Article 11 - Freedom of expression and information
Key facts of the case:
Reference for a preliminary ruling — State aid — Article 107(1) TFEU — Article 108(3) TFEU — Public broadcasting institutions — Financing — Legislation of a Member State under which all adults possessing a dwelling within the country are required to pay a contribution to public broadcasters.
Outcome of the case:
On those grounds, the Court (Fourth Chamber) hereby rules:
1) This request for a preliminary ruling concerns the interpretation of Articles 49, 107 and 108 TFEU, Article 11 of the Charter of Fundamental Rights of the European Union (‘the Charter’) and Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950 (‘the ECHR’), and of the principles of equal treatment and non-discrimination.
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26) Fourth, the Law on the broadcasting contribution, in particular Paragraphs 2 and 3, infringes the freedom of information mentioned in Article 11 of the Charter and Article 10 of the ECHR. The broadcasting contribution is deliberately structured as an obstacle to access to all kinds of information transmitted by satellite, cable or mobile telephone network. The broadcasting contribution is payable by an individual regardless of whether he actually makes use of the public broadcasters’ programmes.
28) In those circumstances, the Landgericht Tübingen (Regional Court, Tübingen, Germany) decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:
‘(1) Is the [Law on the broadcasting contribution] … incompatible with EU law because the contribution unconditionally levied since 1 January 2013 in principle from every adult living in the German Land of Baden-Württemberg to finance the public service broadcasters SWR and ZDF constitutes preferential aid that infringes EU law for the exclusive benefit of those public service broadcasting bodies compared to private broadcasting organisations? Are Articles 107 and 108 TFEU to be interpreted as meaning that the Law on the broadcasting contribution should have been approved by the Commission and is invalid without that approval?
(2) Are Articles 107 and 108 TFEU to be interpreted as encompassing the provision laid down in the [Law on the broadcasting contribution] under which a contribution for the exclusive benefit of official/public-law service broadcasters is unconditionally levied in principle from every adult living in Baden-Württemberg, because that contribution contains preferential aid that infringes EU law with the effect that broadcasters from EU States are excluded for technical reasons, as the contributions are used to set up a competing transmission method (DVB-T2 monopoly) whose use by foreign broadcasters is not provided for? Are Articles 107 and 108 TFEU to be interpreted as encompassing not only direct financial aid but also other privileges with economic relevance (right to issue enforcement instruments, authority to act both as an economic undertaking and also as an official body, better position in the calculation of debts)?
(3) Is it compatible with the principle of equal treatment and the prohibition of preferential aid if, under a national Baden-Württemberg law, a German television broadcaster which is organised under public law and takes the form of a public body but which at the same time competes with private broadcasters in the advertising market is put in a privileged position compared to them, in that, unlike its private competitors, it does not have to go through the ordinary courts to obtain an enforcement instrument for its claims against viewers before being able to enforce these claims, but is entitled itself to create an instrument equally entitling it to enforcement without the need for a court?
(4) Is it compatible with Article 10 of the ECHR/Article 11 of the Charter … that a Member State provides in a national Baden-Württemberg law that a television broadcaster which takes the form of a public body is entitled to demand a contribution, on pain of an administrative fine, to finance precisely that broadcaster from every adult living within the broadcasting territory, regardless of whether he even possesses a receiving device or uses only other broadcasters, namely foreign or private ones?
(5) Is the [Law on the broadcasting contribution], in particular Paragraphs 2 and 3, compatible with the principle of equal treatment and the prohibition of discrimination in EU law if the contribution payable unconditionally by every resident for the purpose of financing a public-law television broadcaster burdens a single parent much more per head than a member of a shared household? Is [Council Directive 2004/113/EC of 13 December 2004 implementing the principle of equal treatment between men and women in the access to and supply of goods and services (OJ 2004 L 373, p. 37)] to be interpreted as also encompassing the contribution at issue and as meaning that an indirect disadvantage is sufficient when it is 90% women who are more heavily burdened in the actual circumstances?
(6) Is the [Law on the broadcasting contribution], in particular Paragraphs 2 and 3, compatible with the principle of equal treatment and the prohibition of discrimination in EU law if the contribution payable unconditionally by every resident for the purpose of financing a public-law television broadcaster is twice as high for persons who need a second home for work reasons than for other workers?
(7) Is the [Law on the broadcasting contribution], in particular Paragraphs 2 and 3, compatible with the principle of equal treatment in EU law, the prohibition of discrimination in EU law and the freedom of establishment in EU law if the contribution payable unconditionally by every resident for the purpose of financing a public service television broadcaster is organised as regards persons in such a way that, where the reception is the same, a German living immediately before the border with a neighbouring EU State owes the contribution solely because of the location of his place of residence, but a German living immediately beyond the border does not owe the contribution, and similarly a foreign EU citizen who for work reasons has to settle immediately beyond an internal EU border is charged the contribution while an EU citizen immediately before the border is not, even if neither is interested in receiving the German broadcaster?’
48) Second, by Questions 4 to 7 the referring court questions the Court on the interpretation of the right of freedom of expression and information laid down in Article 11 of the Charter and Article 10 of the ECHR, the provisions of Directive 2004/113, the principles of equal treatment and non-discrimination, and freedom of establishment.
