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Brussels, 24th July 2003

Broadcasting services: Commission refers Germany to Court over allocation of radio spectrum

The European Commission has decided to refer Germany to the Court of Justice over media law in the "Land" (region) of Rheinland-Pfalz, which in the Commission's view is discriminatory and infringes the principle of freedom of establishment. The Commission believes that some provisions of this law and the way the authorities apply them give preference to local terrestrial radio broadcasters in the granting of licences and thus discriminate against broadcasters from other EU countries.

So far, only three licences have been granted in Rheinland-Pfalz for terrestrial radio-broadcasting, a fact which itself considerably limits the possibility of exercising this activity. The Commission contests certain provisions of the media law in force in this Land, which it believes have a discriminatory effect and result in closing or considerably restricting the local market. The legislation, which was amended in 1996, has doubled the length of validity of licences already granted, requires for the granting of second and third licences that the applicant propose different programmes from those of the operator which received the first licence, and introduces a general preference for applicants operating from studios located in the Land.

Furthermore, the relevant authorities have applied other provisions in a discriminatory manner, deliberately favouring operators which belong to groups representing and linked to the local community, have a particular involvement in the activities of the Land and contribute towards strengthening the regional economy. In contrast, the authorities have stated that less consideration is given to applicants with no links with the Land.

The German authorities claim that these measures are necessary to protect media pluralism, but the Commission considers that the measures do not respect the principles of non-discrimination, necessity and proportionality required by the established case law of the Court of Justice for exceptions to the freedom of establishment, which is a fundamental principle of the Internal Market provided for in the EC Treaty (Article 43).

The Commission is aware of the fact that the German authorities are now considering to repeal at least part of the incriminated provisions. However, no precise timetable for the necessary legislative amendments has been yet provided.

Therefore, since all the other arguments put forward by the German authorities in the course of the proceedings are not sufficient to persuade the Commission to change its analysis, the Commission has decided to refer the matter to the European Court of Justice.

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