Judgment — ECLI:EU:C:2018:85
Date: 2018-02-21
Language of the case: German
Court formation: Ninth Chamber
Subject matter: Right of establishment;Freedom to provide services
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary — Judgment of the Court (Ninth Chamber), 21 February 2018 Freedom to provide services — Television broadcasting activities — Directive 2010/13 — Scope — Audiovisual media service — Concept — Channel available on YouTube for videos promoting new passenger cars — Single promotional video — Not included (European Parliament and Council Directive 2010/13, Art. 1(1)(a), (b) and (h)) Article 1(1)(a) of Directive 2010/13/EU of the European Parliament and of the Council of 10 March 2010 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services (the Audiovisual Media Services Directive) must be interpreted as meaning that the definition of ‘audiovisual media service’ covers neither a video channel, such as that at issue in the main proceedings, on which internet users can view short promotional videos for new passenger car models, nor a single video of that kind considered in isolation. In that regard, in the first place, the definition of ‘audiovisual media service’ in Article 1(1)(a)(i) of that directive specifies, inter alia, that it is a service which is under the editorial responsibility of a media service provider and the principal purpose of which is the provision of programmes, in order to inform, entertain or educate, to the general public. However, a promotional video channel on the YouTube internet service, such as that at issue in the main proceedings, cannot be regarded as having as its principal purpose the provision of programmes in order to inform, entertain or educate the general public. Without it being necessary to determine whether a promotional video constitutes a programme as referred to in Article 1(1)(a)(i) of Directive 2010/13 and defined in Article 1(1)(b), it is clear that the purpose of such a video is to promote, for purely commercial purposes, the product or service advertised. In the second place, the audiovisual media service referred to in Article 1(1)(a)(ii) of Directive 2010/13 consists of ‘audiovisual commercial communication’. ‘Audiovisual commercial communication’ is defined, in turn, in paragraph 1(h) of that article as ‘images with or without sound which are designed to promote, directly or indirectly, the goods, services or image of a natural or legal entity pursuing an economic activity. Such images accompany or are included in a programme in return for payment or for similar consideration or for self-promotional purposes. Forms of audiovisual commercial communication include, inter alia, television advertising, sponsorship, teleshopping and product placement’. However, a video such as that at issue in the main proceedings cannot be regarded as accompanying or being included in a programme in return for payment or for similar consideration or for self-promotional purposes. (see paras 19, 21, 22, 27, 28, 32, operative part)