59 / 406
GAZETTE
MARCH 1985
of goods. However, such a monopoly would contravene
that principle if it discriminated in favour of national
materials, national products, or, within the Community,
favoured particular trade channels or particular
commercial operators in relation to others. The Court
ruled that an undertaking which has a monopoly and to
which a Member State grants exclusive rights within the
meaning of Article 90 is not, as such, incompatible with
Article 86 of the treaty (abuse of dominant position by
undertaking).
Mr. Advocate-General Reischl in his Opinion in
Sacchi
noted that the transmission of television
programmes could not be left only to private interests. He
noted that the transmission of television programmes was
a "public task" — and, in the context of television being a
most effective means of mass-communication, the
exclusion of private groups even in the context of
commercial television could be justified
26
. That view may
not be held to-day, a decade after the
Sacchi
judgment.
However, on the basis of the
Sacchi
judgment and the case
law of the Court of Justice to date, it could be argued that
notwithstanding Article 52 of the Treaty (freedom of
establishment) no one can claim the absolute right to
engage in private radio and television broadcasting where
such right is withheld by Member States from their own
nationals
27
. The fundamental changes which the new
technologies will bring may force a reappraisal of
previous case law and assumptions based on such case
law.
Perhaps the fundamental question concerning broad-
casting to-day is the question of who has the right to
broadcast what material to whom. This is a question of
major importance because of the often contradictory
broadcasting laws of each Member State of the
Community. This is particularly so in the context of
national rules regulating advertising. These rules
constitute a serious obstacle to cross-frontier
broadcasting between Member States. Broadcasting
organisations would find it impossible at the present time
to produce programmes containing advertising for
simultaneous transmission in different Member States.
This is so because of the often contradictory requirements
of all the Member States. However, some general
principles may be stated here. If a Member State subjects
broadcasts from a different Member State — including
broadcasts by satellite — to more onerous conditions
than those applicable to national broadcasts or cable
transmissions or if a Member State curtails or hinders
such foreign broadcasts, it is submitted that under
Articles 59 and 62 of the Treaty, this would constitute a
discriminatory restriction.
However, there are exceptional cases when discrimina-
tion against foreign broadcasts is permitted. The
reservations relate to "public policy, public security and
public health" (Articles 56(i), 66 and chapters on the right
of establishment and services). There are the restrictions
specified in Article 10(2) of the European Convention on
Human Rights. There is also the question of the status of
the European Convention on Human Rights in
Community Law. Article 10(2) of the Convention
provides,
inter alia,
for restrictions on the right to receive
and impart information which are prescribed by law and
are necessary in a democratic society. These restrictions
may be in the interests o f " . . . national security, territorial
integrity or public safety, for the prevention of disorder or
crime, for the protection of health or morals, for the
protection of the reputation or rights of others, for
preventing the disclosure of information received in
confidence, or for maintaining the authority and
impartiality of the judiciary". These restrictions are all
qualified by the words "necessary in a democratic
society". By virtue of the decision of Court of Justice of
the European Communities in
Rutili
2
\ it is submitted that
restrictions on cross-frontier broadcasting under the
headings of public policy, public security and public
health are subject to the qualification that the
reservations are "necessary in a democratic society". The
writers take the view that the expression "in a democratic
society" is not a reference to a specific democratic state
but to a free society in general.
The internationalisation of broadcasting creates the
need for hármonisation of national laws. The European
Commission in its recent Green Paper "Television
without Frontiers"
29
proposes that all discriminatory and
other restrictions on broadcasts from other Member
States which are not in accordance with the directly
applicable rules of the Treaty (Articles 59 and 62 in
particular) should be suppressed. The Commission
suggested that certain aspects of national laws on radio
and television advertising be coordinated. Harmonisation
of laws on the protection of the young, right of reply and
copyright were also suggested by the Commission. The
Commission's Green Paper was intended as a basis for a
debate with interested groups before legislative proposals
were put to the Council.
Article 10 of the European Convention on Human
Rights may also provide a basis for solving legal problems
associated with cross frontier broadcasting in Member
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