Summaries of important judgments
May 2012
C-244/10 and C-245/10 Mesopotamia Broadcast A/S METV and Roj TV A/S, judgment of 22
September 2011
A Member State may prohibit within its territory, for public order reasons, the activities of a
television broadcaster established in another Member State on condition that this does not
prevent the retransmission as such of this broadcaster’s programmes.
The Danish company Mesopotamia Broadcast is the holder of several television licences in Denmark It
operates the television channel Roj TV, which is also a Danish company and which broadcasts
programmes by satellite in Kurdish throughout Europe and the Middle East. It commissions programmes
from a company established in Germany.
In 2008, the German authorities prohibited Mesopotamia Broadcast from carrying out, through the agency
of Roj TV, any activities in Germany on the grounds that the Roj TV programmes conflict with the
principles of ‘international understanding’, as defined by German constitutional law. According to these
authorities, the Roj TV programmes promoted the PKK, which is recognised as a terrorist organisation,
and incited violence, including in Germany.
The two Danish companies brought action before the German courts to have this prohibition set aside,
submitting that only the Danish authorities were competent to control their activities. They relied on the
provisions of Article 2 of the ‘Television without Frontiers’ Directive (Directive 89/552/EEC, as amended by
Directive 97/36/EC, since replaced by Directive 2010/13/EU concerning audiovisual media services),
pursuant to which each Member State ensures that television broadcasters under its jurisdiction comply
with the rules applicable to broadcasts intended for the public in that Member State. These rules include
the prohibition of containing any incitement to hatred on grounds of race, sex, religion or nationality
(Article 22a of the Directive) which, according to the complainants, would cover the concept of
‘international understanding’.
Following reference by the German Federal Administrative Court, the Court of Justice rules that the
Directive is in fact applicable, since the behaviour referred to by the concept of international
understanding is covered by the concept of incitement to hatred which, in the absence of a precise
definition, should be interpreted by considering its usual meaning in everyday language, the context in
which it occurs and the purposes of the Directive. It is therefore a matter of forestalling any ideology
which fails to respect human values, in particular initiatives which attempt to justify violence by terrorist
acts against a particular group of persons. The desire to stir up violent confrontations between persons of
Turkish and Kurdish origin in Turkey and to exacerbate the tensions between Turks and Kurds in Germany
enters within this definition.
The Court then confirms its case-law according to which the fields coordinated by the Directive are
coordinated only in so far as television broadcasting is concerned as such. Moreover, the Directive does
not completely harmonise the rules relating to the areas to which it applies, but lays down minimum rules
http://ec.europa.eu/dgs/legal_service/arrets/index_en.htm
for broadcasts which emanate from the Union and which are intended to be received within it. The Court
stresses in particular the non-exhaustive character of the Directive with regard to areas relating to public
order, public morality or public security. In this context, whereas it is solely for the Member State from
which broadcasts emanate to ensure that these broadcasts comply with the Directive, the receiving
Member State is free to apply to the activities carried out by broadcasters within its territory generally
applicable rules concerning those fields, in so far as those rules do not hinder retransmission as such
within their territory of the television broadcasts in question and do not introduce prior control of them.
The Court had already ruled along these lines with regard to national rules with the general aim of
consumer protection (C-34/95 to C-36/95 De Agostini and TV-Shop).
In the present case, although the German authorities are not therefore competent to monitor compliance
with the provisions of the Directive by the programmes of Roj TV and cannot restrict retransmission within
their territory, they were free to prohibit the activities of Mesopotamia Broadcasts and Roj TV as
associations. This refers in particular to the production of broadcasts and the organisation of events
consisting in screening Roj TV’s broadcasts in a public place and the sympathy actions taking place in
Germany. Such measures do not, in principle, constitute an obstacle to retransmission as such. The Court
nevertheless leaves it to the referring court to determine the actual effects which follow from the
prohibition at issue in this respect.