Opinion of the Advocate General — ECLI:EU:C:2015:667
Date: 2015-10-06
Language of the case: Finnish
Subject matter: Freedom to provide services
Procedure: Reference for a preliminary ruling
Origin: Finland

Summary — Judgment of the Court (Fourth Chamber), 17 February 2016 1. Freedom to provide services — Television broadcasting activities — Directive 2010/13 — Separation of television advertising and programmes — National legislation under which the screen may be split into one column showing the closing credits of a programme and another showing the upcoming programmes in order to separate the programme which has come to an end from the advertising break — No acoustic or optical signal — Lawfulness — Conditions — Verification by the national court (European Parliament and Council Directive 2010/13, Art. 19(1)) 2. Freedom to provide services — Television broadcasting activities — Directive 2010/13 — Limit of 20% per clock hour on the broadcasting time for television advertising spots — Sponsorship signs shown in programmes other than the sponsored programme — Included (European Parliament and Council Directive 2010/13, Art. 23(1) and (2)) 3. Freedom to provide services — Television broadcasting activities — Directive 2010/13 — Limit of 20% per clock hour on the broadcasting time for television advertising spots — Scope — ‘Black seconds’ inserted between the various spots of a television advertising break or between that break and the television programme — Included (European Parliament and Council Directive 2010/13, Art. 23(1)) 1. Article 19(1) of Directive 2010/13 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services (Audiovisual Media Services Directive) must be interpreted as not precluding national legislation under which a split screen that shows the closing credits of a television programme in one column and a list presenting the upcoming programmes in the other, in order to separate the programme which is ending from the television advertising break that follows it, does not necessarily have to be combined with, or followed by, an acoustic or optical signal, provided that such a means of separation meets, in itself, the requirements set out in the first sentence of Article 19(1). It is clear from the wording of that provision, read in the light of recital 83 of the directive, that, whilst television advertising and teleshopping must be kept quite distinct from television programmes, by using the various means set out in the second sentence of Article 19(1) of the directive, such means nonetheless cannot be regarded as being required to be applied concurrently. If just one of them, whether optical, acoustic or spatial, is capable of ensuring that the requirements stemming from the first sentence of Article 19(1) of the directive are fully complied with, it is open to Member States not to require the combined use of those means. (see paras 34, 37, 39, 40, operative part 1) 2. Article 23(2) of Directive 2010/13 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services (Audiovisual Media Services Directive) must be interpreted as meaning that sponsorship signs shown in programmes other than the sponsored programme must be included in the maximum time for the broadcasting of advertising per clock hour, set in Article 23(1) of that directive. It may be deduced from Article 1(1)(h) and (k) and Article 10(1) of that directive, taken together, that, since a sponsor’s involvement consists exclusively in contributing to the financing of a service or programme, the symbols, references or other distinctive signs relating to sponsorship must be strictly linked to the service or programme financed or partly financed by that sponsor. For that reason, those symbols, references or other distinctive signs must be placed at the beginning, at the end or during the sponsored programme and, therefore, not outside it. Compliance with this obligation is necessary in particular in the interest of consumers as television viewers, in order to enable the latter to understand clearly that a programme is the subject of a sponsorship agreement and to prevent circumvention of the maximum time for the broadcasting of television advertising spots per clock hour, set in Article 23(1) of the Audiovisual Media Services Directive. (see paras 41, 47-49, 51, operative part 2) 3. Article 23(1) of Directive 2010/13 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services (Audiovisual Media Services Directive) must be interpreted, where a Member State has not made use of the power to lay down a stricter rule than that established by that article, as not only not precluding ‘black seconds’ which are inserted between the various spots of a television advertising break or between that break and the television programme which follows it from being included in the maximum time for the broadcasting of television advertising per clock hour which that article sets at 20%, but also as requiring their inclusion. Article 23(1) of that directive places a ceiling on the time for the broadcasting of television advertising spots and teleshopping spots per clock hour in order to ensure proper achievement of the fundamental objective of the directive, consisting in protecting consumers as television viewers from excessive broadcasting of television advertising. Accordingly, that provision does not permit the Member States to reduce, in favour of advertising, the minimum air time that must be devoted to the broadcasting of programmes or of other editorial content below 80% within a given clock hour. Where a Member State has not placed a ceiling on the time for broadcasting television advertising at a stricter level than that set in Article 23(1) of the Audiovisual Media Services Directive, regard would not be had to the intention of the EU legislature if those ‘black seconds’ were not regarded as television advertising broadcasting time for the purposes of that provision. That would have the effect of reducing the clock time reserved for the broadcasting of programmes and other editorial content by a period corresponding to that of the ‘black seconds’ and to below the limit which that provision guarantees by implication. (see paras 59-62, operative part 3)