Opinion of the Advocate General — ECLI:EU:C:2004:141
Date: 2004-03-11
Language of the case: French
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Freedom to provide services
Procedure: Action for failure to fulfil obligations - unfounded;Reference for a preliminary ruling
Origin: France

Summary of the Judgment Freedom to provide services – Restrictions – Prohibition on the advertising of alcoholic beverages during the television broadcast of sporting events – Justified on the grounds of public health (EC Treaty, Arts 56(1) and 59 (now, after amendment, Arts 46(1) EC and 49 EC)) By making television broadcasting in a Member State by French television channels of sporting events taking place in other Member States conditional on the prior removal of advertising for alcoholic beverages, the Member State concerned has not failed to fulfil its obligations under Article 59 of the EC Treaty (now, after amendment, Article 49 EC). It is true that such rules on television advertising constitute a restriction on freedom to provide services within the meaning of Article 59 of the Treaty. They entail a restriction on freedom to provide advertising services in so far as the owners of the advertising hoardings must refuse, as a preventive measure, any advertising for alcoholic beverages if the sporting event is likely to be retransmitted in the Member State concerned. They also impede the provision of broadcasting services for television programmes, since broadcasters in that Member State must refuse all retransmission of sporting events in which hoardings bearing advertising for alcoholic beverages marketed in that State may be visible, and the organisers of sporting events taking place abroad cannot sell the retransmission rights to those broadcasters if the transmission of the television programmes of such events is likely to contain indirect television advertising for those alcoholic beverages. However, such rules on television advertising pursue an objective relating to the protection of public health within the meaning of Article 56(1) of the Treaty (now, after amendment, Article 46(1) EC) since the measures restricting the advertising of alcoholic beverages in order to combat alcohol abuse reflect public health concerns. Furthermore, such rules are appropriate to ensure that aim and they do not go beyond what is necessary to achieve such an objective. They limit the situations in which hoardings advertising alcoholic beverages may be seen on television and are therefore likely to restrict the broadcasting of such advertising, thus reducing the occasions on which television viewers might be encouraged to consume alcoholic beverages. (see paras 26, 30-31)