Abstract
The question addressed is whether the EC has competence under Article 95 EC Treaty1 (EC) on the approximation of laws to allocate the frequencies to be released by the switchover from analogue to digital at the European level, or if the exercise of this legislative power is reserved to the Member States in an exclusive competence on the financing of public broadcasting. Due to the length and scope of this paper, the topic will be treated with a specific focus on the European telecommunications market.
Methodologically, the EC competence in question will be studied under the criteria developed by the European Court of Justice (EC]) case law through case Germany v European Parliament and Council (Case 376/98) [2002], hereafter the “Tobacco Advertising Case”. This choice is based on two different sets of reasons: On the one hand, this ruling clarifies the scope of a domaine réservé of Member States under EC Law through the example of health policy and balances it with the requirements of the internal market, and on the other hand, it sets the strictest prerequisites for an EC harmonization competence to be exercised within the aforesaid scope. Therefore, if said conditions are met, there can be no doubt that Article 95 EC is applicable to the case at hand. Within this context, we shall argue that the EC has competence under Article 95 EC to allocate the frequencies to be released, since: First, there is a future likely disparity in national laws.
Second, such disparity will create obstacles to the exercise of the free movement of services and goods, as well as of the freedom of establishment. Moreover, it will result in appreciable distortions of competition.
Third, a harmonization measure will actually contribute to improve the functioning of the internal market and it would not interfere with the guarantee of existence and development of public broadcasting nor with the subsidiarity principle, provided that they applied.