The Belgian Constitutional Court gave the country's French (speaking) Community a clear win, in principle, in the dispute with Netflix over the revised audiovisual funding regime (judgment of 26 March 2026 available in Dutch and French). The Court accepted that the French Community may require linear and on-demand television service providers to contribute to local audiovisual productions, even if those providers are established in another EU Member State, provided that they target audiences in the French Community.
According to the Audiovisual Media Services Directive (EU) 2018/1808 (“AVMSD”), EU Member States may require media service providers under their jurisdiction to contribute financially to the production of European works, including via direct investment in content and contribution to national funds (Article 13.2 AVMSD). The French Community in Belgium adopted such a financial contribution regime in 2021 and decided to tighten it as from 2027.
Providers of linear and non-linear television services must contribute to local audiovisual productions either by making direct investments through co-productions or pre-purchases of programmes, or by paying into the Centre du Cinéma et de l'Audiovisuel. The scheme excludes providers with a turnover below EUR 700,000, but for providers whose revenues generated on the French-speaking Belgian market exceed EUR 150 million, the investment rate will be 9.5% of those revenues. If a provider opts for investment in local audiovisual productions, at least 35% of the amount must go to the co-production or pre-purchase of works originating from the French-speaking Belgian community, and the investment must in principle generate an equivalent amount of economic benefits in the French-speaking region or the bilingual Brussels-Capital region.
Why was the regime challenged by Netflix?
Netflix argued that the French Community had gone too far by extending its contribution regime to on-demand providers established elsewhere in the EU. It also said the scheme was, in substance, driven by economic policy rather than by a genuine cultural objective. It also criticized the progressive rate structure, the narrow rules on what constitutes a qualifying investment, the limited ability to take account of contributions already made in other Member States and the absence of a prior State aid notification.
Where did the Court side with the French Community?
The Constitutional Court accepted that the French Community may, in principle, impose a financial contribution on providers established in another Member State where they target audiences in its territory. The Court attached significant weight to the cultural and linguistic diversity objective pursued by the French Community and to the Court of Justice's UTECA judgment, recognizing that comparable audiovisual financing obligations may be justified by the objective of promoting cultural and linguistic diversity (case C-222/07).
The Constitutional Court was equally unpersuaded by the attack on the progressive tariff. It stressed that the legislature had deliberately used a turnover-based structure to reflect the providers' ability to contribute, that Member States enjoy a broad margin of discretion when setting contribution levels as part of cultural policy and that the European Commission had not objected to the 9.5% top rate in its comments on the notified draft decree. The Court also noted that, because at least 35% of the investment must go to French-language Belgian works, the local-content portion of the maximum rate amounts in practice to 3.3%. On that basis, it was not prepared to regard the measure as disproportionate.
The State aid plea also failed. The Constitutional Court held that the contribution obligation, whether satisfied by direct investment or by payment, does not amount to State aid within the meaning of Articles 107 and 108 TFEU, relying in part on the UTECA judgment and on the fact that the relevant investments are made with private rather than State resources.
What has the Constitutional Court left open?
Before giving a final ruling on the remaining issues, the Constitutional Court referred five questions to the Court of Justice of the EU. In practical terms, the referral focuses on the parts of the regime that are the hardest to square with the AVMSD's language on proportionality, non-discrimination and the avoidance of overlap between national contribution systems.
The first question asks whether Article 13(2) AVMSD allows Member States to treat the acquisition of broadcasting rights in already-produced European works as a permissible form of direct investment, and, if so, whether a Member State may still prevent a provider established elsewhere in the EU from using those acquisitions to satisfy its contribution obligation. The Constitutional Court also asked whether it is proportionate and non-discriminatory to impose a 65/35 split between investments in European works and French-language Belgian works when the provider chooses direct investment, while imposing no equivalent allocation rule where the provider pays money into the public fund of the Centre du Cinéma et de l'Audiovisuel.
The Constitutional Court further asked whether a targeted Member State must take account of financial contributions that an on-demand provider has already made in another Member State, reflecting the AVMSD's concern to avoid double contributions.
Why does this Belgian case matter?
The judgment of the Belgian Constitutional Court matters well beyond Belgium. It sends a clear signal that audiovisual contribution regimes aimed at streamers and broadcasters cannot be challenged in court, simply because they apply cross-border or have obvious economic effects. It also underlines that cultural and linguistic diversity may justify limits to the freedom to provide services and conduct business in the EU.
For providers active in Belgium, the immediate takeaway is straightforward: the core architecture of the French Community regime has survived constitutional scrutiny, at least for now. The harder questions now sit with the Court of Justice, and its answers are likely to shape the next stage of the European debate on streamer levies, local production obligations and the balance between cultural policy and the single market.
Authors:
- Tom Heremans, Partner at CMS Belgium
- Anastasiia Sova, Legal consultant privacy, AI and tech at CMS Belgium
