On 22 December 2010, the European Court of Justice ("ECJ") declined jurisdiction to answer a question for a preliminary ruling referred by the Licensing and Control Authority (Collège d'autorisation et de contrôle) of the Belgian French-speaking Broadcasting Authority (Conseil supérieur de l'audiovisuel).
On 8 October 2009, a Belgian television viewer filed a complaint with the Investigatory Office of the Broadcasting Authority alleging that RTL Belgium SA ("RTL") infringed the rules on teleshopping. As the Investigatory Office concurred with the viewer, it requested RTL to communicate its observations in this respect. RTL replied that the Belgian regulator was not competent to examine the matter since it is not RTL which broadcasted the teleshopping programs but its parent company CLT-UFA, which is established in Luxembourg. The Licensing and Control Authority was therefore in doubt as to whether the Belgium or the Luxembourg authorities were competent to supervise RTL's activities. It thus referred a question for a preliminary ruling to the ECJ by which it sought clarification as to where jurisdiction lies.
As only courts or tribunals can refer questions for a preliminary ruling, the ECJ first examined whether the Licensing and Control Authority of the Belgian Broadcasting Authority can be considered to be a court or tribunal and, accordingly, whether the ECJ has jurisdiction to give a ruling on the question referred. The ECJ recalled that according to settled case-law, in order to determine whether a body making a reference for a preliminary ruling is a court or tribunal, a number of factors must be taken into account, such as whether the body is established by law, whether it is permanent, whether its jurisdiction is compulsory, whether its procedure is inter partes, whether it applies rules of law and whether it is independent.
In the present case, the main question examined by the ECJ is whether the body referring the question (the Licensing and Control Authority of the Broadcasting Authority) is independent from the body that issued the contested decision in the first place (the Investigatory Office of the Broadcasting Authority). The ECJ disagreed with the arguments put forward by Belgium and the European Commission and decided that the criterion of independence was not satisfied. The reason for this is that neither the structure of the Broadcasting Authority and the bodies of which it is made up, nor the tasks assigned to it support a finding that the Broadcasting Authority acts as an impartial third party between the alleged offender, on the one hand, and the administrative authority responsible for monitoring the audiovisual sector, on the other hand.
The ECJ took account of the fact that there is a significant overlap of members within the various bodies of the Broadcasting Authority. The Court considered that "through the Bureau, the Licensing and Control Authority of the Broadcasting Authority, which is a decision-making body, is linked, in terms of functions, with the Broadcasting Authority as a whole and with the Investigatory Office, upon whose proposals it decides. Consequently, when it adopts a decision, the Licensing and Control Authority of the Broadcasting Authority is not distinct from the administrative body, which can act as a party to proceedings relating to broadcasting matters" (para. 45 of the judgment). The Court therefore considered that it does not have jurisdiction to answer the question referred.
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