Key facts of the case:
Reference for a preliminary ruling – Electronic communications – Article 11(2) of the Charter of Fundamental Rights of the European Union – Freedom and pluralism of the media – Freedom of establishment – Article 49 TFEU – Directive 2002/21/EC – Articles 15 and 16 – National legislation prohibiting an undertaking which has significant market power in a sector from establishing a ‘significant economic dimension’ in another sector – Calculation of revenues received in the electronic communications sector and the media sector – Definition of the electronic communications sector – Restriction to markets which have been subject to ex ante regulation – Account taken of the income of affiliated companies – Fixing of different income thresholds for undertakings active in the electronic communications sector.
Outcome of the case:
On those grounds, the Court (Fifth Chamber) hereby rules:
Article 49 TFEU must be interpreted as precluding legislation of a Member State which has the effect of preventing a company registered in another Member State, the revenue of which in the electronic communications sector, as defined for the purposes of that legislation, is in excess of 40% of the total revenues generated in that sector, from earning, within the integrated communications system, revenue which exceeds 10% of the total revenues generated in that system.
27) AGCOM submits that the legal basis of the prohibition of establishing a ‘significant economic dimension’ in the SIC, laid down by the provision at issue in the main proceedings, is the principle of media pluralism, enshrined in particular in Article 11 of the Charter of Fundamental Rights of the European Union, and in recital 8 of the Audiovisual Media Services Directive. AGCOM also notes that, according to the Court’s case-law, the fundamental freedoms may be restricted in order to ensure media pluralism in the Member States.
57) The Court has held that the safeguarding of the freedoms protected under Article 11 of the Charter of Fundamental Rights, which in paragraph 2 thereof refers to the freedom and pluralism of the media, unquestionably constitutes a legitimate aim in the general interest, the importance of which in a democratic and pluralistic society must be stressed in particular, capable of justifying a restriction on freedom of establishment (see, to that effect, judgment of 22 January 2013, Sky Österreich, C‑283/11, EU:C:2013:28, paragraph 52 and the case-law cited).