Case C-298/17 France Télévisions. Request for a preliminary ruling. Conseil d'État (Frankrijk)
Copyright. The applicant asks the referring court for the annulment of a decision of 27/05/2015 by the FRA Broadcasting Service (CSA, defendant) by which the applicant has been instructed to allow the company Playmédia (co-defender) to carry services produced by the applicant on its website 'playtv.fr'. The applicant claims an abuse of power the and unlawfulness of the decision because the duty to carry programmes would supersede their right of ownership, which is a possible justification ground to deviate from the freedom of communication. CSA has improperly explained the scope of article 31 of Directive 2002/22. Playmédia invokes their obligation to make content available even though their website does not meet the Directive's criteria.
Considering the complexity of the case the referring court considers it necessary to refer the following questions to the CJEU:
1. Must an undertaking that offers live streaming of television programmes online be regarded, on the basis of that fact alone, as an undertaking providing an electronic communications network used for the distribution of radio or television broadcasts to the public within the meaning of Article 31(1) of Directive 2002/22/EC 1 of 7 March 2002?
2. If the answer to the first question is in the negative, can a Member State, without infringing the Directive or other provisions of EU law, impose an obligation for the distribution of radio and television services on both undertakings providing electronic communications networks and on undertakings which, without providing such networks, offer live streaming of television programmes online?
3. If the answer to the second question is in the affirmative, it is open to the Member States not to make the ‘must carry’ obligation, on the part of service distributors not providing electronic communications networks, subject to all the conditions laid down in Article 31(1) of Directive 2002/22/EC of 7 March 2002, even though the fulfilment of those conditions is required on the part of network operators under the Directive?
4. Can a Member State imposing a ‘must carry’ obligation for the transmission of certain radio or television services on certain networks impose, without infringing the directive, an acceptance requirement for the distribution of those services on those networks, including distribution online, where the service in question already distributes its own programmes online?
5. With regard to distribution online, must the condition requiring a significant number of end-users of networks subject to the ‘must carry’ obligation to use them as their principal means of receiving radio and television broadcasts, set out in Article 31(1) of Directive 2002/22 EC, be assessed in relation to all users viewing television programmes streamed live online, or only in relation to users of the site subject to the ‘must carry’ obligation?