The EU Court of Justice has recently taken position on a delicate issue addressing the EU Member States’ sovereignty in respect to television broadcasting.

Reminder: the ‘Television without Frontiers’ Directive seeks to remove obstacles to the freedom to provide television broadcasting services within the EU. The directive provides that Member States must ensure that programs broadcast outside their territory do not contain any incitement to hatred on grounds of race, sex, religion or nationality.

The case at stake involves the Danish company Mesopotamia Broadcast, and in particular one of their television channels, Roj TV, which broadcasts programs via satellite, mainly in Kurdish, throughout Europe and the Middle East.

In 2008, the German authorities prohibited Mesopotamia Broadcast from conducting any activities in Germany on the ground that Roj TV’s programs were at variance with the ‘principles of international understanding’ as defined by German constitutional law. The ground for the prohibition rested on the fact that Roj TV’s programs called for the resolution of differences between Kurds and Turks by violent means, including in Germany, and supported the efforts of the PKK (the Kurdistan Workers’ Party) to recruit young Kurds as guerrilla fighters against the Republic of Turkey.

Mesopotamia Broadcast brought an action before the German courts seeking to have that prohibition set aside, relying on the fact that, according to the directive, only Denmark could control their activities. Following this request the German Federal Court turned to the EU Court of Justice.

And the Court of Justice has just issued its conclusions. Considering that Member States are not authorised to restrict the retransmission on their territory of programs broadcast from another Member State, the ruling stipulates:

– the Danish authorities alone are competent to verify whether Roj TV’s programs do in fact constitute ‘incitement to hatred’, and to ensure that they do not contain such incitement;

– Germany cannot prevent the retransmission on its territory of programs in Kurdish, which are broadcast by Roj TV from Denmark;

– so long as the retransmission of those programs is not prevented, Germany may prohibit, on its territory, the activities of Roj TV and Mesopotamia Broadcast as associations.

The Kurdish settled in Germany thus remain able to watch programs broadcast in their language.

Click here for the EU Court of Justice full press release.