United Pan-Europe Communications Belgium SA and others v. Belgium, Case C-250/06, CJEU (Third Chamber), 13 December 2007

Assessment of compatibility with Community law of national measures imposing must carry obligations on cable network operators in the Brussels-Capital region. Safeguarding pluralism in a bilingual region. 
 

Art. 82 EC
Art. 86 EC
Art. 49 EC

1. Community law requires that preliminary questions arising in a dispute must be placed in relation to the factual circumstances in which they refer. This is of particular relevance in the competition sector. With reference to articles 82 and 86 EC, it is, in fact, necessary to have factual elements such as to be able to deduce the existence of the conditions of a dominant position (or abusive behavior) pursuant to the letter of the law and, in particular, the modus in which the institutions in question assume this dominant position.

2. The art. 49 EC must be interpreted as meaning that it does not preclude the legislation of a Member State which requires cable operators present in the territory of that State to broadcast, by virtue of a so-called 'must carry' obligation, the television programs transmitted by private radio and television broadcasting, when this legislation seeks to safeguard the pluralism of the offer of television programs, and is not disproportionate to this objective.

3. The granting of the 'must carry' status must be based on objective criteria capable of guaranteeing pluralism by allowing, where necessary, through public service obligations, access to national and local information on the territory concerned. Therefore, such a status cannot be granted ipso facto to all television channels broadcast by the same private radio and television broadcasting organization, but must be strictly limited to those whose overall content of the programs is capable of achieving such an objective. Finally, the granting of the status of 'must carry' cannot, either in law or in fact, be subject to a requirement of establishment in the national territory as it would place the organizations present in the territory in a more facilitated position.