Since several years the two applicants (the latter owned by the former) broadcast TV programmes from Danmark “Throughout Europe and to the middle East, in particular to Turkey” (cit Judgment,para 21). Whereas the Danish authorities didn’t consider these activities to infringe Article 22a of Directive 89/552/EEC (as amended by  Directive 97/36/EC), the German authorities took a different view and prohibited broadcasting on German territory, based on the horizontally applicable Statute on Associations (Vereinsgesetz). The administrative court seized by the applicants decided to refer to ECJ.

 

 

Article 22a of Council Directive 89/552/EEC of 3 October 1989 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities, as amended by Directive 97/36/EC of the European Parliament and of the Council of 30 June 1997, must be interpreted as meaning that facts such as those at issue in the disputes in the main proceedings, covered by a rule of national law prohibiting infringement of the principles of international understanding, must be regarded as being included in the concept of ‘incitement to hatred on grounds of race, sex, religion or nationality’. That article does not preclude a Member State from adopting measures against a broadcaster established in another Member State, pursuant to a general law such as the Law governing the public law of associations (Gesetz zur Regelung des öffentlichen Vereinsrechts), of 5 August 1964, as amended by Paragraph 6 of the Law of 21 December 2007, on the ground that the activities and objectives of that broadcaster run counter to the prohibition of the infringement of the principles of international understanding, provided that those measures do not prevent retransmission per se on the territory of the receiving Member State of television broadcasts made by that broadcaster from another Member State, this being a matter to be determined by the national court.