Brussels, 24 October 2012
Digital Agenda: Commission asks Court of Justice to fine Belgium over non-transparent "must-carry" TV and radio rules
The European Commission is asking the European Court of Justice (ECJ) to impose a fine on Belgium because it has not correctly implemented EU telecom rules when awarding "must-carry" status to broadcast content, even after the Court's judgement of March 2011. "Must-carry" rules require cable companies or telecom operators to carry specified radio and TV broadcast channels and services where a significant number of consumers use them as their principal means to receive radio or TV broadcasts. The Commission is suggesting a lump sum calculated on the basis of €5397/day for the period between the first and eventual second Court ruling and a daily penalty payment of €31 251.20 for each day after the second Court ruling until Belgium complies with the judgment.
Under EU law, and in particular the Universal Service Directive, when a Member State decides to impose "must carry" obligations on network providers such as cable operators to transmit specific television or radio channels, the rules must be clearly defined, proportionate and transparent. In December 2007, the ECJ gave a preliminary ruling on the "must-carry" rules of the bilingual Brussels-Capital region, stating that the procedure for granting must-carry status to broadcasters must be transparent, meaning it should be based on objective non-discriminatory criteria known in advance (see C/250/06 , UPC Belgium and others).
In November 2008, Belgium received a first warning from the Commission as it had no transparent procedure for designating "must-carry" channels. This made it difficult for broadcasters and network operators to know their rights and obligations.
In October 2009 the Commission decided to refer Belgium to the ECJ (IP/09/1491). In its judgment of 3 March 2011, the Court ruled that Belgian "must-carry" rules in the Brussels Region were incompatible with EU law. Today's decision to refer Belgium back to the Court, with a view to imposing financial penalties, follows a final warning from the Commission in September 2011.
The Universal Service Directive is part of the EU's telecoms rules and requires Member States to ensure a minimum level of availability and affordability of basic services, and guarantees a set of basic rights for the benefit of consumers. Under this Directive, EU countries may set reasonable "must-carry" rules for public policy reasons which must be clearly defined (for example media pluralism) if the transmission networks concerned are the principal source of radio or TV broadcasts for a significant number of customers. Such "must-carry" obligations must be proportionate and transparent.
Overview of telecoms infringement proceedings
On the October infringement package decisions, see MEMO/12/794
For more information on EU infringement procedures, see MEMO/12/12