Opinion of the Advocate General — ECLI:EU:C:1996:333
Date: 1996-09-17
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Right of establishment;Free movement of goods;Measures having equivalent effect;Quantitative restrictions;Freedom to provide services
Procedure: Reference for a preliminary ruling
Origin: Sweden

Summary of the Judgment
1. Freedom to provide services — Television broadcasting — Directive 89/552 — Television
advertising — Monitoring of compliance with the directive — Monitoring to he carried out
hy the Member State from which broadcasts originate — National legislation on the protec­
tion of consumers against misleading advertising — Measures taken against an advertiser in
relation to television advertising broadcast from another Member State — Whether permis­
sible — Condition — Retransmission, as such, of television broadcasts from that Member
State must not be prevented
(Council Directives 84/450 and 89/552)
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SUMMARY —JOINED CASES C-34/95, C-35/95 AND C-36/95
2. Free movement of goods — Quantitative restrictions — Measures having equivalent effect —
Concept — Obstacles resulting from national provisions regulating selling arrangements in a
non-discriminatory way — Inapplicability of Article 30 of the Treaty — Television advertis­
ing — Legislation on misleading advertising — Measures taken against an advertiser in rela­
tion to television advertising broadcast from another Member State — Whether permissible
— Conditions
(EC Treaty, Arts 30 and 36)
3. Freedom to provide services — Restrictions — Television advertising — Legislation on mis­
leading advertising — Measures taken against an advertiser in relation to television advertis­
ing broadcast from another Member State —Justification based on grounds of general inter­
est — Conditions
(EC Treaty, Arts 56 and 59)
4. Freedom to provide services — Television broadcasting — Directive 89/552 — Television
advertising — Monitoring of compliance with the directive — Monitoring to be carried out
by the Member State from which broadcasts originate — National provisions specifically
designed to control the content of television advertising with regard to minors — Application
of such provisions to broadcasts from other Member States — Not permissible
(Council Directive 89/552, Arts 16 and 22)
1. Directive 89/552, on the coordination of
certain provisions laid down by law,
regulation or administrative action in
Member States concerning the pursuit of
television broadcasting activities, does not
preclude a Member State from taking,
pursuant to general legislation on protec­
tion of consumers against misleading
advertising, measures such as prohibitions
and injunctions against an advertiser in
relation to television advertising broad­
cast from another Member State, pro­
vided that those measures do not prevent
the retransmission, as such, in its territory
of television broadcasts coming from that
other Member State.
Although the directive provides that the
Member States are to ensure freedom of
reception and are not to impede retrans­
mission on their territory of television
broadcasts coming from other Member
States on grounds relating to television
advertising and sponsorship, it does not
have the effect of excluding completely
and automatically the application of rules
other than those specifically concerning
the broadcasting and distribution of pro­
grammes and, in particular, of national
rules which have the general aim of con­
sumer protection, provided that they do
not involve secondary control of televi­
sion broadcasts in addition to the control
which the broadcasting Member State
must carry out.
Moreover, Directive 84/450, relating to
the approximation of the laws, regula-
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KO v DE AGOSTINI AND TV-SHOP
tions and administrative provisions of the
Member States concerning misleading
advertising, which provides in particular
in Article 4(1) that Member States are to
ensure that adequate and effective means
exist for the control of misleading adver­
tising in the interests of consumers as
well as competitors and the general pub­
lic, could be robbed of its substance in
the field of television advertising if the
receiving Member State were deprived of
all possibility of adopting measures
against an advertiser and this would be in
contradiction with the express intention
of the Community legislature.
2. National measures restricting or prohibit­
ing certain selling arrangements are not
covered by Article 30 of the Treaty, so
long as they apply to all 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 Mem­
ber States. Legislation which prohibits
television advertising in a particular sec­
tor must be regarded as concerning such
selling arrangements for products in that
sector in that it prohibits a form of pro­
motion of a certain method of marketing
products.
It follows that, on a proper construction,
Article 30 of the Treaty does not preclude
a Member State from taking, on the basis
of provisions of its domestic legislation
on misleading advertising, measures
against an advertiser in relation to televi­
sion advertising broadcast from another
Member State, provided that those provi­
sions affect in the same way, in law and in
fact, the marketing of domestic products
and of those from other Member States,
are necessary for meeting overriding
requirements of general public impor­
tance, such as fair trading and the protec­
tion of consumers, or one of the aims laid
down in Article 36 of the Treaty, are pro­
portionate for that purpose, and those
aims or overriding requirements could
not be met by measures less restrictive of
intra-Community trade.
3. On a proper construction of Article 59 of
the Treaty, a Member State is not pre­
cluded from taking, on the basis of provi­
sions of its domestic legislation on mis­
leading advertising, measures against an
advertiser in relation to television adver­
tising broadcast from another Member
State. However, it is for the national court
to determine whether those provisions
are necessary for meeting overriding
requirements of general public impor­
tance, such as fair trading and the protec­
tion of consumers, or one of the aims
stated in Article 56 of the Treaty, whether
they are proportionate for that purpose
and whether those aims or overriding
requirements could be met by measures
less restrictive of intra-Community trade.
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SUMMARY —JOINED CASES C-34/95, C-35/95 AND C-36/95
4. Directive 89/552, on the coordination of
certain provisions laid down by law,
regulation or administrative action in
Member States concerning the pursuit of
television broadcasting activities, is to be
interpreted as precluding the application
to television broadcasts from other Mem­
ber States of a provision of a domestic
broadcasting law which provides that
advertisements broadcast in commercial
breaks on television must not be designed
to attract the attention of children under
12 years of age.
Directive 89/552 contains a set of provi­
sions specifically devoted to the protec­
tion of minors in relation to television
programmes in general and television
advertising in particular, the observance
of which must be ensured by the broad­
casting State. Although they do not have
the effect of prohibiting application of
legislation of the receiving State designed
in general to protect consumers or minors
provided that this does not prevent
retransmission, as such, in its territory of
broadcasts from another Member State,
those provisions preclude the receiving
State from applying, to broadcasts from
other Member States, provisions specifi­
cally designed to control the content of
television advertising with regard to
minors, thereby adding a secondary con­
trol to the control which the broadcasting
Member State must exercise under that
directive.
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