27.11.2017

Official Journal of the European Union

C 402/8

(Case C-492/17)

(2017/C 402/10)

Language of the case: German

Referring court

Parties to the main proceedings

Creditor and appellant/respondent: Südwestrundfunk

Debtors and respondents/appellants: Tilo Rittinger, Patric Wolter, Harald Zastera, Dagmar Fahner, Layla Sofan, Marc Schulte

Questions referred

1.Is the national Baden-Württembergisches Gesetz vom 18.10.2011 zur Geltung des Rundfunkbeitragsstaatsvertrags (Baden-Württemberg law of 18 October 2011 on the application of the interstate treaty on the broadcasting contribution fee, ‘RdFunkBeitrStVtrBW’) of 17 December 2010, last amended by Article 4 of the Neunzehnter Rundfunkänderungsstaatsvertrag vom 3. Dezember 2015 (nineteenth treaty amending the interstate broadcasting treaty of 3 December 2015) (Law of 23 February 2016 — GBl. pp. 126, 129) incompatible with EU law because the contribution fee unconditionally levied since 1 January 2013 in principle from every adult living in the German Land of Baden-Württemberg to finance the public service broadcasters SWR (Südwestrundfunk) and ZDF (Zweites Deutsches Fernsehen) represents preferential aid that infringes EU law for the exclusive benefit of these public service broadcasting bodies compared to private broadcasting organisations? Are Articles 107 and 108 TFEU to be interpreted as meaning that the law on the broadcasting contribution fee should have been approved by the Commission and is invalid without that approval?

2.Are Articles 107 and 108 TFEU to be interpreted as encompassing the provision laid down in the national RdFunkBeitrStVtrBW law under which a contribution fee for the exclusive benefit of official/public service broadcasters is unconditionally levied in principle from every adult living in Baden-Württemberg, because this contribution fee contains preferential aid that infringes EU law with the effect that broadcasters from other EU countries are excluded from certain technology, as the contribution fees are used to set up a competing transmission method (DVB-T2 monopoly) whose use by foreign broadcasters is not provided for? Are Articles 107 and 108 TFEU to be interpreted as encompassing not only direct financial aid but also other privileges with economic relevance (right to issue enforcement instruments, authority to act both as an economic undertaking and also as an official body, better position in the calculation of debts)?

3.Is it compatible with the principle of equal treatment and the prohibition of preferential aid if, under a national Baden-Württemberg law, a German television broadcaster which is organised under public law and takes the form of a public body but which at the same time also competes with private broadcasters for advertising is put in a privileged position compared to them, in that, unlike its private competitors, it does not have to go through the ordinary courts to obtain an enforcement instrument for its claims against viewers before being able to enforce these claims, but is itself permitted to create such an instrument equally entitling it to enforcement without the need for a court?

4.Is it compatible with Article 10 of the European Convention on Human Rights/Article 4 of the Charter of Fundamental Rights (freedom of information) that a Member State provides in a national Baden-Württemberg law that a television broadcaster that takes the form of a public body is entitled to demand a contribution fee, on pain of an administrative fine, to finance none other than that broadcaster from every adult living within the broadcasting territory, irrespective of whether an individual even possesses a reception device or uses only other broadcasters, namely foreign and private ones?

5.Is the national RdFunkBeitrStVtrBW law, particularly Paragraphs 2 and 3, compatible with the principle of equal treatment and the prohibition of discrimination in EU law if the contribution fee payable unconditionally by every resident for the purpose of financing a public service television broadcaster burdens a single parent much more per head than a member of a shared household? Is Directive 2004/113/EC to be interpreted as also encompassing the contribution fee at issue and as meaning that an indirect disadvantage is sufficient when it is 90 % women who are more heavily burdened in the actual circumstances?

6.Is the national RdFunkBeitrStVtrBW law, particularly Paragraphs 2 and 3, compatible with the principle of equal treatment and the prohibition of discrimination in EU law if the contribution fee payable unconditionally by every resident for the purpose of financing a public service television broadcaster is twice as high for persons who need a second home for work reasons than for other workers?

7.Is the national RdFunkBeitrStVtrBW law, particularly Paragraphs 2 and 3, compatible with the principle of equal treatment in EU law, the prohibition of discrimination in EU law and the freedom of establishment in EU law if the contribution fee payable unconditionally by every resident for the purpose of financing a public service television broadcaster is organised as regards persons in such a way that, where the reception is the same, a German living immediately before the border with a neighbouring EU State owes the contribution fee solely depending on the location of his place of residence, but a German living immediately beyond the border does not owe the contribution fee, just as a foreign EU citizen who for work reasons has to settle immediately beyond an internal EU border is charged the contribution fee while an EU citizen immediately before the border is not, even if neither is interested in receiving the German broadcaster?

Council Directive 2004/113/EC of 13 December 2004 implementing the principle of equal treatment between men and women in the access to and supply of goods and services, OJ 2004 L 373, p. 37.