Opinion of the Advocate General — ECLI:EU:C:1999:328
Date: 1999-06-24
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Competition;Agreements, decisions and concerted practices;Right of establishment;Free movement of goods;Measures having equivalent effect;Principles, objectives and tasks of the Treaties;Quantitative restrictions;Freedom to provide services
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary of the Judgment 
1. Freedom to provide services — Television broadcasting — Directive 89/552 — 
Television advertising — Number of advertising slots to be allowed during the 
broadcasting of audiovisual works — Method of calculation — Duration of adver­
tisements to be taken into account 
(Council Directive 89/552, Art. 11(3)) 
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SUMMARY — CASE C-6/98 
2. Freedom to provide services — Television broadcasting — Directive 89/552 — Option 
available to Member States to derogate from the rules on advertising — Number of 
advertising slots to be allowed during the broadcasting of audiovisual works — 
Method of calculation taking no account of the duration of advertisements — Whether 
permissible — Conditions 
(EC Treaty, Arts 5 and 85 (now Arts 10 EC and 81 EC) and Arts 6 and 30 (now, after 
amendment, Arts 12 EC and 28 EC); Council Directive 89/552, Arts 3(1) and 11(3)) 
1. A provision which imposes a restric­
tion, in the matter of the provision of 
services, on an activity involving the 
exercise of a fundamental freedom such 
as the freedom to provide television 
broadcasting services must express that 
restriction in clear terms. It follows 
that, when a provision 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 televi­
sion broadcasting activities, as amen­
ded by Directive 97/36, imposes a 
restriction on broadcasting and on the 
distribution of television broadcasting 
services, and the Community legisla­
ture has not drafted that provision in 
clear and unequivocal terms, it must be 
given a restrictive interpretation. 
Since Article 11(3) of Directive 
89/552 — the wording of which is 
ambiguous — imposes a restriction as 
regards the possibility of interrupting 
the transmission of audiovisual works 
to allow advertising, that restriction 
must be interpreted in the strictest 
possible sense. It is common ground 
that the gross principle (under which 
the duration of advertisements is inclu­
ded in the period of time taken into 
consideration for determining the num­
ber of advertising interruptions 
allowed) allows a greater number of 
interruptions for advertising than the 
net principle (under which only the 
duration of the works themselves is 
included). It follows that Article 11(3) 
of Directive 89/552 is to be construed 
as prescribing the gross principle, 
which means that, in order to calculate 
the 45-minute period for the purpose of 
determining the number of advertising 
slots authorised in the broadcasting of 
audiovisual works, such as feature 
films and films made for television, 
the duration of the advertisements 
must be included in that period. 
2. Article 11(3), in conjunction with Arti­
cle 3(1), of Directive 89/552 on the 
coordination of certain provisions laid 
down by law, regulation or adminis­
trative action in Member States con­
cerning the pursuit of television broad­
casting activities, as amended by Direc­
tive 97/36, authorises Member States 
to prescribe, for television broadcasters 
under their jurisdiction, the net princi­
ple for advertisements which may be 
inserted during programmes, and thus 
to provide that, in order to calculate 
the 45-minute period for the purpose of 
determining the number of advertising 
slots authorised in the broadcasting of 
audiovisual works, such as feature 
films and films made for television, 
the duration of the advertisements 
must be excluded, on condition, how-
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ARD V PRO SIEBEN MEDIA 
ever, that those rules are compatible 
with other relevant provisions of Com­
munity law. 
In that connection, Article 5 of the 
Treaty (now Article 10 EC), Articles 6 
and 30 of the Treaty (now, after 
amendment, Articles 12 EC and 
28 EC), Article 85 of the Treaty (now 
Article 81 EC) and the general princi­
ple of equal treatment do not apply to 
national legislation which prescribes 
the application of the net principle for 
television broadcasters under their jur­
isdiction. Secondly, Article 59 of the 
Treaty (now, after amendment, Arti­
cle 49 EC) does not preclude a Mem­
ber State from prescribing, under Arti­
cle 3(1) of Directive 89/552, applica­
tion of the net principle. 
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