 2(2) of [OSCURATO:PERSONA] 89/552/EEC; — by failing to adopt in respect of the [OSCURATO:PERSONA] the laws, regulations and administrative measures necessary to comply fully with [OSCURATO:PERSONA] 14 and 15 of [OSCURATO:PERSONA] 89/552/EEC; the [OSCURATO:PERSONA] of [OSCURATO:PERSONA] had failed to fulfil its obligations under the [OSCURATO:PERSONA] and in particular under [OSCURATO:PERSONA] 2, 14 and 15 thereof. [OSCURATO:PERSONA] further claimed that the [OSCURATO:PERSONA] of [OSCURATO:PERSONA] should be ordered to pay the costs. 31. The defendant contends that the application should be dismissed as unfounded in so far as the [OSCURATO:PERSONA], the [OSCURATO:PERSONA] and the [OSCURATO:PERSONA] are concerned. In so far as the application concerns the [OSCURATO:PERSONA], it contends that the application should be dismissed as inadmissible or in the alternative as unfounded. Β — Discussion 32. I shall now consider first of all whether the [OSCURATO:PERSONA] complaint that the [OSCURATO:PERSONA] of [OSCURATO:PERSONA] has failed to fulfil its obligations under [OSCURATO:PERSONA] 2(2) of the [OSCURATO:PERSONA] is well founded. It will be necessary to make a separate examination of each of the three language regions and the bilingual [OSCURATO:PERSONA]. Finally, I shall have to consider the complaint that the [OSCURATO:PERSONA] of [OSCURATO:PERSONA] has infringed [OSCURATO:PERSONA] 14 and 15 of the directive in relation to the [OSCURATO:PERSONA]. I. Infringement of [OSCURATO:PERSONA] 2(2) of the [OSCURATO:PERSONA] 1. [OSCURATO:PERSONA] (a) [OSCURATO:PERSONA] 22(2) of the [OSCURATO:PERSONA] of 17 July 1987 33. [OSCURATO:PERSONA] takes the view that, according to [OSCURATO:PERSONA] 2(1) of the [OSCURATO:PERSONA], it is in principle only for the [OSCURATO:PERSONA] from which the broadcast emanates (the ‘originating [OSCURATO:PERSONA]’) ( 26 ) to check whether the television broadcaster concerned has complied with the law of that [OSCURATO:PERSONA] and the provisions of the [OSCURATO:PERSONA]. [OSCURATO:PERSONA] 2(2) of the directive requires the [OSCURATO:PERSONA] to ensure freedom of reception of television broadcasts from other [OSCURATO:PERSONA] and not to restrict their retransmission — with the exception contained in the second sentence of that paragraph — for reasons which fall within fields coordinated by the directive. It is therefore incompatible with that provision for a [OSCURATO:PERSONA] (the ‘receiving [OSCURATO:PERSONA]’) ( 27 ) to make the retransmission by a cable network of television broadcasts from other [OSCURATO:PERSONA] dependent on a prior authorization, as [OSCURATO:PERSONA] 22(2) of the [OSCURATO:PERSONA] of 17 July 1987 does. 34. [OSCURATO:PERSONA] of [OSCURATO:PERSONA] does not deny that the [OSCURATO:PERSONA] provisions require such an authorization. It takes the view, however, that the provision in question is in conformity with [OSCURATO:PERSONA] law. To demonstrate that it refers to a whole series of considerations which I shall later have to examine. 35. The defendant contends that there can be no infringement of the provisions of the directive for the very reason that they are not applicable to the field of cable television. That is, in any case, the position where it is not a case of an initial transmission over a cable network. ( 28 ) In that connection the defendant relies in particular on the definition of the concept of ‘television broadcasting’ in [OSCURATO:PERSONA] 1 (a) of the directive, according to which the meaning is inter aim ‘the initial transmission ... of television programmes.’ ( 29 ) [OSCURATO:PERSONA] view, the defendant contends, cannot be supported by the concept of ‘retransmission’ used in [OSCURATO:PERSONA] 2(2), which is not defined in the directive. If the intention had really been to include retransmission by cable, a different expression would have been used. [OSCURATO:PERSONA] 93/83/EEC of 27 September 1993 on the coordination of certain rules concerning copyright and rights related to copyright applicable to satellite broadcasting and cable retransmission ( 30 ) also uses the expression ‘cable retransmission’. Otherwise the [OSCURATO:PERSONA] would diverge from international terminology. ( 31 ) The defendant also points out that at the time when the [OSCURATO:PERSONA] was adopted cable television was not yet very widespread. It cannot therefore be assumed that the [OSCURATO:PERSONA] legislature wished to regulate that field. 36. These arguments do not convince me. In my view, there can be no doubt that the [OSCURATO:PERSONA] also covers the field of retransmission of programmes from other [OSCURATO:PERSONA] by cable networks. The contrary view cannot be based on the definition of the concept of ‘television broadcasting’ if only because [OSCURATO:PERSONA] 2(2) of the directive does not refer to that expression as such but to ‘retransmission’. Nor can it be deduced from [OSCURATO:PERSONA] 93/83 that the concept of ‘retransmission’ is not applicable to the activity of operators of cable networks. On the contrary, that directive supports the [OSCURATO:PERSONA] view. In it the concept of ‘cable retransmission’ is defined as ‘retransmission’ of programmes ‘by a cable or microwave system’. ( 32 ) That confirms my view that the concept of ‘retransmission’ is quite broad enough, in the view of the [OSCURATO:PERSONA] legislature, to cover also transmission by cable networks. 37. Moreover, it may be clearly seen from the [OSCURATO:PERSONA] that the intention is that it should be applicable to cable retransmission of television broadcasts. In this connection the [OSCURATO:PERSONA] rightly points to the ninth and tenth recitals in the preamble. ( 33 ) There reference is made inter alia to the impediments which may arise for freedom to provide services from the disparities between national measures concerning ‘the pursuit of activities ... as cable operators’. ‘All such restrictions on freedom to broadcast within the [OSCURATO:PERSONA] must in the [OSCURATO:PERSONA]'s view be abolished.’ ( 34 ) In this connection the Agreement on the [OSCURATO:PERSONA], signed on 2 May 1992 and approved by the [OSCURATO:PERSONA] by decision of the [OSCURATO:PERSONA] and [OSCURATO:PERSONA] of 13 December 1993, ( 35 ) seems to be of some interest. For the purposes of that agreement an addition to [OSCURATO:PERSONA] 15 of the [OSCURATO:PERSONA] was made according to which the EFTA [OSCURATO:PERSONA] were to remain free to ‘compel the cable companies operating on their territories to scramble or otherwise obscure spot advertisements for alcoholic beverages’, but that ‘exception’ was not to ‘have the effect of restricting the retransmission’ of other television programmes. ( 36 ) This, too, confirms the [OSCURATO:PERSONA] view that the [OSCURATO:PERSONA] is applicable to cable television. 38. Moreover, the [OSCURATO:PERSONA] rightly points out that in the [OSCURATO:PERSONA] on [OSCURATO:PERSONA] ( 37 ) adopted by the [OSCURATO:PERSONA] of [OSCURATO:PERSONA] on 5 May 1989 the concept of ‘retransmission’ is used. According to [OSCURATO:PERSONA] 3 thereof, the [OSCURATO:PERSONA] is also applicable to programmes retransmitted by cable. [OSCURATO:PERSONA] was adopted only a few months before the [OSCURATO:PERSONA]. That shows that at the material time thought had clearly been devoted — contrary to the view expressed by the defendant — to regulating the field of cable television. The fact, mentioned by the defendant, that [OSCURATO:PERSONA] does not yet appear to have ratified that [OSCURATO:PERSONA] is therefore irrelevant. 39. The defendant's assertion that the [OSCURATO:PERSONA] does not cover the field of cable television must therefore be rejected, as must the defendant's objection that the [OSCURATO:PERSONA] provisions would apply only to domestic cable network operators so that there was no restriction of freedom to provide services. It must in fact be stated that, according to case-law, the distribution of television programmes from other [OSCURATO:PERSONA] does indeed fall within the field of application of freedom to provide services. ( 38 ) From the ninth recital in the preamble to the [OSCURATO:PERSONA] it may be seen that it was intended precisely to serve the purpose of harmonizing national measures restricting that freedom. 40. The defendant further contends that the requirement of authorization serves in practice chiefly to determine which [OSCURATO:PERSONA] law is applicable to a television broadcaster in accordance with [OSCURATO:PERSONA] 2(1) of the [OSCURATO:PERSONA]. In this connection it claims that the application of [OSCURATO:PERSONA] 2(1) might lead to difficulties and possibly result in two ‘[OSCURATO:PERSONA] the view that they had jurisdiction over one and the same television broadcaster. 41. That argument is unsound. Admittedly the application of [OSCURATO:PERSONA] 2(1) of the directive has given rise to difficulties ( 39 ) and a [OSCURATO:PERSONA] has therefore a legitimate interest in ascertaining which [OSCURATO:PERSONA] has jurisdiction over a given television broadcaster. However, it is quite obvious that a scheme which makes the retransmission of programmes from other [OSCURATO:PERSONA] dependent upon authorization goes too far and is not therefore covered by that interest. [OSCURATO:PERSONA] has rightly pointed out that the defendant would have had to show that the requirement of authorization was essential to enable the [OSCURATO:PERSONA] to obtain the necessary information and that there was no less restrictive way of achieving that. The defendant has not adduced any such proof. 42. There is another more fundamental consideration at the heart of the defendant's defence. [OSCURATO:PERSONA] of [OSCURATO:PERSONA] is of the opinion that [OSCURATO:PERSONA] 2(1) of the [OSCURATO:PERSONA] takes precedence over [OSCURATO:PERSONA] 2(2). Accordingly, all television broadcasts must comply with the law of the originating [OSCURATO:PERSONA] and — according to [OSCURATO:PERSONA] 3 of the directive — with the provisions of that directive. Such transmissions alone can benefit from the advantages of [OSCURATO:PERSONA] 2(2), that is to say, the other [OSCURATO:PERSONA] are required to ensure freedom of reception and not to restrict retransmission only if that condition is satisfied. From that the defendant deduces that the receiving [OSCURATO:PERSONA] is entitled to check whether the law of the originating [OSCURATO:PERSONA] and the provisions of the [OSCURATO:PERSONA] have been observed. In that respect the defendant claims that the [OSCURATO:PERSONA] procedure contributes in particular to the fulfilment of [OSCURATO:PERSONA] 4 and 5 of the [OSCURATO:PERSONA]. In the oral procedure before the [OSCURATO:PERSONA] the defendant further stated that [OSCURATO:PERSONA] 4 of the directive appeared to be addressed to all [OSCURATO:PERSONA] and that it was therefore not the originating [OSCURATO:PERSONA] alone which had to ensure compliance therewith. 43. I do not think this point of view can be accepted. It would result in precisely that secondary control of television broadcasts by the receiving [OSCURATO:PERSONA] which the [OSCURATO:PERSONA] was intended to exclude. If the defendant's view were to be followed, the liberalization in the sphere of television brought about by the directive would be largely nullified. 44. The defendant's view is not compatible with either the wording or the purpose of the directive. According to [OSCURATO:PERSONA] 2(1) thereof, the originating [OSCURATO:PERSONA] must ensure that broadcasters under its jurisdiction or for whom it is responsible on other grounds comply with the law applicable to broadcasts intended for the public in that [OSCURATO:PERSONA]. [OSCURATO:PERSONA] 3(2) of the directive the originating [OSCURATO:PERSONA] must in addition ensure that television broadcasters under its jurisdiction comply with the provisions of the [OSCURATO:PERSONA]. [OSCURATO:PERSONA] obligations are addressed to the originating [OSCURATO:PERSONA]. [OSCURATO:PERSONA] are addressed in [OSCURATO:PERSONA] 2(2). They must ensure freedom of reception and are obliged not to restrict retransmission of the relevant broadcasts — with one exception referred to therein — for reasons falling within the fields coordinated by the directive. 45. That fully corresponds to the idea underlying in particular the fifteenth recital in the preamble to the directive, according to which the obligation of the originating [OSCURATO:PERSONA] to verify compliance with national law as coordinated by the directive is sufficient under [OSCURATO:PERSONA] law to ensure free movement of broadcasts ‘without secondary control on the same grounds in the receiving [OSCURATO:PERSONA]’. This clearly shows that the receiving [OSCURATO:PERSONA] must not be allowed to effect such a secondary control. The following, last, sentence of the fifteenth recital emphasizes that point by stating that the receiving [OSCURATO:PERSONA] may, however, ‘exceptionally and under specific conditions’‘provisionally’ suspend the retransmission of a programme. 46. Express authority for the receiving [OSCURATO:PERSONA] to take action is to be found only in the second sentence of [OSCURATO:PERSONA] 2(2) of the [OSCURATO:PERSONA]. That authority is, however, severely restricted. First of all, it deals only with cases in which broadcasts from other [OSCURATO:PERSONA] infringe [OSCURATO:PERSONA] 22, that is to say, cases in which the broadcasts in question might seriously impair the physical, mental or moral development of minors. The receiving [OSCURATO:PERSONA] may, however, take action only if the infringements are manifest, serious and grave and if the broadcaster concerned has already infringed the same provision on several occasions and consultations with the transmitting [OSCURATO:PERSONA] and the [OSCURATO:PERSONA] have proved unavailing. From that detailed provision it can only be concluded that it is not intended that the receiving [OSCURATO:PERSONA] shall be entitled to adopt unilateral measures against broadcasts from other [OSCURATO:PERSONA] if the conditions set out therein are not met. Similarly, it may be concluded from that provision that the receiving [OSCURATO:PERSONA] is not entitled to adopt unilateral measures against broadcasts from other [OSCURATO:PERSONA] if there is, or is alleged to be, an infringement of other provisions of the [OSCURATO:PERSONA]. That corresponds entirely to the statement already quoted from the fifteenth recital in the preamble to the directive. The defendant's view that the rule set out in the second sentence of [OSCURATO:PERSONA] 2(2) does not exclude the receiving [OSCURATO:PERSONA] right to check that other provisions of the directive have been observed is therefore not tenable. 47. This rule is therefore clearly based on the consideration that every [OSCURATO:PERSONA] must rely on the competent [OSCURATO:PERSONA] performing its duties of control under [OSCURATO:PERSONA] 2(1) and 3(2) of the directive as regards the broadcasters for which it is responsible. Moreover, that idea is also expressed in the provision already cited since the fifth sentence of [OSCURATO:PERSONA] 2(2) makes it quite clear that the possibility that the receiving [OSCURATO:PERSONA] may under strictly defined conditions take action against broadcasts from other [OSCURATO:PERSONA] with a view to the protection of minors is without prejudice to the right of the originating [OSCURATO:PERSONA] to take action with regard to the infringements in question. 48. It therefore seems clear to me that the [OSCURATO:PERSONA] is based on the idea that only the originating [OSCURATO:PERSONA] is to monitor compliance with its national law and the [OSCURATO:PERSONA]. As far as the field of application of the directive goes, the receiving [OSCURATO:PERSONA] is authorized to take action against the retransmission of broadcasts from other [OSCURATO:PERSONA] only in the cases strictly defined in the second sentence of [OSCURATO:PERSONA] 2(2) of the directive. 49. It appears clearly from the defendant's statements that the contested provision of the [OSCURATO:PERSONA] is designed in particular to ensure that [OSCURATO:PERSONA] 4 and 5 of the directive are observed. Contrary to the defendant's opinion, however, it is my view that precisely in this sphere the receiving [OSCURATO:PERSONA] right to subject broadcasts from other [OSCURATO:PERSONA] to a secondary control cannot be accepted. [OSCURATO:PERSONA] 4 and 5 clearly link the duties which they impose to conditions relating to the special characteristics of the [OSCURATO:PERSONA] in question, which is also in the best position to judge ‘where practicable and by appropriate means’ what can and must be done to fulfil such obligations. It would not be acceptable for another [OSCURATO:PERSONA] to substitute its own assessment of what is practicable and appropriate for that of the originating [OSCURATO:PERSONA] by subjecting its broadcasts to a (further) control. 50. That does not mean that it would be impossible to check whether the originating [OSCURATO:PERSONA] had fulfilled its obligations. If a [OSCURATO:PERSONA] considers that another [OSCURATO:PERSONA] has failed to fulfil its obligations under the [OSCURATO:PERSONA] it may bring an action for infringement of the Treaty under [OSCURATO:PERSONA] 170 of the Treaty or request the [OSCURATO:PERSONA] itself to take action under [OSCURATO:PERSONA] 169 of the Treaty against the [OSCURATO:PERSONA] concerned. 51. Nor can the defendant claim that those procedures offer no appropriate legal protection on the ground that television broadcasts by their nature are extremely ephemeral events and that any harm they cause cannot be remedied. As the [OSCURATO:PERSONA] has rightly observed, in the course of such proceedings for infringement of the Treaty the [OSCURATO:PERSONA] may prescribe interim measures under [OSCURATO:PERSONA] 186 of the Treaty. But above all reference must be made once more to the conditions set out in the second sentence of [OSCURATO:PERSONA] 2(2) of the directive. If, even in such an important and sensitive sphere as that of protection of minors, a receiving [OSCURATO:PERSONA] is entitled to take unilateral action only under special conditions and even then not immediately, it would be hard to understand why such a right should be considered to exist when the question is one of complying with the quota rules set out in [OSCURATO:PERSONA] 4 and 5 for example. 52. Purely for the sake of completeness I would say that the requirement of authorization cannot be justified either by provisions such as [OSCURATO:PERSONA] 3(1) and 19, according to which [OSCURATO:PERSONA] may lay down stricter rules for television broadcasters under their jurisdiction, since we are dealing here with broadcasts from other [OSCURATO:PERSONA] by broadcasters who are not subject to the jurisdiction of the receiving [OSCURATO:PERSONA]. 53. As a result it may be stated that a secondary control of broadcasts from other [OSCURATO:PERSONA] by the receiving [OSCURATO:PERSONA], as envisaged by the contested provision of the [OSCURATO:PERSONA], is in principle incompatible with the [OSCURATO:PERSONA]. It should in any case be remembered that the [OSCURATO:PERSONA] are only obliged not to restrict retransmission of such broadcasts for reasons which fall within the fields coordinated by this directive. [OSCURATO:PERSONA] does not provide for a complete harmonization of the field of television activity. In the seventeenth recital it is expressly stated that the directive is ‘confined specifically to television broadcasting rules’ and is without prejudice to existing or future [OSCURATO:PERSONA] acts of harmonization ‘in particular to satisfy mandatory requirements concerning the protection of consumers and the fairness of commercial transactions and competition’. If it were possible, therefore, for the contested requirement of authorization to be based on reasons falling within fields not coordinated by the [OSCURATO:PERSONA], there would be no infringement of [OSCURATO:PERSONA] law. In this connection the defendant has put forward several arguments which I must now examine. 54. This is perhaps the appropriate juncture for a first brief examination of the defendant's argument based on [OSCURATO:PERSONA] 10 of the [OSCURATO:PERSONA] of [OSCURATO:PERSONA] of 4 November 1950 for the Protection of [OSCURATO:PERSONA] and [OSCURATO:PERSONA]. ( 40 ) [OSCURATO:PERSONA] the second sentence of [OSCURATO:PERSONA] 10(1) of that [OSCURATO:PERSONA], the right of freedom to express opinions protected by that article does not prevent [OSCURATO:PERSONA] from requiring the licensing of television enterprises. As the [OSCURATO:PERSONA] rightly states, however, the fact that a system under which television broadcasters require authorization from the [OSCURATO:PERSONA] concerned is compatible with the said [OSCURATO:PERSONA] of [OSCURATO:PERSONA] does not alter the fact that a corresponding requirement of authorization may be incompatible with [OSCURATO:PERSONA] law. 55. [OSCURATO:PERSONA] of [OSCURATO:PERSONA] pleads that the contested requirement of authorization is intended to make it possible to check whether the relevant broadcasts respect copyright and related rights. The defendant relies in this respect on [OSCURATO:PERSONA] 93/83, previously cited, and in particular on [OSCURATO:PERSONA] 8(1) thereof, which reads as follows: ‘[OSCURATO:PERSONA] shall ensure that when programmes from other [OSCURATO:PERSONA] are retransmitted by cable in their territory the applicable copyright and related rights are observed and that such retransmission takes place on the basis of individual or collective contractual agreements between copyright owners, holders of related rights and cable operators.’ 56. In the recitals in the preamble to the directive, the [OSCURATO:PERSONA] points out that in the field of copyright and related rights legal certainty is missing where programmes transmitted across frontiers through cable networks are concerned. Cable retransmission of such broadcasts is an act subject to copyright and rights related thereto. The cable operator therefore needs for the pursuit of his activity the authorization of every holder of rights. However, in the present state of the law he cannot be sure whether he has actually acquired all the rights covered by an agreement of that kind. ( 41 )‘The legal framework for the creation of a single audio-visual area laid down in [OSCURATO:PERSONA] 89/552/EEC must, therefore, be supplemented with reference to copyright’ ( 42 ) According to the directive the cable network operator must obtain the necessary authorizations by contractual agreements. In order to ensure that the smooth operation of contractual arrangements is not called in question by the intervention of outsiders holding rights in individual parts of a programme, ( 43 ) the directive provides in [OSCURATO:PERSONA] 9(1) that the [OSCURATO:PERSONA] must ensure that the right of copyright owners and holders of related rights may be exercised ‘only through a collecting society’. 57. It appears from the foregoing that the operator of a cable network must ensure that in the retransmission of broadcasts from other [OSCURATO:PERSONA] no copyrights or related rights are infringed. For that purpose, the operators must make agreements with collecting societies which exercise these rights on behalf of their owners. [OSCURATO:PERSONA] must ensure that provision is made for the protection of such rights. It may be assumed that the [OSCURATO:PERSONA] comply with this duty by imposing corresponding legal duties on cable network operators and ensuring that they are fulfilled. On the other hand, it is not clear why for that purpose it should be necessary to link retransmission to an authorization which is granted only if the foreign broadcasters concerned have concluded an agreement with the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA]. The defendant has not made any observations from which it might be deduced that the requirement of a prior authorization was necessary for the protection of copyright and that there was no less restrictive means of attaining that objective. 58. To justify the provision at issue the [OSCURATO:PERSONA] of [OSCURATO:PERSONA] also relies on [OSCURATO:PERSONA] 128 of the Treaty. Its view is that the [OSCURATO:PERSONA] must now be interpreted in the light of that provision, which was inserted in the EC Treaty by the Treaty on [OSCURATO:PERSONA] and forms the only article in Title IX (‘Culture’) of [OSCURATO:PERSONA] of the EC Treaty. [OSCURATO:PERSONA] 128(1) provides inter alia that the [OSCURATO:PERSONA] is to contribute to the flowering of the cultures of the [OSCURATO:PERSONA]. [OSCURATO:PERSONA] 128(4) the [OSCURATO:PERSONA] is to ‘take cultural aspects into account in its action under other provisions of the Treaty’. 59. The defendant appears to consider that this provision empowers the [OSCURATO:PERSONA] to subject broadcasts from other [OSCURATO:PERSONA] to a fresh control, though I am not clear how it arrives at this interpretation. [OSCURATO:PERSONA] itself also pursued cultural aims, particularly through the rules contained in [OSCURATO:PERSONA] 4 and 5. In so far as the receiving [OSCURATO:PERSONA] right, posited by the defendant, to check whether the originating [OSCURATO:PERSONA] has complied with its obligations under the [OSCURATO:PERSONA] is linked to compliance with those articles, this is a field which has been coordinated by the directive. But according to the clear wording of [OSCURATO:PERSONA] 2(2) of the directive, quoted several times already, the receiving [OSCURATO:PERSONA] may not restrict retransmission of television broadcasts from other [OSCURATO:PERSONA] for reasons which fall within the fields coordinated by the directive. Moreover, it must be stated that the fact — uncontested — that the [OSCURATO:PERSONA] have primary responsibility for questions of culture does not prevent the [OSCURATO:PERSONA] from adopting measures binding upon the [OSCURATO:PERSONA] for the implementation of fundamental freedoms even when — as is the case in the field of television — cultural considerations must also be taken into account. It is true that [OSCURATO:PERSONA] 128(5) of the Treaty expressly states that in order to contribute to the achievement of the objectives referred to in that article, apart from recommendations only incentive measures ‘excluding any harmonization of the laws and regulations of the [OSCURATO:PERSONA]’ may be adopted. Even the defendant, however, does not assert that as a result the legal basis for the [OSCURATO:PERSONA] has become inapplicable. [OSCURATO:PERSONA] 128 thus provides no support for the defendant's view. 60. The defendant relies in addition on the principle of subsidiarity now laid down in the second paragraph of [OSCURATO:PERSONA] 3b of the Treaty, but without making it clear how that principle is appropriate to support its view. In my opinion it is sufficient to state in this respect that the objectives sought by the directive could be achieved only by the coordination of national laws. [OSCURATO:PERSONA] legislation was therefore required. The defendant's view according to which the [OSCURATO:PERSONA] are empowered to subject broadcasts from other [OSCURATO:PERSONA] to a secondary control would therefore militate against the creation of that ‘single audio-visual area’ which the [OSCURATO:PERSONA] was intended to create. ( 44 ) This supports my view that the [OSCURATO:PERSONA] cannot derive such authority from the subsidiarity principle either. Moreover, according to the first paragraph of [OSCURATO:PERSONA] 3 b of the Treaty, the subsidiarity principle becomes applicable only in those fields which do not fall within the [OSCURATO:PERSONA] exclusive powers. Freedom to provide services, however, which is protected by [OSCURATO:PERSONA] 59 et seq. of the Treaty and which the [OSCURATO:PERSONA] is intended to implement does come — like the other subjects mentioned in [OSCURATO:PERSONA] 7a of the Treaty — within the [OSCURATO:PERSONA] exclusive powers. 61. Finally, it is necessary to consider the defendant's objection that the contested rules present no obstacle to freedom to provide services. The broadcasters concerned from other [OSCURATO:PERSONA] would willingly conclude with the [OSCURATO:PERSONA] the necessary agreements, which, moreover, were only for the purpose of implementing [OSCURATO:PERSONA] 4 and 5 of the [OSCURATO:PERSONA]. However, there can hardly be a free decision on the part of the broadcasters concerned. In any event the conclusion of such agreements is the condition for the relevant programmes' being fed into a cable network in the [OSCURATO:PERSONA]. The question of what discretion the [OSCURATO:PERSONA] has in the conclusion of such agreements is therefore in my view irrelevant. Moreover, in the defence the defendant has conceded that, at the time that document was lodged with the [OSCURATO:PERSONA], at least one broadcaster from another [OSCURATO:PERSONA] was not prepared to enter into such an agreement. ( 45 ) 62. On the other hand, the further objection raised by the defendant in this connection is more important, namely that the conclusion of such agreements is a particularly appropriate way of helping to promote the production of [OSCURATO:PERSONA] television programmes. [OSCURATO:PERSONA] 4 and 5 of the [OSCURATO:PERSONA] are, it is claimed, fulfilled thereby. Certainly, it is correct that the conclusion of agreements in which the broadcasters undertake to devote a portion of their budget to the purchase or production of [OSCURATO:PERSONA] works may serve the purpose pursued by the [OSCURATO:PERSONA] of promoting the production of television programmes in the [OSCURATO:PERSONA]. That, however, by no means changes the fact that the defendant is thereby arrogating to itself tasks and powers which, according to the [OSCURATO:PERSONA], should be reserved to the originating [OSCURATO:PERSONA]. The originating [OSCURATO:PERSONA] view of the scope of the obligations imposed on it by [OSCURATO:PERSONA] 4 and 5 of the directive to ensure ‘where practicable and by appropriate means’ the promotion of [OSCURATO:PERSONA] works may differ from that of the receiving [OSCURATO:PERSONA]. It is not acceptable for the receiving [OSCURATO:PERSONA] to impose its criteria on broadcasts from other [OSCURATO:PERSONA] to the extent of subjecting them to a secondary control. If an originating [OSCURATO:PERSONA] actually fails to fulfil its obligations under the [OSCURATO:PERSONA] in that respect it may be called to account by the other [OSCURATO:PERSONA] and if necessary an action may be brought against it before the [OSCURATO:PERSONA]. The directive provides for a right of self-help only in the previously cited second sentence of [OSCURATO:PERSONA] 2(2), the conditions for which are not present here. [OSCURATO:PERSONA] contested rules do indeed therefore form an obstacle to freedom to provide services. 63. The defendant contends, however, that the rules in question are justified by considerations of cultural policy and that there is therefore no infringement of [OSCURATO:PERSONA] 59 et seq. of the Treaty. In particular, it seems to be of the opinion that the provisions of the [OSCURATO:PERSONA] help to protect pluralism in the media. As the reference to pluralism in the press and the transmission of advertising broadcasts shows, this argument relates primarily to the rules contained in [OSCURATO:PERSONA] 26 and 26b of the [OSCURATO:PERSONA] of 17 July 1987, which I shall consider later. As the defendant is obviously of the opinion, however, that the rules contained in [OSCURATO:PERSONA] 22(2) of the decree may also be justified by this argument, I must discuss it here. 64. It may be concluded from the case-law that the maintenance and safeguarding of pluralism in the television sector or in the media in general is an objective of general interest which may justify restrictions on the freedom to provide services which is protected by [OSCURATO:PERSONA] 59 et seq. of the Treaty. ( 46 ) It is true that a [OSCURATO:PERSONA] can rely on such considerations of the general interest only in so far as the relevant national provisions of law have not been harmonized at [OSCURATO:PERSONA] level. ( 47 ) The defendant takes the view, however, that this question has not been definitively settled in the [OSCURATO:PERSONA]. [OSCURATO:PERSONA] relies for its contrary view on [OSCURATO:PERSONA] 10 et seq. of the rules contained in the directive. Those rules are, however, provisions of a rather technical nature which are only very indirectly related to diversity of opinion in the media. 65. The defendant has not therefore shown why the contested rules of the [OSCURATO:PERSONA] are necessary and proportional for protecting pluralism in the field of television or in the media in general. Nor are there any more detailed explanations with regard to the question of proportionality. Instead the defendant has simply made general assertions without offering any specific evidence for them. That cannot be regarded as sufficient. 66. It must therefore be concluded that the rules set out in [OSCURATO:PERSONA] 22(2) of the [OSCURATO:PERSONA] of 17 July 1987, subjecting the retransmission by cable of television broadcasts from other [OSCURATO:PERSONA] to prior authorization, infringe [OSCURATO:PERSONA] 2(2) of the [OSCURATO:PERSONA]. (b) [OSCURATO:PERSONA] 26(2) and 26b(l) of the [OSCURATO:PERSONA] of 17 July 1987 67. [OSCURATO:PERSONA] is of the opinion that the provisions of [OSCURATO:PERSONA] 26(2) of the [OSCURATO:PERSONA] of 17 July 1987, subjecting the retransmission by cable of television broadcasts from other [OSCURATO:PERSONA] containing commercial advertisements particularly addressed to viewers in the [OSCURATO:PERSONA] to prior authorization, infringes [OSCURATO:PERSONA] 2(2) of the [OSCURATO:PERSONA]. It bases that opinion on the same considerations as it has already put forward in connection with [OSCURATO:PERSONA] 22(2) of that decree. [OSCURATO:PERSONA] view is that the provision under consideration here is even more restrictive than that of [OSCURATO:PERSONA] 22(2) of the decree which required prior authorization, whereas [OSCURATO:PERSONA] 26(2) of the decree even requires an express prior authorization. The same is true correspondingly of the rules contained in [OSCURATO:PERSONA] 26b(l) of the decree as regards sales broadcasts. 68. [OSCURATO:PERSONA] of [OSCURATO:PERSONA] contends that the rules in question are justified as they serve to put an end to circumvention of the national rules. The requirement of prior authorization allows the competent authority to check -whether a broadcaster is actually one to whom the [OSCURATO:PERSONA] applies. 69. In the defendant's opinion, the broadcasters affected by the rules in question are either foreign broadcasters seeking to avoid the application of the provisions of the [OSCURATO:PERSONA] or else foreign broadcasters who must be regarded under [OSCURATO:PERSONA] 2(1) of the [OSCURATO:PERSONA] as broadcasters under the jurisdiction of the [OSCURATO:PERSONA]. 70. In the first place as regards the defendant's assertion that the contested rules are essential in order to provide the receiving [OSCURATO:PERSONA] with the necessary information about the various broadcasters I need only refer to what I said with regard to [OSCURATO:PERSONA] 22(2) of the [OSCURATO:PERSONA] of 17 July 1987. ( 48 ) The defendant has not shown that to obtain the information it needed it was necessary to make retransmission of the broadcasts concerned subject to an express prior authorization. 71. As regards the subject-matter, both parties agree that the [OSCURATO:PERSONA] has not deprived [OSCURATO:PERSONA] of the right to resist, in certain circumstances, the circumvention of their legislation. I share that view. It is consistent with the present case-law of the [OSCURATO:PERSONA] on freedom to provide services. As long ago as 1974 the [OSCURATO:PERSONA] decided in the [OSCURATO:PERSONA] case that a [OSCURATO:PERSONA] cannot be denied the right to take measures ‘to prevent the exercise by a person providing services whose activity is entirely or principally directed towards its territory of the freedom guaranteed by [OSCURATO:PERSONA] 59 for the purpose of avoiding the professional rules of conduct which would be applicable to him if he were established within that [OSCURATO:PERSONA]’. ( 49 ) Some time ago the [OSCURATO:PERSONA] confirmed that case-law in its judgment in the TV 10 case. ( 50 ) 72. The last-mentioned judgment is of particular importance for this case. It concerned a broadcasting organization which had established itself in Luxembourg but broadcast programmes primarily for the [OSCURATO:PERSONA] market. In the view of the [OSCURATO:PERSONA] court which had referred the matter to the [OSCURATO:PERSONA] of Justice, the broadcaster concerned had established itself in Luxembourg in order to enable it to evade the application of the [OSCURATO:PERSONA] legislation. The freedom of establishment guaranteed by [OSCURATO:PERSONA] 59 of the Treaty was accordingly to be misused in order to circumvent the legislation of the receiving [OSCURATO:PERSONA]. 73. However, the [OSCURATO:PERSONA] rightly replies to the defendant that the rules at issue here cannot be justified on the ground that they were necessary in order to prevent circumvention of the legislation of the receiving [OSCURATO:PERSONA]. That would presuppose that all broadcasters from other [OSCURATO:PERSONA] broadcasting commercial advertisements or ‘télé-achat’ programmes addressed in particular to viewers in the [OSCURATO:PERSONA] could be accused of attempting to circumvent the legislation of the receiving [OSCURATO:PERSONA]. However, that is not the case. The charge of circumvention is justified only if the broadcaster in question is acting wrongfully. The TV10 judgment confirmed that the receiving [OSCURATO:PERSONA] was entitled to resist broadcasts from abroad if organizations which have established themselves in another [OSCURATO:PERSONA] have been able, by exercising the freedoms guaranteed by the Treaty, ‘wrongfully’ to evade the application of the legislation of the receiving [OSCURATO:PERSONA]. ( 51 ) 74. It cannot be accepted that every broadcaster from another [OSCURATO:PERSONA] transmitting advertising or sales broadcasts addressed particularly to viewers in the [OSCURATO:PERSONA] would on those grounds only be acting wrongfully. In the judgment previously cited in the action brought by the [OSCURATO:PERSONA] against [OSCURATO:PERSONA] for infringement of the Treaty in respect of provisions of the [OSCURATO:PERSONA] in the field of television, the [OSCURATO:PERSONA], with reference to the [OSCURATO:PERSONA] case, confirmed that the receiving [OSCURATO:PERSONA] is entitled to adopt provisions in order to prevent the misuse of [OSCURATO:PERSONA] 59 of the Treaty by a broadcaster whose activity is ‘entirely or principally directed towards its territory’. [OSCURATO:PERSONA] added, however: ‘[i]t does not follow that it is permissible for a [OSCURATO:PERSONA] to prohibit altogether the provision of certain services by operators established in other [OSCURATO:PERSONA], as that would be tantamount to abolishing the freedom to provide services’. ( 52 ) In my view, that case-law can also be extrapolated to the field of the [OSCURATO:PERSONA]. The fact that the directive applies also to such broadcasts is moreover confirmation of that. The fourteenth recital in the preamble to the directive (already quoted) states that all broadcasts emanating from and ‘intended for reception within the [OSCURATO:PERSONA] and in particular those intended for reception in another [OSCURATO:PERSONA]’ ( 53 ) must respect the law of the originating [OSCURATO:PERSONA]. A [OSCURATO:PERSONA] cannot therefore presume that all broadcasts of foreign broadcasters addressed in particular to the public in that [OSCURATO:PERSONA] will on that ground only represent an abuse. But that is exactly what is done by the rules of the [OSCURATO:PERSONA] at issue here. 75. Finally it should be noted that the entitlement of the receiving [OSCURATO:PERSONA] to take action, recognized by the [OSCURATO:PERSONA] in the [OSCURATO:PERSONA] and TV 10 judgments, represents an exception from one of the fundamental freedoms of the internal market. [OSCURATO:PERSONA] concerned must therefore demonstrate in every individual instance — as the [OSCURATO:PERSONA] has rightly claimed — that the case actually involves a wrongful act in the aforementioned sense. The rules at issue here do not meet that criterion since they subject the retransmission of advertising or sales broadcasts particularly addressed to viewers in the [OSCURATO:PERSONA] quite generally to a duty of express prior authorization. They cannot therefore be justified as averting such abuses. 76. Nor can the rules at issue find support in [OSCURATO:PERSONA] 3 of the [OSCURATO:PERSONA]. Certainly in the TV 10 case the [OSCURATO:PERSONA] decided that in the event of a wrongful act the receiving [OSCURATO:PERSONA] may regard a television organization established in another [OSCURATO:PERSONA] as a domestic broadcaster. ( 54 ) That presupposes, however, the existence of such an abuse, which can only be determined case by case. 77. For the reasons already mentioned the defendant cannot claim, either, that the rules at issue are compatible with [OSCURATO:PERSONA] 4 of the [OSCURATO:PERSONA]. ( 55 ) 78. The defendant relies in the alternative on the considerations already put forward with regard to [OSCURATO:PERSONA] 22(2) of the [OSCURATO:PERSONA] of 17 July 1987. I have already discussed these arguments and rejected them in dealing with that provision. 79. It must therefore be stated that the rules contained in [OSCURATO:PERSONA] 26(2) and 26b(l) of the [OSCURATO:PERSONA] of 17 July 1987, according to which the retransmission by cable of television broadcasts from other [OSCURATO:PERSONA] containing commercial advertising or sales broadcasts addressed particularly to viewers in the [OSCURATO:PERSONA] must be expressly authorized in advance, infringe [OSCURATO:PERSONA] 2(2) of the [OSCURATO:PERSONA]. 2. [OSCURATO:PERSONA] (a) Admissibility of the application 80. [OSCURATO:PERSONA] of [OSCURATO:PERSONA] contends that the [OSCURATO:PERSONA] application is inadmissible in so far as it concerns the [OSCURATO:PERSONA] provision. The defendant puts forward three arguments in support of that contention. First, the [OSCURATO:PERSONA], contrary to [OSCURATO:PERSONA] 169 of the Treaty, gave it no opportunity to submit its observations before bringing the action. Secondly, the [OSCURATO:PERSONA] did not take into account the legal situation obtaining at the time at which it delivered its reasoned opinion. Finally the reasoned opinion and the application were not based on the same reasons and pleas in law. 81. With regard to the defendant's first objection it must be stated that in the letter of 3 November 1992 the [OSCURATO:PERSONA] gave the defendant the opportunity to submit observations before it made its application to the [OSCURATO:PERSONA]. It is equally clear that that letter and the complaints contained therein did not relate to the [OSCURATO:PERSONA] of 4 May 1994 for the natural reason that that decree had not yet been issued when the [OSCURATO:PERSONA] sent its letter. In the last resort the defendant's objection amounts to stating that after the said decree was issued the [OSCURATO:PERSONA] ought to have introduced fresh proceedings. As this is therefore a complaint that there was no proper pre-litigation procedure, it would be appropriate to deal with it together with the third objection. 82. In this respect the defendant relies on the consistent case-law of the [OSCURATO:PERSONA] according to which an action against a [OSCURATO:PERSONA] for failure to fulfil obligations cannot be founded on complaints other than those formulated in the reasoned opinion. ( 56 ) In view of the case-law referred to, the application is inadmissible, it is contended, since it is founded on the legal situation resulting from the [OSCURATO:PERSONA] of 4 May 1994, which was not the subject of the reasoned opinion. 83. [OSCURATO:PERSONA] points out, however, that where the contested national legislation is amended during the course of the proceedings the [OSCURATO:PERSONA] in certain circumstances permits exceptions from the principle mentioned. The judgment which it refers to states, with reference to the finding that the reasoned opinion and the application must be based on the same complaints: ‘That requirement cannot, however, go so far as to make it necessary that in every event the national provisions mentioned in the reasoned opinion and in the application should be completely identical. Where a change in the legislation occurred between those two phases in the procedure, it is sufficient that the system established by the legislation contested in the pre-litigation procedure has as a whole been maintained by the new measures which were adopted by the [OSCURATO:PERSONA] after the issue of the reasoned opinion and have been challenged in the application’. ( 57 ) In that case the [OSCURATO:PERSONA] pointed out that in the pre-litigation procedure the [OSCURATO:PERSONA] had criticized the temporary application of different tax rates. According to the [OSCURATO:PERSONA]'s findings that difference had been perpetuated, if not aggravated, by the national Law issued during the course of the proceedings. ( 58 ) 84. In this case, one of the complaints made by the [OSCURATO:PERSONA] in the reasoned opinion was that the [OSCURATO:PERSONA] of 28 January 1987 made the retransmission over [OSCURATO:PERSONA] cable networks of programmes by broadcasters from other [OSCURATO:PERSONA] subject to a prior authorization to which conditions might be attached. In addition the [OSCURATO:PERSONA] pointed out that that provision had been regarded by the [OSCURATO:PERSONA] as an infringement of [OSCURATO:PERSONA] 59 and 60. In the application the [OSCURATO:PERSONA] complains that the defendant has maintained rules under which the retransmission by cable of television broadcasts from other [OSCURATO:PERSONA] must be authorized in advance. 85. It is correct that the [OSCURATO:PERSONA] of 4 May 1994 introduced considerable changes as compared with the previous legal position. For this reason therefore the objection of inadmissibility raised by the defendant is entirely understandable. [OSCURATO:PERSONA] has taken these changes into account in so far as it has not repeated in the application some of the complaints made in the reasoned opinion. The defendant also points out, not entirely incorrectly, that a considerable time elapsed after the decree was issued before the [OSCURATO:PERSONA] made its application. 86. Nevertheless I think there are stronger grounds for regarding the application as admissible in that respect also. Like the [OSCURATO:PERSONA], I feel that the [OSCURATO:PERSONA] of 4 May 1994 made no basic or even essential amendment as far as the complaint made by the [OSCURATO:PERSONA] in its application is concerned. The position remains, as before, that the retransmission by [OSCURATO:PERSONA] cable networks of television broadcasts from other [OSCURATO:PERSONA] is dependent on prior authorization. 87. The defendant objects that the [OSCURATO:PERSONA] of 4 May 1994 had replaced the requirement for authorization by a mere duty to provide information. That statement has not convinced me. It is quite clear from the decree that the operator of a cable network requires prior authorization from the [OSCURATO:PERSONA] authorities for the pursuit of his activities. As that authorization is granted under [OSCURATO:PERSONA] 3 of the decree on the conditions laid down in the decree, it also contains a decision as to whether the relevant programmes from other [OSCURATO:PERSONA] comply with the requirements laid down in [OSCURATO:PERSONA] 10 of the decree. ( 59 ) The same applies — although the national rules are less explicit in that respect — to programmes which a cable network operator intends to feed into his network at a later period. Any relevant alterations require the assent of the [OSCURATO:PERSONA] authorities. If the question were actually one of a duty to provide information only, it would be hard to understand why the cable network operator could not retransmit the new programme immediately. The fact that he may do so only with the prior assent of the authorities is evidence that the issue is in fact one of a constitutive authorization. The fact that the operator may retransmit the programme when four months have elapsed since the notification of the change in question in no way alters this analysis. In the first place, it is significant that the operator may not retransmit the programmes before that period has elapsed. Then it is clear that this provision may be applied only if the authorities do not refuse their assent before the end of the period. That possibility is expressly mentioned in the decree. ( 60 ) The defendant's statement in the defence that such assent has been refused once already shows that this is not a purely theoretical possibility. 88. The view I have expressed is consistent also with the purpose of the case-law already mentioned with regard to the requirements to be met by the pre-litigation procedure under [OSCURATO:PERSONA] 169 of the Treaty. On this question the [OSCURATO:PERSONA] has declared as follows in a recent order: ‘The purpose of the pre-litigation procedure is to give the [OSCURATO:PERSONA] concerned an opportunity to comply with its obligations under [OSCURATO:PERSONA] law or to avail itself of its right to defend itself against the complaints made by the [OSCURATO:PERSONA] (...). The proper conduct of the pre-litigation procedure constitutes an essential guarantee required by the Treaty not only in order to protect the rights of the [OSCURATO:PERSONA] concerned, but also so as to ensure that any contentious procedure will have a clearly defined dispute as its subject-matter.’ ( 61 ) 89. I think it is clear in this case that there can be no doubt with regard to the subject-matter of the proceedings. [OSCURATO:PERSONA] is complaining, as in the previous instance, that the [OSCURATO:PERSONA] makes the retransmission over its cable networks of the programmes of foreign broadcasters dependent upon a prior authorization. The fact that the provisions in question are now contained in the [OSCURATO:PERSONA] of 4 May 1994 is immaterial in this respect. Nor are the defendant's rights infringed if the application is regarded as admissible, since the defendant could not have been in any doubt which complaint the [OSCURATO:PERSONA] was making against it. Similarly, it could not have been unaware that the [OSCURATO:PERSONA] of 4 May 1994 would not be sufficient to remedy the infringement of which the [OSCURATO:PERSONA] complained. Moreover, the [OSCURATO:PERSONA] had already pointed out in its reasoned opinion that the draft of a new decree submitted to it on 5 July 1991 could not be regarded as sufficient. Finally, it is not apparent either that the [OSCURATO:PERSONA] way of proceeding was in any way detrimental to the defendant's opportunities to defend itself against the complaints made by the [OSCURATO:PERSONA]. 90. Moreover, if in a case like this the application were regarded as inadmissible the [OSCURATO:PERSONA] task would be made unnecessarily more difficult and as a result a [OSCURATO:PERSONA] which had not fulfilled its obligations at the right time would be granted an additional period in which to fulfil them. In this connection it should be pointed out that the [OSCURATO:PERSONA] of 4 May 1994 was undeniably issued only after the expiry of the period allowed the defendant by the [OSCURATO:PERSONA] in the reasoned opinion. 91. Finally, as regards the defendant's objection that the [OSCURATO:PERSONA] had failed to take account of the existing legal position when it delivered its reasoned opinion, it should be pointed out that the decree on which the defendant relies was issued only on 4 May 1994. Since the [OSCURATO:PERSONA] had to be guided by the legal situation actually prevailing, it had no need to examine any drafts of a new decree. Furthermore, it is quite clear that the defendant sent the [OSCURATO:PERSONA] a copy of the draft of the new decree only by letter of 4 February 1994 — that is, after it had received the reasoned opinion of 10 January 1994. 92. Having regard to these considerations I am of the opinion that the objection of inadmissibility raised by the defendant must be rejected. (b) Merits of the application 93. [OSCURATO:PERSONA] complains that the contested provisions of the [OSCURATO:PERSONA] infringed [OSCURATO:PERSONA] 2(2) of the [OSCURATO:PERSONA] because they made the retransmission through its cable networks of the programmes of broadcasters from other [OSCURATO:PERSONA] dependent on a prior authorization. [OSCURATO:PERSONA] 10(2) of the decree makes the authorization conditional upon the broadcaster's having an authorization in the originating [OSCURATO:PERSONA], upon a guarantee from the originating [OSCURATO:PERSONA] that the broadcaster will observe the provisions of the [OSCURATO:PERSONA] and upon public policy, good morals and public security in the [OSCURATO:PERSONA] not being endangered. None of those conditions is, however, permissible under the [OSCURATO:PERSONA]. 94. The defendant first contends that the contested provisions do not make the retransmission of programmes from other [OSCURATO:PERSONA] dependent on authorization from the [OSCURATO:PERSONA] authorities but impose only a duty to inform. I have already examined and rejected this objection in the context of considering the admissibility of the application. The contested provisions once again require retransmission to be previously authorized by the [OSCURATO:PERSONA] authorities. 95. As regards the conditions laid down by [OSCURATO:PERSONA] 10(2) of the [OSCURATO:PERSONA] of 4 May 1994, the defendant's view is that they are lawful. 96. The defendant contends that the requirement for the broadcaster concerned to be in possession of an authorization from the originating [OSCURATO:PERSONA] is reasonable and in no way conflicts with the [OSCURATO:PERSONA]. In this respect the defendant relies on an analogy with the [OSCURATO:PERSONA]. ( 62 ) 97. That argument cannot be upheld. [OSCURATO:PERSONA] prescribes that the [OSCURATO:PERSONA] must ensure that broadcasters under their jurisdiction comply with the law of the originating [OSCURATO:PERSONA] and the provisions of the [OSCURATO:PERSONA]. [OSCURATO:PERSONA] must comply with that obligation ‘by appropriate means’, as [OSCURATO:PERSONA] 3(2) of the directive states. The originating [OSCURATO:PERSONA] is not therefore obliged (though entitled) to make the activity of the broadcaster concerned dependent on authorization. It may dispense with it if there is some other way of ensuring that the provisions of national law and of the [OSCURATO:PERSONA] are observed. That may be seen from the thirteenth recital in the preamble to the directive according to which it is left to the [OSCURATO:PERSONA] to settle the question of ‘licensing [or] administrative authorization’. From the context it is clear that this refers in each case to the originating [OSCURATO:PERSONA] but not to the receiving [OSCURATO:PERSONA]. The requirement in [OSCURATO:PERSONA] 10(2) of the [OSCURATO:PERSONA] of 4 May 1994 of an authorization from the originating [OSCURATO:PERSONA] cannot therefore be reconciled with the [OSCURATO:PERSONA]. Whatever provisions the [OSCURATO:PERSONA] legislature has made in the banking sector is therefore of no consequence for this sector. The consideration put forward by the defendant, obviously in the alternative, to the effect that the concept of ‘assent’ is not to be interpreted strictly does not seem to me convincing in view of the wording of the provision. The defendant's argument that an infringement of the provisions of the directive may be ruled out on the ground that the directive was not clear in that respect is similarly irrelevant. Even were that the case, which I do not think it is, it would in no way change the fact of the infringement. In that respect, it is sufficient that the [OSCURATO:PERSONA] has objectively failed to fulfil its obligations; it is not a question of negligence. 98. The defendant justifies the requirement laid down in [OSCURATO:PERSONA] 10(2) of the [OSCURATO:PERSONA] of 4 May 1994 for the broadcaster to be subject to effective control in the originating [OSCURATO:PERSONA] by the consideration that only broadcasts by broadcasters who comply with the provisions of the [OSCURATO:PERSONA] are entitled to the benefit of the directive. The question, therefore, is whether the receiving [OSCURATO:PERSONA] is entitled to subject broadcasts from other [OSCURATO:PERSONA] to a secondary control in order to check whether the originating [OSCURATO:PERSONA] has complied with its obligations under the [OSCURATO:PERSONA]. That question has already been discussed in connection with the [OSCURATO:PERSONA] rules. As I stated then, the answer must be in the negative. ( 63 ) 99. With regard to the condition that programmes of foreign broadcasters may be transmitted by cable networks in Flanders only if they do not endanger public policy, good morals and public security in the [OSCURATO:PERSONA], the defendant argues that the [OSCURATO:PERSONA] has by no means coordinated the provisions of the [OSCURATO:PERSONA] within those fields. For that reason a control by the receiving [OSCURATO:PERSONA] to check whether those requirements have been met does not conflict with [OSCURATO:PERSONA] 2(2) of the directive. 100. It must be conceded that the matters mentioned by the defendant are indeed not expressly, or at least not fully, dealt with in the [OSCURATO:PERSONA]. Thus, for example, [OSCURATO:PERSONA] 12 of the directive lays down strict requirements with which television advertising must comply. For example, it must not prejudice respect for human dignity or be offensive to religious or political beliefs. For other broadcasts, however, there is no express provision apart from the second paragraph of [OSCURATO:PERSONA] 22, according to which television broadcasts must not contain any incitement to hatred on grounds of race, sex, religion or nationality. ( 64 ) It might therefore be thought that the [OSCURATO:PERSONA] wished to leave the receiving [OSCURATO:PERSONA] free to take action where necessary against broadcasts by foreign broadcasters if they regard that as necessary for the protection of public policy, good morals or public security. The fact that the [OSCURATO:PERSONA], as I have already said, does not regulate the television sector definitively and comprehensively might also be an indication to the same effect. 101. Such an interpretation would, however, largely nullify the liberalization at which the [OSCURATO:PERSONA] aims. As the defendant itself has said in this connection in the defence, this directive relies on the ‘fundamental principle of mutual trust’ of the [OSCURATO:PERSONA]. It may be seen also from the fifteenth recital, to which I have already referred several times, that the idea of the legislature was that control by the originating [OSCURATO:PERSONA] should be sufficient, whereas the receiving [OSCURATO:PERSONA] was to be entitled only on strictly circumscribed conditions to take action against the retransmission of broadcasts from other [OSCURATO:PERSONA]. The rule on protection of minors in [OSCURATO:PERSONA] 22 and the second sentence of [OSCURATO:PERSONA] 2(2) of the directive in particular shows that the directive also covers matters belonging to the field of public policy, good morals or public security. When in the regulated matter the [OSCURATO:PERSONA] legislature attached strict conditions to possible unilateral action by the receiving [OSCURATO:PERSONA] and provided for no corresponding powers for the receiving [OSCURATO:PERSONA] in other fields, the conclusion must be drawn that it was assumed that control by the originating [OSCURATO:PERSONA] was sufficient for protecting such legal interests. It is a question of implementation of the principle of mutual trust, already mentioned, which seems to have proved entirely effective in this respect. ( 65 ) 102. The legitimate interests of receiving [OSCURATO:PERSONA] are not unduly prejudiced as a result. Apart from the authority to take action provided for in the second sentence of [OSCURATO:PERSONA] 2(2) of the directive, they still have the possibility of bringing an originating [OSCURATO:PERSONA] which neglects its duties of control before the [OSCURATO:PERSONA] of Justice. The possibility of interlocutory relief makes it possible to obtain rapid redress if that should be necessary. 103. It should also be borne in mind that in cases in which programmes from other [OSCURATO:PERSONA] can be received directly in the receiving [OSCURATO:PERSONA] the latter has scarcely any other recourse against infringements of the [OSCURATO:PERSONA] by the originating [OSCURATO:PERSONA] than to bring an action before the [OSCURATO:PERSONA]. 104. The question whether a [OSCURATO:PERSONA] is in no case — however flagrant — entitled to take action for the protection of public policy, public security or good morals against the retransmission of broadcasts from other [OSCURATO:PERSONA] does not in any case need to be decided by the [OSCURATO:PERSONA]. It is not possible on any view, to justify, on grounds of the protection of these legal interests, a system which makes the retransmission over cable networks of broadcasts from other [OSCURATO:PERSONA] in general dependent on a prior authorization from the receiving [OSCURATO:PERSONA], as the contested [OSCURATO:PERSONA] rules do. Such a rule goes far beyond what is necessary for the protection of such legal interests. 105. I may mention purely for the sake of completeness that the defendant refers in connection with the provisions of the [OSCURATO:PERSONA] also to [OSCURATO:PERSONA] 93/83. In this respect I may refer to the remarks I made with regard to the arguments based on that directive when dealing with the provisions of the [OSCURATO:PERSONA]. ( 66 ) 106. It must therefore be stated that the rules contained in the [OSCURATO:PERSONA] of 4 May 1994 under which the cable retransmission of television broadcasts from other [OSCURATO:PERSONA] must be authorized in advance infringes [OSCURATO:PERSONA] 2(2) of the [OSCURATO:PERSONA]. 3. [OSCURATO:PERSONA] 107. [OSCURATO:PERSONA] also complains that the [OSCURATO:PERSONA] of [OSCURATO:PERSONA] has infringed [OSCURATO:PERSONA] 2(2) of the [OSCURATO:PERSONA] with regard to the bilingual [OSCURATO:PERSONA] as that provision has not been transposed into national law. 108. With regard to this complaint the defendant first stated in the defence only that a Law for the transposition of the directive had been promulgated on 30 March 1995. 109. In its reply the [OSCURATO:PERSONA] claimed that that Law had been issued too late. Moreover the content of that Law was based very largely on the rules contained in the [OSCURATO:PERSONA] of 4 May 1994 and was therefore open to the same objections as that decree. [OSCURATO:PERSONA] therefore reserved the right to bring an action on those grounds under [OSCURATO:PERSONA] 169 for failure to fulfil Treaty obligations. 110. The defendant thereupon stated in its rejoinder that there was no infringement of the [OSCURATO:PERSONA]. It contended, first, that, under [OSCURATO:PERSONA] 127(2) of the [OSCURATO:PERSONA], the decrees of the [OSCURATO:PERSONA] and of the [OSCURATO:PERSONA] were each applicable to the [OSCURATO:PERSONA], which had therefore no need to implement the directive itself. Moreover at the time at which the [OSCURATO:PERSONA] gave the defendant the opportunity to submit its observations there was no provision in the [OSCURATO:PERSONA] by which the right to retransmit broadcasts from abroad was restricted. Finally the [OSCURATO:PERSONA] application was also inadmissible in so far as it took exception to the new Law as there had been no pre-litigation procedure. 111. In view of the provisions of [OSCURATO:PERSONA] 42(2) of the Rules of Procedure of the [OSCURATO:PERSONA] of Justice I have serious doubts as to whether it was in any way permissible for the defendant to introduce that plea in law in the rejoinder. As, however, the defendant's argument seems to me to be unfounded in any case, that is a matter of no importance. 112. The defendant's objection of inadmissibility is pointless, since, although the [OSCURATO:PERSONA] does indeed mention the new Law in its observations, it has not made it the subject of the proceedings. The argument based on [OSCURATO:PERSONA] 127(2) of the [OSCURATO:PERSONA] is similarly unsound. [OSCURATO:PERSONA] that provision the decrees formulated by the [OSCURATO:PERSONA] and by the [OSCURATO:PERSONA] apply only to those persons who are to be classed as belonging to one or other of those communities. They accordingly do not apply to persons not in that position. [OSCURATO:PERSONA] promulgated on 30 March 1995, which, according to [OSCURATO:PERSONA] 3 thereof, applies only to persons who cannot be classed as belonging to either the [OSCURATO:PERSONA] or the [OSCURATO:PERSONA], expressly demonstrates, moreover, that there was an omission in that respect. 113. As regards the defendant's final objection, it should be pointed out that its argument seems inconsistent in this respect. [OSCURATO:PERSONA] it asserts on the one hand that at the material time there were no relevant provisions in the [OSCURATO:PERSONA] and therefore no provisions which could have restricted the right conferred by the [OSCURATO:PERSONA] to free retransmission of foreign broadcasts, it states on the other hand that the provisions of the [OSCURATO:PERSONA] and of the [OSCURATO:PERSONA] were applicable. From all that it is possible to conclude only that either the transposition of the directive took place too late for the [OSCURATO:PERSONA] (namely through the Law of 30 March 1995) or else that — if there really had been no restrictive provisions — there was an objectively unclear and obscure legal situation requiring clarification by the legislature. ( 67 ) 114. On these grounds it seems to me that the complaint made by the [OSCURATO:PERSONA] is well founded. 4. [OSCURATO:PERSONA] 115. With regard to the [OSCURATO:PERSONA] too the [OSCURATO:PERSONA] claims that the defendant has infringed [OSCURATO:PERSONA] 2(2) of the [OSCURATO:PERSONA] as it had not been transposed into national law. 116. The defendant contends in its defence that in the [OSCURATO:PERSONA] there were no provisions which could have restricted the right of free retransmission of broadcasts from abroad. [OSCURATO:PERSONA] of 24 December 1966 which originally covered that field had lapsed when [OSCURATO:PERSONA] 13 of the Law of 26 January 1960, on which it was based, was repealed by [OSCURATO:PERSONA] 30 of the Law of 13 July 1987. ( 68 ) 117. These particulars, which were provided by the defendant only during the course of the proceedings before the [OSCURATO:PERSONA], were not contested by the [OSCURATO:PERSONA] during the oral procedure. He did, however, express the view that in view of that legal situation, which was anything but clear, it would have been desirable for the legislature to take action to make it clear that the right of retransmission was actually guaranteed. I can only agree. In view of the circumstances depicted, it was essential to make the legal position clear in order to fulfil the obligations imposed by the [OSCURATO:PERSONA]. The uncertainties arising from the obscure legal situation jeopardized the full effectiveness of the rights which that directive was intended to ensure. 118. In that respect also the [OSCURATO:PERSONA] complaint is therefore well founded. II. Infringement of [OSCURATO:PERSONA] 14 and 15 of the [OSCURATO:PERSONA] 119. [OSCURATO:PERSONA] complains that the defendant has not fully transposed into national law [OSCURATO:PERSONA] 14 and 15 of the [OSCURATO:PERSONA] as far as the [OSCURATO:PERSONA] is concerned. [OSCURATO:PERSONA] 14 of the directive prohibits television advertising for medicinal products and medical treatment available only on prescription in the originating [OSCURATO:PERSONA], the relevant provision of national law prohibits only advertising for medicinal products. The requirements contained in [OSCURATO:PERSONA] 15 as regards television advertising for alcoholic beverages were imposed in the [OSCURATO:PERSONA] only on one broadcaster but not on others. Moreover the relevant provisions covered only alcoholic beverages containing more than 10% alcohol, whereas [OSCURATO:PERSONA] 15 of the directive applied to all alcoholic beverages. 120. As the [OSCURATO:PERSONA] has rightly stated, the defendant does not in principle dispute the complaints made against it. What is particularly noticeable is that the [OSCURATO:PERSONA] of [OSCURATO:PERSONA] in this respect merely reproduces the statements of the [OSCURATO:PERSONA] claiming that the implementation of [OSCURATO:PERSONA] 14 of the [OSCURATO:PERSONA] was a matter for the federal authorities. 121. In that respect also therefore the [OSCURATO:PERSONA] complaint is well founded. C — Conclusion 122. I therefore propose that the [OSCURATO:PERSONA] should allow the application in its entirety and order the [OSCURATO:PERSONA] of [OSCURATO:PERSONA] to pay the costs. ( *1 ) Original language: [OSCURATO:PERSONA]. ( 1 ) OJ 1989 L 298, p. 23 . ( 2 ) [OSCURATO:PERSONA] thus held as early as its judgment in [OSCURATO:PERSONA] 155/73 Sacchi [1974] ECR 409, at paragraph 6 . ( 3 ) Judgment in [OSCURATO:PERSONA] 352/85 Bond van Adverteerders and Others v [OSCURATO:PERSONA] [1988] ECR 2085, at paragraphs 14 to 17 . ( 4 ) Sec the judgment in [OSCURATO:PERSONA]412/93 Leclerc-Siplec v 777 Publicité and M6 Publicité [1995] ECR I-179, at paragraph 28 . Sec also the judgment of the EITA [OSCURATO:PERSONA] of 16 June 1995 in [OSCURATO:PERSONA]8/94 and E-9/94 Forbrukerombudet v [OSCURATO:PERSONA] A/S and [OSCURATO:PERSONA] A/S, at paragraph 22. ( 5 ) Ninth to twelfth recitals in the preamble to the [OSCURATO:PERSONA]. For the sake of clarity I have added the appropriate numbers in square brackets. ( 6 ) Thirteenth recital in the preamble to the [OSCURATO:PERSONA]. ( 7 ) Fourteenth and fifteenth recitals in the preamble to the [OSCURATO:PERSONA]. ( 8 ) Twentieth recital in the preamble to the [OSCURATO:PERSONA]. ( 9 ) Sec the twenty-fourth recital in the preamble to the [OSCURATO:PERSONA]. ( 10 ) This expression is defined in [OSCURATO:PERSONA] 6 of the directive. ( 11 ) [OSCURATO:PERSONA] of 22 August 1987, p. 12505. ( 12 ) Décret modifiant la loi du 6 février 1987 relative aux réseaux de radiodistribution et de télédistribution et à la publicité commerciale à la radio et à la télévision, le décret du 12 décembre 1977 portant statut de la [OSCURATO:PERSONA]-Télévision belge de la Communauté française (RTBF) et le décret du 17 juillet 1987 sur l'audiovisuel ([OSCURATO:PERSONA] of 2 October 1991, p. 21671). ( 13 ) [OSCURATO:PERSONA] of 17 March 1989, p. 4896; amended by the [OSCURATO:PERSONA] of 18 December 1991 ([OSCURATO:PERSONA] of 26 February 1992, p. 6532). ( 14 ) These are broadcasts in which offers for the purpose of sale, purchase or hiring of objects or for the purpose of the provision of services in return for payment arc made direct to viewers. ( 15 ) [OSCURATO:PERSONA] has formed the view (by implication) that this provision applies also to the distribution of ‘Télé-achat’ broadcasts under [OSCURATO:PERSONA] 26b of the [OSCURATO:PERSONA]. The defendant has not contested that interpretation of the relevant provisions. ( 16 ) [OSCURATO:PERSONA] of 19 March 1987, p. 4196. ( 17 ) [OSCURATO:PERSONA] v [OSCURATO:PERSONA] [1992] ECR I-6757. ( 18 ) [OSCURATO:PERSONA] of 4 June 1994, p. 15434. ( 19 ) Statement made by the defendant in the rejoinder and not challenged by the [OSCURATO:PERSONA] in the oral procedure. ( 20 ) The text of this Law is produced by the defendant in the annex to the defence. ( 21 ) [OSCURATO:PERSONA] of 24 January 1967, p. 604. ( 22 ) Statement made by the [OSCURATO:PERSONA] in its reply and not contested by the defendant. ( 23 ) [OSCURATO:PERSONA] of 6 February 1960, p. 726. ( 24 ) [OSCURATO:PERSONA] of 12 August 1987, p. 12071. ( 25 ) The defendant made these statements in the rejoinder. [OSCURATO:PERSONA] has not contested them. ( 26 ) Hereinafter I shall use this expression which is also used, moreover, in the fourteenth recital in the preamble to the [OSCURATO:PERSONA]. The question which [OSCURATO:PERSONA] is competent in a specific case is discussed in greater detail in my [OSCURATO:PERSONA] in [OSCURATO:PERSONA]222/94. ( 27 ) Here too, for the sake of simplicity, I follow the terminology of the recitals in the preamble to the [OSCURATO:PERSONA] (cf. the fifteenth recital). ( 28 ) By that the defendant means the position of a television broadcaster who feeds his programme direct into a cable network. ( 29 ) See point 4 above. ( 30 ) OJ 1993 L 248, p. 15 . ( 31 ) The defendant contends that, accordingly, instead of the expression ‘retransmission’ in the [OSCURATO:PERSONA] version of the directive the expression ‘réémission’ would have been expected. ( 32 ) [OSCURATO:PERSONA] 1(3) of that directive (op. cit., footnote 30). ( 33 ) The wording of these passages is given above under point 3. ( 34 ) Sec the tenth recital (my emphasis). ( 35 ) OJ 1994 L 1, p. 1 . The text of the agreement is given on p. 3 et seq. ( 36 ) [OSCURATO:PERSONA] X to the agreement (op. cit., footnote 35), p. 417. ( 37 ) [OSCURATO:PERSONA] and English versions of this [OSCURATO:PERSONA], together with a [OSCURATO:PERSONA] translation, arc printed in the Bundesgesetzblatt II 1994, p. 639. ( 38 ) See point 2 above and the judgment in Bond van Adverteerders cited there. ( 39 ) Cf. in this respect my [OSCURATO:PERSONA] in [OSCURATO:PERSONA]222/94. ( 40 ) UNTS Vol. 213, p. 221. ( 41 ) Sec the eighth, ninth and tenth and the twenty-seventh recitals in the preamble to the directive. ( 42 ) Twelfth recital. ( 43 ) Twenty-eighth recital. ( 44 ) See the [OSCURATO:PERSONA]'s assessment in the twelfth recital in the preamble to [OSCURATO:PERSONA] 93/83. ( 45 ) It is interesting that the defendant has also stated that programmes from that broadcaster were nevertheless retransmitted over the network. That may be seen as an indication that the [OSCURATO:PERSONA] system at issue is not as significant as the defendant claims. ( 46 ) See for example the judgment in [OSCURATO:PERSONA]23/93 TV10 [1994] ECR I-4795, at paragraphs 18 and 19 . ( 47 ) Sec for example the judgment in [OSCURATO:PERSONA] 52/79 Debauve [1980] ECR 833, at paragraph 15 . ( 48 ) Sec point 41 above. ( 49 ) Judgment in [OSCURATO:PERSONA] 33/74 [OSCURATO:PERSONA] [1974] ECR 1299,at paragraph 13 . ( 50 ) See footnote 46 (at paragraph 20). ( 51 ) See footnote 50 (at paragraph 21). ( 52 ) See footnote 17 (at paragraph 12). ( 53 ) My emphasis. ( 54 ) See footnote 50 (at paragraph 21). ( 55 ) See above, point 65. ( 56 ) Sec more recently for example the judgment in [OSCURATO:PERSONA]296/92 [OSCURATO:PERSONA] ν Italy [1994] I-1, at paragraph 11. ( 57 ) Judgment in [OSCURATO:PERSONA]105/91 [OSCURATO:PERSONA] ν Greece [1992] ECR I-5871, at paragraph 13 . ( 58 ) Sec footnote 57 (at paragraph 14). ( 59 ) Sec point 20 above. ( 60 ) [OSCURATO:PERSONA] 5(2) of the [OSCURATO:PERSONA] of 4 May 1994. ( 61 ) [OSCURATO:PERSONA] in [OSCURATO:PERSONA]266/94 [OSCURATO:PERSONA] ν Spain [1995] ECR I-1975, at paragraphs 16 and 17 . ( 62 ) [OSCURATO:PERSONA] 89/646/EEC of 15 December 1989 on the coordination of laws, regulations and administrative provisions relating to the taking up and pursuit of the business of credit institutions and amending [OSCURATO:PERSONA] 77/780/EEC ( OJ 1989 L 386, p. 1 ). ( 63 ) Sec above, point 42 et seq. ( 64 ) The provision is in Chapter V, which is entitled ‘Protection of minors’. Nevertheless, it may be assumed that it is a provision applicable to all broadcasts. ( 65 ) The disputes and disagreements discussed in the course of these proceedings concern [OSCURATO:PERSONA] 4 and 5 of the directive which can hardly be classified as belonging to the field of public policy and security or good morals. ( 66 ) See point 55 et seq. above. ( 67 ) Whether there were in fact no provisions at the material time for the [OSCURATO:PERSONA] seems to me to be open to question because the Law of 30 March 1995 states in [OSCURATO:PERSONA] 42 that [OSCURATO:PERSONA] 2 and 3 of the Law of 6 February 1987 on radio and cable television networks and commercial advertising on radio and in television (see also footnote 12 above) are repealed. ( 68 ) Sec above, point 24.