The Gazette 1985

GAZETTE

MARCH 1985

of goods. However, such a monopoly would contravene that principle if it discriminated in favour of national materials, national products, or, within the Community, favoured particular trade channels or particular commercial operators in relation to others. The Court ruled that an undertaking which has a monopoly and to which a Member State grants exclusive rights within the meaning of Article 90 is not, as such, incompatible with Article 86 of the treaty (abuse of dominant position by undertaking). Mr. Advocate-General Reischl in his Opinion in Sacchi noted that the transmission of television programmes could not be left only to private interests. He noted that the transmission of television programmes was a "public task" — and, in the context of television being a most effective means of mass-communication, the exclusion of private groups even in the context of commercial television could be justified 26 . That view may not be held to-day, a decade after the Sacchi judgment. However, on the basis of the Sacchi judgment and the case law of the Court of Justice to date, it could be argued that notwithstanding Article 52 of the Treaty (freedom of establishment) no one can claim the absolute right to engage in private radio and television broadcasting where such right is withheld by Member States from their own nationals 27 . The fundamental changes which the new technologies will bring may force a reappraisal of previous case law and assumptions based on such case law. Perhaps the fundamental question concerning broad- casting to-day is the question of who has the right to broadcast what material to whom. This is a question of major importance because of the often contradictory broadcasting laws of each Member State of the Community. This is particularly so in the context of national rules regulating advertising. These rules constitute a serious obstacle to cross-frontier broadcasting between Member States. Broadcasting organisations would find it impossible at the present time to produce programmes containing advertising for simultaneous transmission in different Member States. This is so because of the often contradictory requirements of all the Member States. However, some general principles may be stated here. If a Member State subjects broadcasts from a different Member State — including broadcasts by satellite — to more onerous conditions than those applicable to national broadcasts or cable transmissions or if a Member State curtails or hinders such foreign broadcasts, it is submitted that under Articles 59 and 62 of the Treaty, this would constitute a discriminatory restriction. However, there are exceptional cases when discrimina- tion against foreign broadcasts is permitted. The reservations relate to "public policy, public security and public health" (Articles 56(i), 66 and chapters on the right of establishment and services). There are the restrictions specified in Article 10(2) of the European Convention on Human Rights. There is also the question of the status of the European Convention on Human Rights in Community Law. Article 10(2) of the Convention provides, inter alia, for restrictions on the right to receive and impart information which are prescribed by law and are necessary in a democratic society. These restrictions may be in the interests o f " . . . national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the

protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary". These restrictions are all qualified by the words "necessary in a democratic society". By virtue of the decision of Court of Justice of the European Communities in Rutili 2 \ it is submitted that restrictions on cross-frontier broadcasting under the headings of public policy, public security and public health are subject to the qualification that the reservations are "necessary in a democratic society". The writers take the view that the expression "in a democratic society" is not a reference to a specific democratic state but to a free society in general. The internationalisation of broadcasting creates the need for hármonisation of national laws. The European Commission in its recent Green Paper "Television without Frontiers" 29 proposes that all discriminatory and other restrictions on broadcasts from other Member States which are not in accordance with the directly applicable rules of the Treaty (Articles 59 and 62 in particular) should be suppressed. The Commission suggested that certain aspects of national laws on radio and television advertising be coordinated. Harmonisation of laws on the protection of the young, right of reply and copyright were also suggested by the Commission. The Commission's Green Paper was intended as a basis for a debate with interested groups before legislative proposals were put to the Council. Article 10 of the European Convention on Human Rights may also provide a basis for solving legal problems associated with cross frontier broadcasting in Member DO YOU WANT TO IMPROVE YOUR CLIENT SERVICES AND YOUR FEE INCOME? The provisions of the Companies Acts 1963 to 1983 provide a legislative framework within which all companies incorporated in the Republic of Ireland must operate. To assist you and your clients to fulfil your obligations we provide the following company secretarial services:- • Advising on the legislation and arrangements necessary for the holding of Directors and General Meetings. • Preparation of statutory returns prescribed under the Companies Acts. • Maintaining the Minute Book and the statutory Registers. • Advising on the implications of existing and new legislation. • Assistance with Stamp and Capital duty mitiga- tion schemes. • Acting as Secretary and Registrar. Regardless of the size of your portfolio, our expertise can provide you with an excellent oppor- tunity of developing your client services and your fee income; if you already provide a company secretarial service, contact us and discover how we can work together to make it more efficient and more profitable. Forfurther information contact Joseph A. Hickey. PEARSE TRUST COMPANY . 18 Mcrrion Square, Dublin 2. Tel: (01) 767261

48