Thursday, October 04, 2007

Cases to watch out for at the ECJ

contentandcarrier have produced a list of interesting European Court of Justice cases in the area of communications and media law or generally falling under the EU framework on electronic communications networks.

The Europa website also has a guide to these cases up to 2003 and is due to publish an updated guide in the none too distant future.

Daithi particularly likes one related to the Italian broadcasting landscape, Case C-380/05.

"Reference has been made to the Court of Justice of the European Communities by order of the Consiglio di Stato of 19 April 2005, received at the Court Registry on 18 October 2005, for a preliminary ruling in the proceedings between Centro Europa 7 Srl and Ministero delle Comunicazioni (Ministry of Communications) e Autorità per le Garanzie nelle Comunicazioni, (Authority for Security of Communications) Direzione Generale Autorizzazioni e Concessioni Ministero delle Comunicazioni (Directorate General for Authorisations and Concessions in the Ministry for Communications) on the following questions:

Does Article 10 of the ECHR, as referred to in Article 6 of the Treaty on European Union, guarantee pluralism in the broadcasting sector, thus requiring the Member States to secure pluralism and competition in the sector based on an antitrust system which, in relation to technological development, secures network access and multiplicity of operators and renders duopolistic market behaviours unlawful...

Under Community rules (primary and secondary legislation) on workable competition in the broadcasting sector, ought the national legislature to have avoided extending the old transitory analogue system on the advent of the terrestrial digital system (and the attendant generalised transition to digital)? Only if analogue broadcasting is ended and replaced by the switch to digital will it be possible to reallocate frequencies freed for various uses. If terrestrial digital is merely operated alongside analogue, there will be an attendant accentuating of the scarcity of available frequencies owing to the existence of analogue and digital transmission in parallel (simulcast).

Lastly, is the pluralism of sources of information and of competition in the broadcasting sector, which is guaranteed by European law, secured by national rules, such as law no 112/2004 providing for a new limit of 20 percent of resources linked to a new very wide criterion (the ICS - integrated communications system - Article 2(g) and Article 15 of law no 112/2004). This criterion also brings in activities which do not affect media pluralism, whereas under antitrust law the 'relevant market' is constructed normally by differentiating the markets in the broadcasting sector by drawing a distinction between pay/TV and non-pay TV operating via the airwaves (reference is made inter alia to the Commission cases COMP/JV. 37-BSKYB/Kirch Pay TV Regulation (EEC) No 4064/89 Merger Procedure 21/03/2000 and COMP/M.2876-Newscorp-TELEPIU Regulation (EEC) No 4064/89 Merger Procedure 2/04/2003."

Worth reading in full if you're a legal geek or an insomniac, though definitely not for the fainthearted. You have to hand it to the lawyers who dig through these regulations. I never realised there were quite so many grounds on which to challenge the allocation of the digital spectrum in relation to broadcasting and that's just in Italy. Although it is a real pity in many ways that this stuff has to be sorted out through the courts, just think of the number of jumping off points for challengers to the broadcast status quo in every member state. Whether that is a good thing or not I leave the reader to decide.

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