| | 32004L0018: c3-16.bBroadcasting    
| 32004L0018 - Classic (3rd generation) | Article 16.b | | (b) the acquisition, development, production or co-production of programme material intended for broadcasting by broadcasters and contracts for broadcasting time; | | 31992L0050 - Services (2nd generation) | Article 1.a.iv | | (iv) contracts for the acquisition, development, production or co-production of programme material by broadcasters and contracts for broadcasting time; |
| Case | Pte | Ref | Text | C-337/06
Bayerischer Rundfunk | 61-67 | S2-1.a.iv
S2-1.b.2 | 61. By its third question, the referring court asks whether Article 1(a)(iv) of Directive 92/50 must, in the light of the third indent of the second subparagraph of Article 1(b) of that directive, be interpreted as meaning that only public contracts relating to the services specified in the former provision are excluded from the scope of that directive.
62. Article 1(a)(iv) of Directive 92/50 provides that that directive does not apply to public contracts for services which fall within the essential function of public broadcasting bodies, namely the creation and production of programme material, for the cultural and social reasons alluded to in the eleventh recital of the preamble to Directive 92/50 and, more explicitly, in recital 25 of the preamble to Directive 2004/18, which render that application inappropriate.
63. That provision, as the Advocate General suggests in point 80 of his Opinion, reflects the same concern as that expressed in the German Basic Law, namely the guarantee that the public broadcasting bodies can accomplish their public service remit with complete independence and impartiality.
64. The provision in question being an exception to the principal objective of the Community rules on the awarding of public contracts, as stated in paragraph 39 of this judgment, namely freedom of movement of services and a market open to competition which is as wide as possible, it must be interpreted strictly. Accordingly, the only public contracts excluded from the scope of Directive 92/50 are those for the services specified in Article 1(a)(iv) of that directive. On the other hand, the Community rules apply in full to public contracts for services which have no connection to the activities which form part of the performance of the publicservice remit, in the proper sense, of the public broadcasting bodies.
65. Support for that approach is found in the above-mentioned recital 25 in the preamble to Directive 2004/18 which states, by way of guidance, in the penultimate sentence, that the exclusion from application of that directive should not apply to the supply of technical equipment necessary for the production, co-production and broadcasting of programmes.
66. However, it must be made clear that that those considerations apply only when what is at issue in a particular case is a contract awarded by a body to be regarded as a contracting authority' within the meaning of Article 1(b) of Directive 92/50.
67. The answer to be given therefore to the third question referred is that Article 1(a)(iv) of Directive 92/50 must be interpreted as meaning that only those public contracts which relate to the services specified in that provision are excluded from the scope of that directive. |
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