Opinion of the Advocate General — ECLI:EU:C:2011:216
Date: 2011-04-07
Language of the case: Spanish
Subject matter: Right of establishment;Freedom to provide services
Procedure: Action for failure to fulfil obligations - successful
Origin: Spain

Summary of the Judgment Freedom to provide services – Television broadcasting activities – Directive 89/552 – Concept of ‘advertising spot’ (Council Directive 89/552, Art. 18(2)) A Member State has failed to fulfil its obligations under Article 3(2) of 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, as amended by Directive 97/36, where it tolerates a situation in which certain types of advertising, such as advertorials, telepromotion spots, sponsorship credits and micro-ads are broadcast on national television channels with a duration which exceeds the maximum limit of 20% of the transmission time within a clock hour, as laid down in Article 18(2) of that directive. Those types of advertising fall within the scope of the concept of advertising spots and are therefore subject to the restrictions on broadcasting time laid down in Article 18(2). Any type of television advertising broadcast between programmes or during breaks constitutes, as a general rule, an ‘advertising spot’ within the meaning of Directive 89/552, unless the type of advertising concerned is covered by another form of advertising expressly governed by that directive, as applies to, inter alia, ‘teleshopping’, or unless it requires, because of the way in which it is presented, a duration greater than that of advertising spots, on condition that an application of the restrictions prescribed in respect of advertising spots would, without valid justification, amount to disadvantaging the form of advertising concerned by comparison with advertising spots. Consequently, even if a specific type of advertising has inherently, that is to say, because of the way in which it is presented, a duration which is slightly longer than the usual duration of advertising spots, that fact alone is not sufficient reason for it to be classified as an ‘other form of advertising’ within the meaning of Article 18(1) of Directive 89/552. (see paras 52-53, 55-56, operative part)