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ARD (Freedom to provide services) [1999] EUECJ C-6/98 (28 October 1999)
URL: http://www.bailii.org/eu/cases/EUECJ/1999/C698.html
Cite as:
[1999] ECR I-7599,
[1999] EUECJ C-6/98
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IMPORTANT LEGAL NOTICE - The source of this judgment is the web site of the Court of Justice of the European Communities. The information in this database has been provided free of charge and is subject to a Court of Justice of the European Communities disclaimer and a copyright notice. This electronic version is not authentic and is subject to amendment.
JUDGMENT OF THE COURT (Sixth Chamber)
28 October 1999 (1)
(Television broadcasting - Limitation on transmission time allocated to
advertising)
In Case C-6/98,
REFERENCE to the Court under Article 177 of the EC Treaty (now Article
234 EC) by the Oberlandesgericht Stuttgart, Germany, for a preliminary ruling in
the proceedings pending before that court between
Arbeitsgemeinschaft Deutscher Rundfunkanstalten (ARD)
and
PRO Sieben Media AG,
supported by
SAT 1 Satellitenfernsehen GmbH,
Kabel 1, K 1 Fernsehen GmbH,
on the interpretation of Article 11(3) of Council Directive 89/552/EEC of
3 October 1989 on the coordination of certain provisions laid down by law,
regulation or administrative action in Member States concerning the pursuit of
television broadcasting activities (OJ 1989 L 298, p. 23), as amended by Directive
97/36/EC of the European Parliament and of the Council of 30 June 1997 (OJ 1997
L 202, p. 60),
THE COURT (Sixth Chamber),
composed of: R. Schintgen, President of the Second Chamber, acting as President
of the Sixth Chamber, P.J.G. Kapteyn (Rapporteur) and H. Ragnemalm, Judges,
Advocate General: F.G. Jacobs,
Registrar: H. von Holstein, Deputy Registrar,
after considering the written observations submitted on behalf of:
- Arbeitsgemeinschaft Deutscher Rundfunkanstalten (ARD), by W. Keßler,
Rechtsanwalt, Stuttgart,
- PRO Sieben Media AG, by H.-J. Rabe, of the Brussels Bar,
- Kabel 1, K 1 Fernsehen GmbH, by T. Jestaedt, of the Brussels Bar,
- the Luxembourg Government, by N. Schmit, Director of International
Economic Relations and Cooperation at the Ministry of Foreign Affairs,
acting as Agent,
- the Netherlands Government, by J.G. Lammers, Deputy Legal Adviser in
the Ministry of Foreign Affairs, acting as Agent,
- the Portuguese Government, by L. Fernandes, Director of the Legal Service
of the Directorate General for the European Communities in the Ministry
of Foreign Affairs, and P. Borges, a lawyer in the Directorate General for
the European Communities in that Ministry, acting as Agents,
- the Swedish Government, by E. BrattgÊard, DepartementsrÊad in the Ministry
of Foreign Affairs, acting as Agent,
- the United Kingdom Government, by D. Cooper, of the Treasury Solicitor's
Department, acting as Agent, and R. Thompson, Barrister,
- the Commission of the European Communities, by J. Sack, Legal Adviser,
acting as Agent,
having regard to the Report for the Hearing,
after hearing the oral observations of Arbeitsgemeinschaft Deutscher
Rundfunkanstalten (ARD), represented by W. Keßler; PRO Sieben Media AG,
represented by H.-J. Rabe; Kabel 1, K 1 Fernsehen GmbH, represented by
T. Jestaedt; the French Government, represented by A. Maitrepierre, Chargé de
Mission in the Legal Affairs Directorate of the Ministry of Foreign Affairs, acting
as Agent; the Italian Government, represented by F. Quadri, Avvocato dello Stato;
the United Kingdom Government, represented by J. Eadie, Barrister; and the
Commission, represented by J. Sack, at the hearing on 22 April 1999,
after hearing the Opinion of the Advocate General at the sitting on 24 June 1999,
gives the following
Judgment
- By order of 17 December 1997, received at the Court on 12 January 1998, the
Oberlandesgericht Stuttgart (Higher Regional Court, Stuttgart) referred for a
preliminary ruling under Article 177 of the EC Treaty (now Article 234 EC) two
questions on the interpretation of Article 11(3) of Council Directive 89/552/EEC
of 3 October 1989 on the coordination of certain provisions laid down by law,
regulation or administrative action in Member States concerning the pursuit of
television broadcasting activities (OJ 1989 L 298, p. 23), as amended by Directive
97/36/EC of the European Parliament and of the Council of 30 June 1997 (OJ 1997
L 202, p. 60).
- Those questions have arisen in legal proceedings between Arbeitsgemeinschaft
Deutscher Rundfunkanstalten (hereinafter 'ARD') and PRO Sieben Media AG
(hereinafter 'PRO Sieben'), supported by SAT 1 Satellitenfernsehen GmbH and
Kabel 1, K 1 Fernsehen GmbH (hereinafter 'SAT 1 and Kabel 1').
- ARD consists of 11 public-law broadcasting organisations of the German Länder
which are jointly responsible for the television programming of ARD. PRO Sieben
is a private television broadcasting company, as are SAT 1 and Kabel 1.
Legal framework
Directive 89/552, as amended by Directive 97/36
- Article 3(1) of Directive 89/552 provides as follows:
'Member States shall remain free to require television broadcasters under their
jurisdiction to comply with more detailed or stricter rules in the areas covered by
this Directive.'
- Under Article 11(1) of Directive 89/552, advertisements must as a rule be inserted
between programmes; however, they may also be inserted during programmes in
such a way 'that the integrity and value of the programme, taking into account
natural breaks in and the duration and nature of the programme, and the rights of
the rights holders are not prejudiced.'
- Article 11(2) of the Directive provides that, in programmes consisting of
autonomous parts, such as the televised retransmission of sporting events,
advertisements may be inserted only between the parts or in the intervals.
- Article 11(3) of the Directive provides as follows:
'The transmission of audiovisual works such as feature films and films made for
television (excluding series, serials, light entertainment programmes and
documentaries), provided their scheduled duration is more than 45 minutes, may
be interrupted once for each period of 45 minutes. A further interruption shall be
allowed if their scheduled duration is at least 20 minutes longer than two or more
complete periods of 45 minutes.'
- Article 20 of Directive 89/552 provides:
'Without prejudice to Article 3, Member States may, with due regard for
Community law, lay down conditions other than those laid down in Article 11(2)
to (5) and Articles 18 and 18a in respect of broadcasts intended solely for the
national territory which cannot be received, directly or indirectly, by the public in
one or more other Member States.'
The European Convention on Television
- Article 14(3) of the European Convention on Transfrontier Television of 5 May
1989 (hereinafter 'the Convention') is worded as follows in the French and English
versions, which are the authentic texts:
English version
'The transmission of audiovisual works such as feature films and films made for
television (excluding series, serials, light entertainment programmes and
documentaries), provided their duration is more than 45 minutes, may be
interrupted once for each complete period of 45 minutes. A further interruption
is allowed if their duration is at least 20 minutes longer than two or more complete
periods of 45 minutes.'
French version
'La transmission d'oeuvres audiovisuelles, telles que les longs métrages
cinématographiques et les films conçus pour la télévision (à l'exclusion des séries,
des feuilletons, des émissions de divertissement et des documentaires), à condition
que leur durée soit supérieure à quarante-cinq minutes, peut être interrompue une
fois par tranche de quarante-cinq minutes. Une autre interruption est autorisée si
leur durée est supérieure d'au moins vingt minutes à deux ou plusieurs tranches
complètes de quarante-cinq minutes.'
German law
- The German Grundgesetz (Basic Law) confers on the Länder legislative competence
in the matter of radio and television broadcasting. Under the terms of the
Staatsvertrag über den Rundfunk im vereinigten Deutschland (Treaty on Broadcasting
in the United Germany) (hereinafter 'the Rundfunkstaatsvertrag') of 31 August
1991, public-law broadcasting organisations may only broadcast a maximum of 20
minutes advertising in their televised programmes during any working day. Private
television broadcasting companies may allocate a maximum of 20% of daily
broadcasting time to advertising, including 15% for spot advertisements.
- Article 26(4) of the Rundfunkstaatsvertrag provides as follows:
'In derogation from the second sentence of paragraph (3), works such as feature
films and television films, with the exception of series, serials, light entertainment
programmes and documentaries, where they last for longer than 45 minutes, may
be interrupted once for each complete period of 45 minutes. A further interruption
is allowed if those programmes last for at least 20 minutes longer than two or more
complete periods of 45 minutes.'
- This provision was reproduced in Article 44(4) of the Dritter Staatsvertrag zur
Änderung rundfunkrechtlicher Staatsverträge (Third Treaty amending the Treaties on
Broadcasting Law), which entered into force on 1 January 1997.
- By letter of 7 April 1992, the German Government informed the Commission that
Directive 89/552 had been transposed and forwarded to it the 1991
Rundfunkstaatsvertrag.
Facts and questions submitted for a preliminary ruling
- According to the case-file, the matter at issue in the main proceedings is the
calculation of the number of advertising interruptions authorised under Article
26(4) of the Rundfunkstaatsvertrag in feature films broadcast by private broadcasting
companies. Two interpretations are put forward, commonly called 'the gross
principle' and 'the net principle'.
- According to the gross principle, which is supported by PRO Sieben, SAT 1 and
Kabel 1, the duration of advertisements must be included in the period of time in
relation to which the permissible number of interruptions is calculated. According
to the net principle, which is supported by ARD, only the duration of the films
themselves is to be included. It is common ground that in certain circumstances
application of the gross principle will permit a greater number of interruptions than
would be allowed under the net principle.
- By judgment of 10 October 1996, the Landesgericht Stuttgart (Regional Court,
Stuttgart) ordered PRO Sieben to desist from interrupting by advertisements the
broadcasting of audiovisual works such as feature films and television films whose
duration, excluding interpolated advertising time (the net principle), does not
exceed 45 minutes or interrupting by advertisements, more often than once per
complete period of 45 minutes, longer television works, calculated according to the
net principle. A further interruption, the Landesgericht ruled, would be permissible
if the programme, calculated according to the net principle, lasted at least 20
minutes longer than two or more complete periods of 45 minutes.
- On appeal against that decision to the Oberlandesgericht, PRO Sieben argued that,
even though the net principle had to be applied under German legislation, this was
contrary to Directive 89/552 and to primary Community law.
- While it agreed with the interpretation of national law given by the Landesgericht
Stuttgart, the Oberlandesgericht Stuttgart none the less considered that the
resolution of the dispute depended on the interpretation of Directive 89/552.
- In those circumstances, the Oberlandesgericht Stuttgart decided to stay proceedings
and to refer the following questions to the Court for a preliminary ruling:
'(1) Does Article 11(3) of Directive 97/36/EC of the European Parliament and
of the Council of 30 June 1997 amending Council Directive 89/552/EEC
("the Television Amending Directive") or the identical Article 11(3) of
Council Directive 89/552/EEC of 3 October 1989 on the coordination of
certain provisions laid down by law, regulation or administrative action in
Member States concerning the pursuit of television broadcasting activities
("the Television Directive") prescribe the gross principle or the net
principle?
(2) On the assumption that Article 44(4) of the Dritter Staatsvertrag zur
Änderung rundfunkrechtlicher Staatsverträge (Third Treaty amending
Treaties on Broadcasting Law, Annex B 33, p. 437 of the case-file)
prescribes the net principle, is that then compatible with Article 11(3) in
conjunction with Article 3(1) of the Television Directive or with primary
Community law (Articles 5, 6, 30 et seq., 59 et seq. and 85 et seq. of the EC
Treaty and the general principle of equality)?'
The first question
- By its first question, the national court is asking essentially whether Article 11(3)
of Directive 89/552, as amended by Directive 97/36, prescribes the gross principle
or the net principle.
- In the view of ARD and the French, Netherlands and Portuguese Governments,
Article 11(3) of Directive 89/552, as amended, refers to the net principle. On the
other hand, PRO Sieben, supported by SAT 1 and Kabel 1 and by the Italian,
Luxembourg and United Kingdom Governments and by the Commission take the
view that this provision refers to the gross principle.
- In support of their respective interpretations, the parties to the main proceedings,
the Governments which have submitted observations to the Court, and the
Commission have relied on arguments based on the wording of Article 11(3) of
Directive 89/552 in its German, English and French versions, on Article 14(3) of
the Convention, on the scheme and purpose of Directive 89/552, and on the history
of that directive and of Directive 97/36.
- First of all, as the Advocate General points out in points 18 to 25 of his Opinion,
the arguments based on the wording of Article 11(3) of Directive 89/552, as
amended, do not provide any clear indication as to whether that provision
prescribes the gross principle or the net principle.
- With regard, next, to Article 14(3) of the Convention, the wording of which is
identical to that of Article 11(3) of Directive 89/552, as amended, except that the
first provision refers to 'duration', whereas the second provision refers to
'scheduled duration', it is sufficient for the Court to observe, as the Advocate
General observes in point 29 of his Opinion, that this difference may be open to
contradictory interpretations.
- For the reasons mentioned in points 31 to 36 of the Advocate General's Opinion,
neither the declaration by the Council and the Commission contained in the
minutes of the Council of 3 October 1989 nor the proposal by the European
Parliament of 14 February 1996 concerning Directive 97/36 allow any conclusive
arguments to be drawn in answer to the question whether Article 11(3) of Directive
89/552, as amended, prescribes the gross principle or the net principle.
- The conclusion must therefore be that the wording of Article 11(3) of Directive
89/552, as amended, is ambiguous.
- The Court has held that, when the text of a Community provision contains, in its
different language versions, considered in the light of the history of the provision
and the preparatory documents, on which the parties have based their arguments
in their observations submitted to the Court, too many contradictory and ambiguous
elements to provide the answer, it is necessary, in order to interpret that provision,
to consider its context and the objective of the rules in question (Case 11/76
Netherlands v Commission [1979] ECR 245, paragraph 6).
- As the Court found in Case C-412/93 Leclerc-Siplec v TF1 Publicité and M6
Publicité [1995] ECR I-179, paragraph 28, and in Joined Cases C-34/95, C-35/95
and C-36/95 KO v De Agostini and TV-Shop [1997] ECR I-3843, paragraph 3, the
main purpose of Directive 89/552, which was adopted on the basis of Article 57(2)
(now, after amendment, Article 47(2) EC) and Article 66 (now Article 55 EC) of
the EEC Treaty, is to ensure freedom to provide television broadcasting services.
- A provision which imposes a restriction, in the matter of the provision of services,
on an activity involving the exercise of a fundamental freedom such as the freedom
to provide television broadcasting services must express that restriction in clear
terms.
- It follows that, when a provision of Directive 89/552 imposes a restriction on
broadcasting and on the distribution of television broadcasting services, and the
Community legislature has not drafted that provision in clear and unequivocal
terms, it must be given a restrictive interpretation.
- Since Article 11(3) of Directive 89/552, as amended, imposes a restriction as
regards the possibility of interrupting the transmission of audiovisual works by
advertising, that restriction must be interpreted in the strictest possible sense.
- It is common ground that the gross principle allows a greater number of
interruptions for advertising than the net principle.
- The answer to be given to the first question must therefore be that Article 11(3)
of Directive 89/552, as amended by Directive 97/36, is to be construed as
prescribing the gross principle, so that, in order to calculate the 45-minute period
for the purpose of determining the number of advertising interruptions allowed in
the broadcasting of audiovisual works such as feature films and films made for
television, the duration of the advertisements must be included in that period.
The second question
The first part of the second question
- By the first part of its second question, the national court is asking essentially
whether Article 11(3), in conjunction with Article 3(1), of Directive 89/552, as
amended by Directive 97/36, authorises Member States to prescribe the net
principle.
- PRO Sieben argues that it follows from both the purpose and scheme of Directive
89/552 that Article 3(1) thereof must be interpreted restrictively. It submits in
particular that the right which Member States have under that provision to set
more detailed or stricter rules cannot relate to Article 11 of Directive 89/552.
- It states in this regard that, so far as concerns television advertising which, under
Article 11(1), may be inserted during programmes on the conditions set out in
Article 11(2) to (5), Member States cannot impose conditions other than those
mentioned in Article 20 of Directive 89/552, as amended. However, according to
PRO Sieben, the derogation provided for by the latter provision cannot justify
application of the net principle in view of the fact that Article 20 concerns only
broadcasts solely intended for the national territory which cannot be received,
directly or indirectly, in one or more other Member States.
- The Court observes first of all that it is clear from the wording of Article 20 of
Directive 89/552 that it applies 'without prejudice to Article 3' of that directive.
- Next, the Court observes that the interpretation advocated by PRO Sieben would
render Article 3(1) nugatory as a general provision in an essential area covered by
Directive 89/552, as amended.
- Neither the recitals in its preamble nor the objective of Directive 89/552 suggest
that Article 20 must be construed as depriving Member States of the right which
Article 3(1) of that directive allows them.
- The 27th recital in the preamble to Directive 89/552 refers in general terms, and
without limiting it to the circumstances defined in Article 20, to the right which
Member States have to set more detailed or stricter rules than the minimum rules
and standards to which advertising is subject under that directive.
- In contrast, the right which Member States have under Article 20 of Directive
89/552 is referred to in the 28th recital in its preamble, where reference is made
to the right which Member States have to lay down different conditions for the
insertion of advertising and different limits for the volume of advertising in order
to facilitate those particular broadcasts, on condition that those broadcasts are
intended solely for the national territory and may not be received, directly or
indirectly, in one or more other Member States.
- Finally, the attainment of the objective of Directive 89/552, which is to ensure
freedom to provide television broadcasting services in accordance with the
minimum rules which it lays down, is not affected in any way if Member States
impose stricter rules on advertising.
- The answer must therefore be that Article 11(3), in conjunction with Article 3(1),
of Directive 89/552, as amended, authorises Member States to prescribe, for
television broadcasters under their jurisdiction, the net principle for advertisements
which may be inserted during programmes, and thus to provide that, in order to
calculate that period, the duration of the advertisements must be excluded, on
condition, however, that those rules are compatible with other relevant provisions
of Community law.
The second part of the second question
- By the second part of its second question, the national court asks whether Article 5
of the EC Treaty (now Article 10 EC), Articles 6, 30, 59 of the EC Treaty (now,
after amendment, Articles 12 EC, 28 EC and 49 EC), Article 85 of the EC Treaty
(now Article 81 EC) and the general principle of equality preclude a Member State
from prescribing, under Article 3(1) of Directive 89/552, application of the net
principle.
Article 30 of the Treaty
- The Court has already held that legislation which prohibits televised advertising
within a certain sector concerns selling arrangements since it prohibits a particular
form of promotion of a particular method of marketing products (Leclerc-Siplec,
cited above, paragraph 22).
- Since the restriction on advertising in question in the main proceedings is of a
similar, but less extensive, kind, it also concerns selling arrangements.
- In paragraph 16 of its judgment in Joined Cases C-267/91 and C-268/91 Keck and
Mithouard [1993] ECR I-6097, the Court held that national provisions restricting
or prohibiting certain selling arrangements are not caught by Article 30 of the
Treaty so long as they apply to all relevant traders operating within the national
territory and so long as they affect in the same manner, in law and in fact, the
marketing of domestic products and of those from other Member States.
- Those two conditions are clearly satisfied by rules on television advertising such as
those at issue in the main proceedings.
Article 59 of the Treaty
- As regards the compatibility with Article 59 of the Treaty of national rules imposing
the net principle, which a Member State may prescribe by exercising its right under
Article 3(1) of Directive 89/552, as amended, it must be observed that, since such
rules limit the possibility for television broadcasters established in the State of
transmission to broadcast advertisements for the benefit of advertisers established
in other Member States, they involve a restriction on the freedom to provide
services.
- It must, however, be pointed out that the protection of consumers against abuses
of advertising or, as an aim of cultural policy, the maintenance of a certain level of
programme quality constitute overriding reasons relating to the general interest
which may justify restrictions on freedom to provide services (see, in particular,
Case C-288/89 Collectieve Antennevoorziening Gouda and Others v Commissariaat
voor de Media [1991] ECR I-4007, paragraph 27).
- As regards the proportionality of the restriction at issue, it is settled case-law that
requirements imposed on the providers of services must be appropriate to ensure
achievement of the intended aim and must not go beyond what is necessary in
order to achieve that aim (see, in particular, Collectieve Antennevoorziening Gouda,
cited above, paragraph 15, and Case C-384/93 Alpine Investments v Minister van
Financiën [1995] ECR I-1141, paragraph 45).
- There is nothing in the case-file to warrant the conclusion that those conditions are
not satisfied in the case before the national court.
Articles 5, 6 and 85 of the Treaty and the principle of equal treatment
- As the Advocate General observes in paragraphs 83 to 85 of his Opinion, Articles
5, 6 and 85 of the Treaty, as well as the principle of equal treatment, are not
relevant to the situation described by the national court.
- It follows from all of the foregoing that Articles 5, 6, 30 and 85 of the Treaty and
the general principle of equal treatment do not apply to national rules which
prescribe the application of the net principle for television broadcasters under their
jurisdiction. Article 59 of the Treaty does not preclude a Member State from
prescribing, under Article 3(1) of Directive 89/552, the application of the net
principle.
Costs
55. The costs incurred by the French, Italian, Luxembourg, Netherlands, Portuguese,
Swedish and United Kingdom Governments and by the Commission, which have
submitted observations to the Court, are not recoverable. Since these proceedings
are, for the parties to the main proceedings, a step in the proceedings pending
before the national court, the decision on costs is a matter for that court.
On those grounds,
THE COURT (Sixth Chamber),
in answer to the questions referred to it by the Oberlandesgericht Stuttgart by
order of 17 December 1997, hereby rules:
1. Article 11(3) of Council Directive 89/552/EEC of 3 October 1989 on the
coordination of certain provisions laid down by law, regulation or
administrative action in Member States concerning the pursuit of television
broadcasting activities, as amended by Directive 97/36/EC of the European
Parliament and of the Council of 30 June 1997, is to be construed as
prescribing the gross principle, so that, in order to calculate the 45-minute
period for the purpose of determining the number of advertising
interruptions allowed in the broadcasting of audiovisual works such as
feature films and films made for television, the duration of the
advertisements must be included in that period.
2. Article 11(3), in conjunction with Article 3(1), of Directive 89/552, as
amended, authorises Member States to prescribe, for television
broadcasters under their jurisdiction, the net principle for advertisements
which may be inserted during programmes, and thus to provide that, in
order to calculate that period, the duration of the advertisements must be
excluded, on condition, however, that those rules are compatible with other
relevant provisions of Community law.
Article 5 of the EC Treaty (now Article 10 EC), Articles 6 and 30 of the EC
Treaty (now, after amendment, Articles 12 EC and 28 EC), Article 85 of the
EC Treaty (now Article 81 EC) and the general principle of equal treatment
do not apply to national rules which prescribe the application of the net
principle for television broadcasters under their jurisdiction.
Article 59 of the EC Treaty (now, after amendment, Article 49 EC) does not
preclude a Member State from prescribing, under Article 3(1) of Directive
89/552, the application of the net principle.
SchintgenKapteyn
Ragnemalm
|
Delivered in open court in Luxembourg on 28 October 1999.
R. Grass
J.C. Moitinho de Almeida
Registrar
President of the Sixth Chamber
1: Language of the case: German.