Request for a preliminary ruling from the Symvoulio tis Epikrateias (Greece) lodged on 4 September 2023 – Makeleio EPE v Ethniko Symvoulio Radioteliorasis (ESR)
(Case C-555/23, Makeleio)
Language of the case: Greek
Referring court
Symvoulio tis Epikrateias
Parties to the main proceedings
Applicant: Makeleio EPE
Defendant: Ethniko Symvoulio Radioteliorasis (ESR)
Questions referred
Do the objectives of Directive (EU) 2010/13, 1 as amended by Directive (EU) 2018/1808, 2 and therefore its regulatory scope, include (a) ensuring respect for and protection of human value and dignity and (b) preventing the broadcasting of inappropriate content by television service providers and, in particular, content with the characteristics of the content broadcast in the present case by the applicant company?
If (a) the obligation to respect and protect human value and dignity and/or (b) the prohibition on broadcasting inappropriate content and, in particular, content with the characteristics of the broadcast in question, come within the regulatory scope of the directive, does national legislation under which those obligations are imposed on all television service providers other than those broadcasting television content solely via the internet run counter to Article 4(1) of the directive in conjunction with the principle of equal treatment enshrined in Articles 20 and 21 of the Charter of Fundamental Rights of the European Union?
If the answer to the first two questions is in the affirmative, must the national regulatory authority, in order to ensure the practical effectiveness of the directive, apply the rules of national law imposing without distinction the obligations at issue to all television service providers, even though national law imposes the obligations and associated penalties on all other television service providers, but not on those who broadcast their content exclusively via the internet? Or is the imposition of administrative penalties for breach of those obligations by an internet television broadcast, by way of a broad interpretation or by applying the provisions of national law accordingly, incompatible with the principle nullum crimen, nulla poena sine lege certa, enshrined in the first sentence of Article 49(1) of the Charter of Fundamental Rights of the European Union, in conjunction with the principle of legal certainty?
If the first question referred for a preliminary ruling is answered in the negative and it is held that (a) the obligation to respect and protect human value and dignity and/or (b) the prohibition on broadcasting inappropriate content (and in particular content such as that of the broadcast in question) do not come within the regulatory scope of the directive within the meaning of Article 4(1), where the law of a Member State imposes those obligations on television service providers via terrestrial broadcast, satellite or broadband networks, with the threat of administrative penalties, but does not include corresponding rules regarding providers of television services via the internet, must Article 2(1) of Directive 2010/13, as currently in force, be understood as meaning that the competent national authority is required to consider imposing administrative penalties for breach of the above rules also in relation to the transmission of internet television broadcasts, on the basis of the principle of equal treatment?
If the answer to the fourth question is in the affirmative, does the obligation of the national regulatory authority, based on an interpretation of national law as set out above and consistent with EU law and, in particular, with the provisions of the directive referred to above, to apply to all television services without distinction, irrespective of their medium of transmission, the rules of national law imposing the obligations in question, comply with the principle nullum crimen, nulla poena sine lege certa and the principle of legal certainty, given that those obligations, which are laid down by national law for all other television service providers, do not apply to internet television?
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1 Directive 2010/13/EU of the European Parliament and of the Council of 10 March 2010 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services (Audiovisual Media Services Directive) (OJ 2010 L 95, p. 1).
1 Directive (EU) 2018/1808 of the European Parliament and of the Council of 14 November 2018 amending Directive 2010/13/EU on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services (Audiovisual Media Services Directive) in view of changing market realities (OJ 2018 L 303, p. 69).