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C 174/2 EN Official Journal of the European Communities 19.6.


Would the answer be different if, before the product was States concerning the pursuit of television broadcasting
reimported into the Community, the purchaser in the non- activities, (1) and under Article 59 of the Treaty;
member country sold it to an undertaking with which he
was personally and commercially connected, which is also — by failing to adopt within the prescribed period the
established in that non-member country? laws, regulations and administrative provisions needed
to comply in full with Article 22 of Direc-
tive 89/522/EEC,
— by providing that rules different from those applicable
to the broadcasting of services intended for the public
in France are to apply to satellite broadcasting of
Reference for a preliminary ruling from the Sozialgericht audiovisual communication services in foreign
(Social Court), Münster, by order of that court of 12 March languages, and
1999 in the case of Carl Borawitz v Landesversicherungs-
anstalt Westfalen, joined party: Federal Republic of Germ- — by not adopting measures to ensure that television
any services using a frequency not managed by the Conseil
Supérieur de l’Audiovisuel comply with the law appli-
(Case C-124/99) cable to the broadcasting of services intended for the
public in France,
(1999/C 174/03)
the French Republic has failed to fulfil its obligations under
Reference has been made to the Court of Justice of the Directive 89/522/EEC, in particular Articles 2(1), 22 and
European Communities by an order of the Sozialgericht (Social 25 thereof;
Court), Tenth Chamber, Münster, of 12 March 1999, which 2. Order the French Republic to pay the costs.
was received at the Court Registry on 14 April 1999, for a
preliminary ruling in the case of Carl Borawitz v Landesversich-
erungsanstalt Westfalen, joined party: Federal Republic of Pleas in law and main arguments
Germany, on the following question:
The Commission makes five charges against the French rules.
Is Paragraph 118(2a) of the Sixth Book of the Sozialgesetzbuch The first two concern France as a receiving country and the
(Code of Social Law, ‘SGB VI’) incompatible with European last three as a country of establishment.
Community law, in particular the principle of equal treatment,
in so far as the limitation on pension back payments is greater First, Law 86-1067 of 30 September 1986 on freedom of
when payment is made abroad? communication introduces, for retransmission of television
broadcasts on French territory, an obligation to conclude an
agreement with the Conseil Supérieur de l’Audiovisuel.

The application of such a system of prior authorisation for

television broadcasting services falling within the jurisdiction
Action brought on 20 April 1999 by the Commission of of another Member State is incompatible with Article 59 of
the European Communities against the French Republic the EC Treaty or with Article 2(2) of the abovementioned
directive to the extent to which that agreement relates to
(Case C-140/99) matters coordinated by the directive.

(1999/C 174/04) Second, it is apparent form Article 4 of Decree 92-882 of

1 September 1992, which was adopted for the implementation
An action against the French Republic was brought before the of certain provisions of the abovementioned law, that the
Court of Justice of the European Communities on 20 April latter have been made applicable to services broadcast from
1999 by the Commission of the European Communities, France and, for their distribution by cable, to the services
represented by Karen Banks, of its Legal Service, acting as which have established their broadcasting activities outside
Agent, with an address for service in Luxembourg at the office France for the sole purpose of avoiding the rules which would
of Carlos Gómez de la Cruz, Wagner Centre, Kirchberg. otherwise apply to them.

The Commission of the European Communities claims that The criterion chosen as the basis for French jurisdiction,
the Court should: namely ‘services broadcast’, is not precise enough; only a
criterion based on the establishment of the service in question
1. Declare that, may, according to the case-law, be used. Moreover, that
provision also leads to the result that a service may not be
— by keeping in force a system of prior authorisation for established outside France, thereby limiting the freedom to
the retransmission on French territory of television provide services.
broadcasts from other Member States, whereby an
agreement must be concluded with the Conseil Supérie- Third, the French legislation only incompletely transposes
ur de l’Audiovisuel, and Article 22 of the directive concerning measures to be taken for
the protection of minors. First, the measures put into effect by
— by keeping force Article 4 of Decree 91-882,
the French legislation do not cover television broadcasting
the French Republic has failed to fulfil its obligations under services falling within French jurisdiction but not using any
Article 2(2) of Council Directive 89/552/EEC of 3 October French network (terrestrial, cable or satellite). Second, the
1989 on the coordination of certain provisions laid down measures do not have sufficient binding force, since they
by law, regulation or administrative action in Member merely impose penalties.