62002CC0262_EN
Opinion of the Advocate-General
Opinion of the Advocate-General
1. In Case C‑262/02, brought by the Commission of the European Communities under Article 226 EC, the Court is asked to rule whether the French legislation prohibiting on national territory the televising of sporting events taking place in other Member States if hoardings displayed at those events promote alcoholic beverages, the television advertising of which is prohibited in France, is compatible with Article 49 EC.
2. The same legislation is the subject of two questions submitted by the Cour de cassation (Court of Cassation) (France), by order of 19 November 2001, to the Court of Justice for a preliminary ruling in Case C‑429/02. In particular, in that case the French court seeks to ascertain whether the legislation of a Member State, such as the French legislation cited above, is compatible with Directive 89/552 and with Article 49 EC.
3. As can be seen, the two cases relate to the same national law and present characteristics that coincide to a very large extent. It is therefore appropriate to deal with them jointly.
I –  Legal background
A –
Community law
4. So far as concerns Community law, as is well known, Article 49 EC guarantees the freedom to provide services within the Community.
5. Regard should also be given to Article 46 EC, which is applicable to the freedom to provide services within the meaning of Article 55 EC; that article enables the applicability of provisions laid down by law, regulation or administrative action by the Member States which, while limiting that freedom, are justified on grounds of public policy, public security or public health.
Directive 89/552
6. Case C‑429/02 also concerns Council Directive No 89/552/EEC of 3 October 1989 (the ‘Television Without Frontiers directive’, hereinafter ‘Directive 89/552’). (2)
7. In order to ensure freedom of transmission in television broadcasting within the Community, Directive 89/552 coordinates some fields of television activities, laying down minimum rules with which broadcasts emanating from and intended for reception within the Community must comply (13th and 14th recitals).
8. Furthermore, to achieve that objective, the directive requires the Member States first to ensure that television broadcasters under their jurisdiction comply with the provisions of the directive (Article 3(2)) and secondly to ensure freedom of reception and not to restrict retransmission on their territory of television broadcasts from other Member States for reasons which fall within the fields coordinated by the directive (Article 2(2)).
9. The fields coordinated by the directive include that of ‘television advertising’, for which it lays down provisions defining the basic concepts involved and regulating the methods, limits and times of transmission of that form of advertising.
10. In so far as relevant here, I would recall that Article 1(b) and (c) provide that:
‘(b) “television advertising” means any form of announcement broadcast in return for payment or for similar consideration by a public or private undertaking in connection with a trade, business, craft or profession in order to promote the supply of goods or services, including immovable property, or rights and obligations, in return for payment. ...
(c) “surreptitious advertising” means the representation in words or pictures of goods, services, the name, the trade mark or the activities of a producer of goods or a provider of services in programmes when such representation is intended by the broadcaster to serve advertising and might mislead the public as to its nature. Such representation is considered to be intentional in particular if it is done in return for payment or for similar consideration’.
11. Article 10 lays down that:
‘1. Television advertising shall be readily recognisable as such and kept quite separate from other parts of the programme service by optical and/or acoustic means.
...
4. Surreptitious advertising shall be prohibited’.
12. Article 11 provides that:
‘1. Advertisements shall be inserted between programmes. Provided the conditions contained in paragraphs 2 to 5 of this Article are fulfilled, advertisements may also be inserted during programmes in such a way that the integrity and value of the programme, taking into account natural breaks in and the duration and nature of the programme, and the rights of the rights holders are not prejudiced.
2. In programmes consisting of autonomous parts, or in sports programmes and similarly structured events and performances comprising intervals, advertisements shall only be inserted between the parts or in the intervals.
...’
13. Finally, Article 15 lays down certain specific criteria with which television advertising for alcoholic beverages must comply.
14. Lastly, it should be noted that Directive 89/552 was amended by Directive 97/36 (3) subsequent to the facts at issue and is not applicable in the present case.
B –
National law
(a) The Loi Evin
15. As regards national legislation, I would first recall French provisions on the television advertising of alcoholic beverages, beginning with Law 91-32 of 10 January 1991 on the campaign against tobacco and alcohol addiction (4) (hereinafter ‘the Loi Evin’), which amended Article L. 17 of the Code des débits de boissons (Code of Licensed Premises, hereinafter ‘the CDB’). (5)
16. The Loi Evin is based on the principle that all forms of advertising for alcoholic beverages (that is to say beverages with an alcohol content of more than 1.2°) are prohibited unless expressly authorised. In accordance with that principle, the television advertising of alcoholic beverages is therefore prohibited as it is not expressly authorised by Article L. 17 of the CDB.
17. That prohibition is expressly confirmed by Article 8 of Decree 92-280 of 27 March 1992 on advertising and sponsorship in television, (6) which provides as follows:
‘The advertising, first, of products whose advertising on television is prohibited by law and, secondly, of the following products and economic sectors:
beverages with an alcohol content of more than 1.2° ...
is prohibited’.
18. Any infringement of the Loi Evin constitutes a ‘délit’ under French criminal law.
Article L. 21 of the CDB provides that:
‘Infringements of the provisions of Articles L. 17, L. 18, L. 19 and L. 20 shall be punishable by a fine of FRF 500 000. The maximum fine may be increased by 50% of the sum spent on illegal advertising.
In the event of repeated offences, the court may prohibit the sale of the illegally advertised alcoholic beverage for a period of between one and five years.’
(b) The measures adopted by the CSA
19. Furthermore, an important supervisory role has been entrusted to the Conseil supérieur de l’audiovisuel (Authority for the Audiovisual Sector, hereinafter the ‘CSA’), which may impose administrative penalties on French broadcasters that fail to comply with the Loi Evin.
20. While performing that role, the CSA discovered that hoardings advertising alcoholic beverages were being shown during the televising in France of certain sporting events held abroad (7) and judged that this form of television advertising contravened the Loi Evin. Accordingly, it warned some French broadcasters to comply with the law, to the extent of bringing a criminal complaint for infringement. (8)
21. The CSA then drew up a Code of Conduct to publicise the interpretation it intended to give to the provisions of the Loi Evin with regard to the broadcasting of sporting events at which advertising for alcoholic beverages was displayed (for example, hoardings positioned around the pitch). (9)
22. The Code, which bars all forms of discrimination between French and foreign alcoholic beverages, calls upon advertisers, agents, sporting federations and television broadcasters to exercise the maximum vigilance against similar advertising being shown during sporting events held abroad. In such cases, the broadcasters transmitting the images of the events in France must not be lenient with regard to advertising displayed at the venue of the event, by not acquiescing to the placing of advertisements and avoiding as far as possible their being filmed.
23. That general rule is then further qualified by drawing a distinction between ‘international events’ and ‘other events taking place abroad’.
In the case of ‘international events’, the images of which are broadcast in a large number of countries and can therefore not be considered to be aimed primarily at the French public, the broadcasters cannot be accused of leniency when transmitting images, the filming of which they do not control, even if the advertising appears on the screen. ‘Other events’, the broadcasting of which is considered to be aimed specifically at the French public, are treated differently, however. Here, if the legislation of the host country authorises the advertising of alcoholic beverages at the venue of the competition, the parties negotiating with the holders of television rights must use ‘all available means’ to prevent the advertising of alcoholic beverages from appearing in France and must notify their foreign counterparts of the legislation applying there.
(c) The amendments to the Code of Conduct
24. Although not relevant for the purposes of the decision in the present case, it should be noted that the Code of Conduct has been amended several times since 1999. Principally, an annex was added listing ‘binational events’ (previously termed ‘other events’). The list, which is subject to periodic review, comprised: friendly matches; qualifying matches; Inter-toto Cup football matches; and the early rounds (those preceding the fourth round) of the UEFA Cup in football. It was also laid down that matches on the list could nevertheless be classed as ‘international events’ if one of the teams or athletes participating in the competition was ‘of special renown’. (10) Lastly, French broadcasters were enabled to ask the CSA for an opinion on the ‘international’ or ‘binational’ status of the sporting event to be broadcast.
25. The case‑file shows that further amendments to the Code of Conduct were made in 2000 and 2001. In particular, the list of ‘binational events’ was reduced; (11) the procedure for consulting the CSA was extended and clarified, with all interested parties being given the right to ask that body about the conditions for applying the Code and to receive a reply within a maximum of three weeks; and finally the Code was widely disseminated by publication in the Bulletin officiel du Ministère de la jeunesse et des sports, in the periodic ‘CSA newsletter’ and on the CSA’s website.
II –  Facts and procedure
Case C‑262/02
26. Since 1995 the Commission has received numerous complaints from individuals reporting the difficulties that the Loi Evin caused for the transmission in France of sporting events held in other Member States and for the purchasing, by producers of alcoholic beverages, of space on advertising hoardings at the venues of such events.
27. As a result of those complaints, the Commission served formal notice on France on 21 August 1995. This was followed on 21 November 1996 by a reasoned opinion in which the Commission accused France of infringing Article 59 of the EC Treaty (now Article 49 EC).
28. As it was not satisfied by the reply from France or by the amendments made to the Code of Conduct after service of the reasoned opinion, the Commission lodged an application on 16 July 2002 asking the Court to declare that, ‘by making the televised broadcasting in France by French television channels of sporting events taking place in the territory of other Member States conditional upon the prior withdrawal of publicity promoting alcoholic beverages, the French Republic has failed to fulfil its obligations under Article 49 EC’.
29. By order of 3 December 2002, the Court granted the United Kingdom leave to intervene in the case in support of the Commission in accordance with Article 93(1) of the Rules of Procedure.
Case C‑429/02
30. The facts at the origin of the main proceedings involve four companies: Bacardi France SAS (hereinafter ‘Bacardi’), Télévision Française TF1 SA (hereinafter ‘TF1’), Groupe Jean-Claude Darmon SA (hereinafter ‘Darmon’) and Girosport SARL (hereinafter ‘Girosport’).
Bacardi is a French company that produces and markets alcoholic beverages; TF1 is a French television broadcaster;
Darmon and Girosport are two companies governed by French law whose activity consists in the negotiation of television rights for sporting events.
31. The documents before the Court show that in order to comply with the Code of Conduct drawn up by the CSA, TF1 warned Darmon and Girosport to ‘use every means necessary to prevent the brand names of alcoholic beverages from appearing on television when purchasing the transmission rights [of sporting events] on behalf of TF1’. (12)
32. It also appears from the documents in the case that, in connection with sporting events taking place abroad and broadcast in France, some football clubs refused to place advertising for alcoholic beverages produced by Bacardi on the hoardings in the stadia.
33. Bacardi held that that refusal was due to pressure exerted on the foreign clubs by Darmon and Girosport at the request of TF1 and that such pressure was applied only when the advertising to be displayed concerned French beverages.
It therefore applied to the Tribunal de commerce (Commercial Court) de Paris for an order requiring the said companies to cease that discriminatory behaviour.
34. As that application was dismissed both in the court of first instance and upon appeal, Bacardi made an application to the Cour de cassation (Court of Cassation).
The latter, having doubts as to the compatibility of the French legislation with Directive 89/552 and Article 49 EC, submitted the following questions to the Court for a preliminary ruling under Article 234 EC:
‘1. Does Directive 89/552/EEC of 3 October 1989, termed the “Television Without Frontiers directive”, in the version prior to that of Directive 97/36/EC of 30 June 1997, preclude national legislation such as Articles L. 17 to L. 21 of the French Code des débits de boissons and Article 8 of Decree No 92-280 of 27 March 1992 from prohibiting, for reasons of the protection of public health and on pain of criminal penalties, advertising for alcoholic beverages, whether of national origin or from other Member States of the Union, on television, whether in the form of advertising spots within the meaning of Article 10 of the directive or of indirect advertising as a result of panels advertising alcoholic beverages appearing on television without thereby constituting surreptitious advertising within the meaning of Article 1(c) of the directive?
2. Must Article 49 EC and the principle of the free movement of television broadcasts within the Union be interpreted as precluding a national provision such as that in Articles L. 17 to L. 21 of the French Code des débits de boissons and Article 8 of Decree No 92-280 of 27 March 1992 which prohibits, for reasons of the protection of public health and on pain of criminal penalties, advertising for alcoholic beverages, whether of national origin or from other Member States of the Union, on television, whether in the form of advertising spots within the meaning of Article 10 of the directive or of indirect advertising as a result of panels advertising alcoholic beverages appearing on television without thereby constituting surreptitious advertising within the meaning of Article 1(c) of the directive, from having the effect that operators responsible for the broadcasting and distribution of television programmes:
(a) refrain from broadcasting television programmes, such as in particular retransmissions of sporting events, whether taking place in France or in other countries of the Union, where they show prohibited advertisements within the meaning of the French Code des débits de boissons, or
(b) broadcast them on condition that prohibited advertisements within the meaning of the French Code des débits de boissons do not appear, thereby preventing the conclusion of advertising contracts concerning alcoholic beverages, whether of national origin or from other Member States of the Union?’
35. Bacardi, TF1, the French and United Kingdom Governments and the Commission submitted written observations in the proceedings thus instituted.
36. A joint hearing was held for this case and for Case C‑262/02 on 25 November 2003, which was attended by Bacardi, the French and United Kingdom Governments and the Commission.
III – Legal assessment
Introduction
37. As I have already indicated, the central questions in the two cases coincide to a large extent.
I shall therefore examine them together; but first I must make a number of remarks with regard to the questions submitted for a preliminary ruling in Case C‑429/02.
38. As has been stated, in that case two questions have been submitted to the Court, asking whether Directive 89/552 and Article 49 EC preclude a law, such as the French law, which prohibits the advertising of alcoholic beverages on television either directly in the form of advertising spots or indirectly as a result of the filming of advertising hoardings displayed during sporting events.
39. In my opinion, the wording of these questions calls for comment.
40. First, I must make clear that in order to provide a useful reply to the court of reference the assessment by the Court of Justice cannot be confined to Articles L. 17 to L. 21 of the CDB and Article 8 of Decree 92‑280, which are explicitly mentioned by the national court, but must also of necessity extend to the measures taken by the CSA to implement those provisions. In particular, consideration must be given to the Code of Conduct drawn up by that authority, which, as has been stated and as can be deduced from the documents of the case, requires the parties negotiating the purchase of television rights to sporting events that are to take place abroad but will not be broadcast ‘in a large number of countries’ and which concern ‘specifically French viewers’ (so‑called ‘other events’) to use every ‘means available’ to prevent advertisements for alcoholic beverages shown during such events from appearing in France.
41. Indeed, the conduct giving rise to the dispute in the main proceedings, namely that of TF1, Darmon and Girosport, and which is contested by Bacardi, is the result of the desire of those parties to conform to the practice embodied in the interpretation and application of Articles L. 17 to L. 21 of the CDB and Article 8 of Decree 92-280. I therefore believe that that practice – the relevance of which for the interpretation of the said articles is essentially acknowledged by the court making the reference and which is the main subject of the Commission’s complaints in Case C‑262/02 – must be taken into account when assessing the two questions from the national court. Furthermore, a reply from the Court that did not take that practice into account would ultimately become a mere advisory opinion unconnected with the reality of the dispute in the main proceedings and thus in clear contradiction with the function of the preliminary reference procedure. (13)
42. Secondly, I consider that in assessing that legislation the Court should concentrate on evaluating whether the prohibition of the indirect advertising of alcoholic beverages as a result of the televising of hoardings displayed during sporting events is compatible with Community law. As I have already said, the main proceedings turn on whether the conduct adopted by TF1, Darmon and Girosport in order to comply with that prohibition was lawful. On the other hand, the prohibition of direct television advertising, which is also a provision of the French law, is of no relevance in those proceedings. It therefore seems to me that a reply from the Court on the compatibility of the latter prohibition with Community law is not necessary for resolving the dispute in the main proceedings.
43. For those reasons I therefore consider that the questions submitted by the Cour de cassation should be understood as requiring the Court of Justice to assess whether Directive 89/552 and Article 49 EC preclude legislation of a Member State, such as the French legislation, which prohibits the television broadcasting on national territory of sporting events taking place in other Member States but which are not broadcast in a large number of countries but which specifically concern, rather, the viewers of that State, where advertising hoardings displayed at the venue of such events to promote products (in this case alcoholic beverages) that may not be advertised on television in the first State are shown.
44. Read in this way, the second question in Case C‑429/02 and the application in the infringement proceedings brought by the Commission in Case C‑262/02 end up by coinciding, because in both instances it is necessary to establish whether the said legislation, as interpreted and applied by the CSA, is compatible with Article 49 EC.
45. This is clearly the central issue in the two cases and, I repeat, it is common to both. Before beginning to examine it, however, I must mention an aspect that arises only in the case concerning a reference for a preliminary ruling. What is required is a determination of whether the French legislation in question can right away be deemed unlawful on the ground of infringement of Directive 89/552.
Directive 89/552
46. I shall confine myself to only a few remarks on this matter, however, because I agree with all the parties to the proceedings for a preliminary ruling (with the sole exception of TF1), who argue that the directive is not applicable to the case in question in that the filming of advertising hoardings displayed during sporting events cannot be considered ‘television advertising’ and cannot therefore fall within the scope of the directive.
47. That conclusion can be deduced clearly, in my view, from Articles 1, 10 and 11 of the directive.
48. Article 1(b) defines ‘television advertising’ as ‘any form of announcement
broadcast in return for payment
or for similar consideration ... in order to promote the supply of goods or services ’. (14)
49. That provision thus refers to the sequence of television
images specifically intended as advertising, for which the television broadcaster receives payment . It does not, however, include other kinds of announcement, such as those exhibited on placards filmed during the transmission of a sporting event, for which the broadcasters receive no remuneration.
50. Articles 10 and 11 lay down that advertising ‘shall be ... kept quite separate from other parts of the programme service’ (Article 10(1)) and that in ‘programmes consisting of autonomous parts, or in sports programmes and similarly structured events and performances comprising intervals, [it] shall only be inserted between the parts or in the intervals’ (Article 11(2)).
51. As the United Kingdom and the Commission have rightly pointed out, only announcements intended to promote goods or services on television can meet the conditions for being inserted, in accordance with the directive, between the autonomous parts or in the intervals of sports programmes so that they are clearly separated from the programmes themselves.
52. In contrast, images of advertising hoardings shown during the televising of a sporting event because they are placed alongside the playing area on which the competition is being conducted necessarily
appear throughout the event without it being possible to separate them clearly from the images of the action on the field. It would therefore be illogical to consider that Directive 89/552 also governs that form of indirect advertising, which by its very nature cannot comply with the provisions of the directive.
53. I therefore conclude in this regard that Directive 89/552 does not preclude legislation of a Member State, such as the French legislation, which prohibits the television broadcasting on national territory of sporting events taking place in other Member States, where advertising hoardings displayed at the venue of such events to promote products (in this case alcoholic beverages) that may not be advertised on television in the first State are shown.
Article 49 EC
54. As I have already remarked several times, the infringement proceedings instituted by the Commission and the second question submitted by the Cour de cassation for a preliminary ruling raise the same issue.
Essentially the Court is asked to establish whether the French legislation, as interpreted and applied by the CSA, is compatible with Article 49 EC.
55. The Commission, the United Kingdom and Bacardi consider that the measures in question constitute a restriction on the provision of various cross-border services that is disproportionate in relation to the objectives of protecting public health and preventing evasion of the law.
France, by contrast, while acknowledging that the legislation under examination entails a restriction on the freedom to provide services, considers that it is justified on grounds of public health and complies with the principle of proportionality.
(1)	Restriction on the freedom to provide services
56. The first matter to settle is therefore whether the measures adopted by the CSA, and in particular the original version of the Code of Conduct, constitute a restriction on the freedom to provide services under Article 49 EC.
57. In truth, there appears to be no genuine difference between the parties in the two proceedings as regards the existence of such a restriction, as France does not, actually, contest the argument put forward by Bacardi, the Commission and the United Kingdom on this point.
58. In particular, it is not disputed that the measures taken by the CSA restrict the freedom to provide three different types of service across national borders: (i) the transmission by French broadcasters of ‘binational’ sporting events held abroad at which advertising for alcoholic beverages is present; (ii) the sale of the television rights by the organisers of such events to French broadcasters; and (iii) the sale by the operators of advertising hoardings displayed at such events of space to promote alcoholic beverages. In the infringement proceedings, the Commission also raised the possibility of a restriction on the sponsorship of teams taking part in ‘binational’ events (for example, through the display of the trademark of alcoholic beverages on the athletes’ jerseys). As the Commission itself has acknowledged, however, that objection was not contained in the reasoned opinion and cannot therefore be taken into account in Case C‑262/02. (15)
59. That being so, it also seems to me that the legislation in question, although imposing requirements solely on French persons, directly impedes access to the market in the services in question by both French operators and those from other Member States.
60. Indeed, as seen above, in the case of ‘other events’ the Code of Conduct requires the parties negotiating with the holders of television rights to use every ‘means available’ to prevent advertising for alcoholic beverages from appearing on French television screens.
61. It seems to me that the ‘means’ that the Code requires such persons to employ to achieve that outcome include an obligation not to purchase the television rights for the broadcasting of ‘other events’ if advertising for alcoholic beverages is not first removed.
There can be no doubt that such a ‘means’ is also among those ‘available’ to persons negotiating television rights.
62. If that is the case, it would be difficult to deny that the legislation in question constitutes an obstacle to access to the abovementioned services. Indeed, a request to remove the advertising in question may lead to one of the following two situations: if the organisers of the sporting event maintain the advertising, they will not be able to sell the television rights to the event and consequently it cannot be broadcast in France;
alternatively, if they have such advertising removed or prohibit its placing on the playing area, the operators of the advertising hoardings will not be able to sell the available space to the producers of alcoholic beverages and, thus, the latter will not be able to buy it. In either case, the conduct that the Code imposes on those negotiating television rights prevents several parties from offering or benefiting from one or more services ‘across Community frontiers’.
63. Furthermore, there is no merit in the argument that French broadcasters, rather than forgoing the transmission of ‘binational events’ owing to the presence of the advertising in question, could selectively obscure the placards advertising alcoholic beverages, thanks to modern image masking techniques. As the Commission has rightly maintained and as was admitted by France at the hearing, these are highly sophisticated techniques derived from missile guidance systems, which would be excessively costly for television broadcasters.
64. Neither can it be claimed that the national legislation under examination does not constitute a restriction prohibited under Article 49 EC on the ground stated by the court of reference that it concerns without distinction all alcoholic beverages and is applied to such beverages by ‘operators responsible for the broadcasting and distribution of television programmes’, irrespective of whether they are of ‘ national origin or from other Member States of the Union ’. (16)
65. It must be borne in mind that Article 49 EC prohibits not only discrimination based on nationality but also more generally any restriction on the freedom to provide services by persons established in another Member State. (17)
The rule therefore also precludes national provisions which, even if they apply without distinction, are capable of directly affecting access to the market in services in the other Member States. (18)
66. As I have just stated, this is precisely the situation in the present case.
67. I am therefore able to conclude on this point that the measures adopted by the CSA to implement the Loi Evin, requiring persons negotiating with the holders of television rights to ‘other events’ to employ every ‘available means’ to prevent advertising for alcoholic beverages from appearing in France constitutes a restriction on the freedom to provide services under Article 49 EC.
(2) The proportionality of the French legislation
68. That said, it is necessary to ascertain whether the abovementioned restriction can be justified in the light of the needs that Community law permits the Member States to safeguard in derogation from even the principle of the freedom of movement.
69. In this regard, I note first that all the parties involved in the two proceedings acknowledge the findings of the Court, according to which measures such as those under examination ‘restricting the advertising of alcoholic beverages in order to combat alcoholism’, despite constituting restrictions on the provision of services, ‘[reflect] public health concerns’ (19) and may therefore be justified by this ‘ground of general interest recognised by Article [46 EC], which is applicable to the provision of services in accordance with Article [55 EC]’. (20)
70. Nevertheless, again according to the case-law of the Court, national provisions authorised by Article 46 EC are lawful only on condition that they are not ‘disproportionate to the intended objective’. (21) Hence, while it is true that, in the absence of Community rules governing the advertising of alcoholic beverages in general, in this field too ‘it is for the Member States to decide on the degree of protection which they wish to afford to public health and on the way in which that protection is to be achieved’, it is equally true that they may do so only ‘within the limits set by the Treaty and must, in particular, comply with the principle of proportionality’, (22) which requires that the provisions adopted ‘must be appropriate for securing the attainment of the objective which they pursue and must not go beyond what is necessary in order to attain it’. (23)
71. The real crux of the infringement proceedings instituted by the Commission against France and of the reference for a preliminary ruling from the Cour de cassation is the very proportionality of the French legislation. In order to resolve both cases it is therefore necessary to establish whether that legislation (i) is appropriate for attaining the public health objective that it pursues and (ii) does not go beyond what is necessary to attain that objective.
(i) The appropriateness of the French legislation for attaining the public health objective pursued
72. According to the Commission and Bacardi, the French provisions in question are an inappropriate means of attaining the objective of protecting public health in that they are based on legislative choices and criteria that are inconsistent with that objective, for a number of reasons which I shall now examine individually.
73. Bacardi and the Commission identify a first inconsistency by comparing the rules on tobacco with those on alcoholic beverages.
In the case of tobacco French legislation imposes a general prohibition on advertising, except for Formula 1 races.
In that of alcoholic beverages, however, it permits various forms of advertising (for example in the printed press, on radio and on hoardings) but imposes a ban on television advertising which, under the Code of Conduct, is extended to the televising of hoardings advertising alcoholic beverages.
74. According to the Commission, if I understand correctly, there is inconsistency between the two in that a general prohibition, such as that laid down for tobacco, is limited by means of a derogation, whereas a partial prohibition, such as that for alcoholic beverages, is broadened by its extensive application to television broadcasts.
75. Bacardi and the Commission then find a second inconsistency in the fact that the Loi Evin permits advertising for alcoholic beverages consisting in the placing of advertising hoardings in sports stadia but prohibits the televising of such hoardings.
From this point of view as well, according to these parties, there is inconsistency in that on the one hand consent is granted for advertising such as that on advertising hoardings that can be seen for the entire duration of the event by anyone present, while on the other the appearance of these same hoardings on television is prohibited, although they are captured occasionally by the television cameras and are therefore visible to television viewers only for a few instants.
76. The French Government replies to these objections by maintaining that it took legislative policy decisions which, in keeping with the objective of protecting public health, graduate the prohibition on advertising according to the harmfulness of the product marketed and the impact of the advertising method used.
77. In particular, the French Government claims that there is no contradiction in establishing derogations for tobacco advertising that are not provided for alcohol, a product with a different degree of harmfulness for human health.
Moreover, according to the French Government, it is entirely logical to permit the advertising of alcoholic beverages on hoardings that will be seen only by persons physically present at the venues of sporting competitions but to ban the appearance of the same hoardings on television, given that this medium reaches a far larger number of people.
78. For my part, I have no difficulty in conceding that some decisions of the French legislature may indeed appear questionable.
There can be no doubt that to allow significant derogations from an advertising ban or to limit the appearance of images of advertising hoardings on television without prohibiting the placing of those hoardings in the stadia may reduce the effectiveness of the State’s action to protect public health.
79. I am nevertheless of the view that these decisions fall within the freedom of the Member States to ‘decide on the degree
of protection which they wish to afford to public health and on the way
in which that protection is to be achieved’, (24) and are therefore among the options available to Member States for attaining that objective.
By contrast, what falls outside the discretion of the Member States and thus within the purview of the Court is, as we have seen, the appropriateness and necessity of such decisions in relation to attainment of the declared objectives, given that only compliance with those conditions can justify the restrictions deriving from those decisions.
80. Accordingly, what must be ascertained is not which measures would be feasible and more effective in abstract terms but whether the actual measures
adopted by France in the exercise of its discretionary power to impede the televising of binational sporting events at which advertising for alcoholic beverages is displayed are appropriate for achieving the degree of protection of public health pursued by that State.
81. It seems to me that, even subject to the limitations I have indicated, the appropriateness of the measures cannot be denied.
The measures in question reduce the instances in which television viewers can see images of hoardings advertising alcoholic beverages, that is to say images displayed on pitches with the obvious aim of encouraging consumers to buy such products.
It is therefore reasonable to maintain that by limiting the opportunities for propagating the message those measures may also reduce the instances in which television viewers consume alcoholic beverages in response to the blandishments of advertising.
82. But the main objection of Bacardi and the Commission from the standpoint that is of interest here is really something other. It relates to the Code of Conduct, of which I have spoken above (paragraphs 19 to 23), and in particular to the distinction between ‘international events’ and ‘other events’, on which is based the prohibition on the broadcasting of sporting events taking place abroad.
83. According to Bacardi and the Commission, that distinction is not only imprecise but also contradictory.
They maintain that where there are hoardings advertising alcoholic beverages at the venues of sporting competitions it prohibits the broadcasting of ‘other events’, which have a smaller following among the French public, but not that of ‘international events’, which are more widely followed in France.
As a result, it introduces a less strict regime precisely for the broadcasting of events with a larger audience and which can therefore, thanks to the advertising, encourage a larger number of persons to consume alcohol.
84. In my opinion, however, that objection cannot be endorsed, for the reasons that I shall explain below.
85. First, after the introduction of the ban on the television advertising of alcoholic beverages under the Loi Evin, the CSA, which was entrusted with ensuring compliance, found that in some cases producers of alcoholic beverages had evaded the prohibition by purchasing advertising space on hoardings displayed during sporting events broadcast in France which, although taking place abroad, did not have a particularly high international profile but in reality were of specific interest to the French public.
86. As it considered that this conduct circumvented the prohibition on the television advertising of alcoholic beverages under the Loi Evin and hence undermined the objective of protecting public health pursued by that law, the CSA decided in 1995 to prohibit the transmission in France of ‘other events’ at which such advertising was present.
In this way it extended the prohibition to cover the transmission even of events that are not broadcast ‘in a large number of countries’ and concern ‘specifically the French public’, which in the past had been the subject of misconduct.
87. The logic underlying that decision appears to me to be even more obvious and consistent with the purpose of the French legislation if one considers that as ‘other events’ are aimed ‘specifically at the French public’, producers of alcoholic beverages and advertisers may, by choosing the product to promote and defining the message to display on the hoardings, arrange advertising at such events that is targeted at French television viewers, and for that reason more incisive and thus more harmful.
88. Furthermore, the effectiveness of the prohibition in question appears to be greater in the case of ‘other events’.
As these are broadcast in a small number of countries, their transmission to a large audience such as public French viewing is particularly important to the holders of television rights and advertising agencies, which will therefore agree more easily to comply with the ban.
89. I could also add that the distinction between ‘international events’ and ‘other events’ makes it easier to reconcile the objective of protecting public health with the principle of the freedom to provide services, because it reduces the number of instances in which it is forbidden for sporting events taking place abroad to be broadcast in France. As a result of that distinction the restriction is limited only to ‘other events’, which, as I have said, are not broadcast in a large number of countries and hold particular interest only for a French audience.
90. It is true that a general prohibition on the broadcasting of all sporting events would have been more effective in the campaign against alcoholism and consequently a more appropriate means of protecting public health.
It is clear, however, that this would have created a far greater obstacle to the provision of services than that caused by the legislation in question.
91. As to the argument that a general prohibition would have better ensured legal certainty, I would observe that legal certainty can also be safeguarded by means of a prohibition targeted on ‘other events’. These are identified on the basis of two precise criteria (the number of countries in which they are broadcast and their specific interest to French audiences), the combination of which, in my view, enables television broadcasters and other operators in the sector to distinguish clearly between the cases in which the transmission of the sporting event is prohibited and those in which it is permitted. (25)
92. I would add that French broadcasters, the parties primarily interested in the televising of sports meetings, can dispel any uncertainty about an event’s classification as international or binational by consulting the CSA, even informally.
All the more so as the latter, being the authority responsible for applying the Loi Evin and supervising the television sector in general, maintains frequent and regular contacts with broadcasters. (26)
93. I note, moreover, that the objection of Bacardi and the Commission about the greater legal certainty and hence greater Community ‘tolerability’ of a total prohibition reveals a paradox that runs through several aspects of the application and the observations submitted in the cases under examination. It emerges from that objection that the French measure in question should be held to be incompatible with the Treaty because it imposes too little restriction on the advertising of alcoholic beverages; whereas a total ban on advertising, despite impeding the freedom to provide services to a far greater extent, is paradoxically deemed compatible with Community law.
94. In order to refute the appropriateness of the French legislation as a means of attaining the objective of protecting public health, in the infringement proceedings the Commission lastly criticises the actual manner in which the CSA allegedly applied the Loi Evin and the Code of Conduct.
In the Commission’s opinion, by adopting the contested measures the CSA impeded the transmission in France of sporting events only when hoardings promoting alcoholic beverages marketed in France were on display at the competition venues.
If the CSA had wished to pursue consistently the objective of protecting public health, the Commission observes, it should have applied the prohibition if there were any advertising of alcoholic beverages, regardless of whether or not they were marketed in France.
95. The French Government rebuts the accusation of discriminatory application of the Code of Conduct, maintaining instead that the French legislation was applied without making any distinction between products marketed in France and in other Member States.
96. For my part, even leaving aside the peculiarity of an argument, which I have already dealt with, that once again criticises the French measures as insufficiently restrictive, I note that neither the Loi Evin nor the Code of Conduct limit the prohibition on the television advertising of alcoholic beverages to products marketed in France. Indeed, the former prohibits the advertising on television of all beverages with an alcohol content of more than 1.2º, while the latter explicitly requires ‘equal monitoring ... of all alcoholic beverages, whether French or of foreign origin’, specifying moreover that ‘French producers and advertisers may not be treated differently from their foreign competitors’.
97. Leaving that aside, I wish to observe that in its action the Commission has not even proved that the CSA applied the Loi Evin and the Code of Conduct only to the advertising of alcoholic beverages marketed in France.
Indeed, the documents in the case contain no certain evidence to support the assertion that the application of the principle of non-discrimination laid down in the Code ‘wavered, in the sense that primary consideration was given [only] to alcoholic beverages marketed in France’, (27) or was actually disregarded, permitting the appearance on French television of only ‘advertising for certain foreign brands of alcohol’. (28) On the contrary, the documents that the Commission itself annexed to the application (which partly relate to events subsequent to those contested in the reasoned opinion) show that on several occasions the French legislation impeded the sale of advertising space for all alcoholic beverages and was therefore also applied to beverages produced in other Member States. (29)
98. In concluding on this point, I therefore consider that the French legislation under examination is appropriate for attaining the objective of protecting public health that it pursues.
(ii) The necessity of the French legislation
99. In order to assess the proportionality of the French legislation in relation to its intended purpose of protecting public health, it must also be ascertained whether, as well as being appropriate, it does not go beyond what is necessary in order to attain that objective.
100. According to the Commission, this second requirement of the principle of proportionality is not met in the present case.
It contends that in order to prevent the periodic appearance of hoardings advertising alcoholic beverages on television the French legislation impedes the televising of the entire sporting event at which they are displayed.
101. Bacardi and the United Kingdom reach the same conclusion, although for different reasons.
They point out that the objective pursued by the legislation in question could be attained by means of less restrictive measures aimed at limiting the advertising content or warning the public of the harm caused by excessive alcohol consumption.
In addition, the United Kingdom objects that the French legislation at issue applies to all beverages with an alcohol content of more than 1.2º, regardless of their alcoholic strength, and that it impedes the broadcasting in France of advertising that already complies with the law of another Member State, thereby duplicating the controls already performed in that State.
102. In my opinion, such arguments cannot be accepted.
103. First, the Commission’s objection cannot be accepted; as I have already mentioned above, television broadcasters do not at present have the technical means selectively to obscure hoardings advertising spirits during filming.
Modern techniques for masking television images, which would permit this less restrictive solution, cannot be used by broadcasters on account of their excessive cost.
104. But the objections raised by Bacardi and the United Kingdom are not convincing either. France has – in my opinion, rightly – retorted that excessive consumption of alcoholic beverages is harmful to human health, regardless of their alcoholic strength, and that the type of advertising prohibited by the Code of Conduct (the televising of hoardings promoting alcoholic beverages) appears on screens unexpectedly and for only a few seconds, which means that it is not possible either to control the content of the advertising broadcast or to insert warnings about the dangers of excessive alcohol consumption at the same time as the advertising message.
105. As regards the risk of duplicating the control of advertising that is already compliant with the laws of another Member State, France rightly argues that either the Member State in which the sporting event is taking place prohibits the transmission of the images of advertising hoardings promoting alcoholic beverages, in which case the event can be broadcast in France without the need for controls, or no ban exists in that State, in which case the ban imposed by the French authorities will constitute the only control.
106. For my part, I would add that even if there were an overlap between the French legislation and the more permissive provisions of other Member States, the French legislation could not be considered disproportionate on that ground and hence incompatible with Community law.
Indeed, the Court has already made clear that ‘the fact that one Member State imposes less strict rules than another Member State does not mean that the latter’s rules are disproportionate’. (30) The French rules can therefore not be held to infringe the principle of proportionality solely because another Member State applies less strict provisions with regard to the advertising of alcoholic beverages.
107. I therefore feel able to conclude on this point that the French legislation under examination does not go beyond what is necessary in order to attain the objective of protecting public health which it pursues.
108. Lastly, I would observe that, since in my view the legislation under examination must be held to be justified by the objective of protecting public health and proportionate thereto, it is not necessary to determine whether that legislation is also justified by the overriding need to prevent evasion of the law, which was also raised by the parties in the course of the two proceedings.
109. In conclusion I consider that:
– in Case C‑429/02 the reply to the Cour de cassation must be that Directive 89/552 and Articles 46, 49 and 55 EC do not preclude legislation of a Member State, such as the French legislation, which prohibits the television broadcasting on national territory of sporting events taking place in other Member States but which are not broadcast in a large number of countries and which specifically concern national viewers, if advertising hoardings displayed at the venue of such events to promote products (in this case alcoholic beverages) that may not be advertised on television in the first State are shown;
– the Commission’s application in Case C‑262/02 must be dismissed.
IV – Costs in Case C‑262/02
110. Under Article 69(2) of the Rules of Procedure, in infringement proceedings the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since France applied for costs to be awarded against the Commission and the latter has been unsuccessful, it must be ordered to pay the costs.
111. Article 69(4) of the Rules of Procedure provides that the Member States that intervene in the proceedings are to bear their own costs. Consequently, the United Kingdom is to bear its own costs.
V – Conclusion
In the light of the foregoing conclusions, I propose that the Court should:
– rule in Case C‑429/02 that Directive 89/552 and Articles 46, 49 and 55 EC do not preclude legislation of a Member State, such as the French legislation, which prohibits the television broadcasting on national territory of sporting events taking place in another Member State but which are not broadcast in a large number of countries and which specifically concern the national public, if advertising hoardings displayed at the venue of such events to promote products (in this case alcoholic beverages) that may not be advertised on television in the first State are shown;
– in Case C-262/02:
(1) dismiss the Commission’s application;
(2) order the Commission to pay the costs;
(3) order the United Kingdom to bear its own costs.
(1) .
(2)  –	Council Directive 89/552/EEC of 3 October 1989 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities (OJ 1989 L 298, p. 23).
(3)  –	Directive 97/36/EC of the European Parliament and of the Council of 30 June 1997 amending Council Directive 89/552/EEC on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities (OJ 1997 L 202, p. 60).
(4)  –	JORF of 12 January 1991, p. 615.
(5)  –	This subsequently became Article L. 3323-2 of the Code de la santé publique (Public Health Code).
(6)  –	JORF of 28 March 1992, p. 4313.
(7)  –	For example, during a friendly match between France and the Netherlands on 18 January 1995 in Utrecht (the Netherlands) the CSA noted the presence of advertising for eight different brands of alcoholic beverage.
(8)  –	On 23 January 1995 the CSA brought a complaint under Article 40 of the French Code de procédure pénale (Code of Criminal Procedure) before the Procurateur de la République at the Tribunal de Grande Instance (Regional Court) Nanterre. As a result of that complaint, the French broadcaster TF1 decided not to broadcast the football match between Auxerre and Arsenal played on 2 March 1995. Similarly, France 2 cancelled the transmission of the rugby matches between Ireland and Scotland and between Ireland and Wales scheduled for 18 March 1995.
(9)  –	The Code of Conduct was published in the Bulletin officiel du Ministère de la jeunesse et des sports
of 31 March 1995.
(10)  –	In the version of the Code of Conduct notified to broadcasters on 9 October 1999, ‘special renown’ is defined as ‘the fame enjoyed by a national team, a club or a French or foreign athlete outside his or its country of origin’.
(11)  –	As a result of that amendment, the list comprises:
friendly matches, qualifying matches and the early rounds (those preceding the third round) of the UEFA Cup.
(12)  –	See the judgment of the Cour d’appel (Court of Appeal) de Paris of 27 May 1997, p. 3 (annex No 42 to Bacardi’s observations). That judgment states that ‘the sole purpose of the letter sent by TF1 to Mr Jean-Claude Darmon on 23 October 1995 with regard to second-round UEFA Cup matches not falling within the category of international events is to point out the French legislation’ (pp. 10 and 11).
(13)  –	In this regard I would point out that according to settled case-law ‘the justification for a preliminary reference, and hence for the jurisdiction of the Court, is not that it enables advisory opinions on general or hypothetical questions to be delivered ..., but rather that it is necessary for the effective resolution of a dispute’.
See, among many others, Joined Cases C‑422/93 to C‑424/93 Zabala Erasun and Others
[1995] ECR I‑1567, paragraph 29, and Case C‑314/96 Djabali
[1998] ECR I‑1149, paragraphs 17 to 20.
(14)  –	My italics.
(15)  –	In this regard I would point out that the Court has consistently held that, ‘the subject-matter of an application under Article [226 EC] is limited to that defined during the pre-litigation procedure provided for by that article. Consequently, the Commission’s reasoned opinion and the application must be based on the same arguments and submissions’. See Case 298/86 Commission
v Belgium
[1988] ECR 4343, paragraph 10.
(16)  –	My italics.
In this regard I note that the Cour de cassation thus appears to share the opinion expressed by the Cour d’appel in the judgment of 23 September 1997, in which Bacardi’s claims regarding discrimination against French products were held to be unfounded (Annex No 42 to Bacardi’s observations, pp. 10 and 11).
(17)  –	See Case C‑154/89 Commission
v France
[1991] ECR I‑659, paragraph 12; Case C‑180/89 Commission
v Italy
[1991] ECR I‑709, paragraph 15; Case C‑198/89 Commission
v Greece
[1991] ECR I‑727, paragraph 16; and Case C‑76/90 Säger
v Dennemeyer
[1991] ECR I‑4221, paragraph 12.
(18)  –	See Case C‑384/93 Alpine Investments [1995] ECR I‑1141, paragraph 38.
(19)  –	Case 152/78 Commission
v France
[1980] ECR 2299, paragraph 17, Joined Cases C‑1/90 and C‑176/90 Aragonesa de Publicidad Exterior and Publivía
[1991] ECR I‑4151, paragraph 15, and Case C‑405/98 Gourmet International Products
[2001] ECR I‑1795, paragraph 27.
(20)  –	Gourmet International Products, cited above, paragraph 40.
(21)  –	Case 352/85 Bond van Adverteerders and Others
[1988] ECR 2085, paragraph 36.
(22)  –	Aragonesa, cited above, paragraph 16.
(23)  –	Case C‑390/99 Canal Satélite Digital
[2002] ECR I‑607, paragraph 33. See also Joined Cases C‑369/96 and C‑376/96 Arblade and Others
[1999] ECR I‑8453, paragraph 35, and Case C‑58/98 Corsten
[2000] ECR I‑7919, paragraph 39.
(24)  –	Aragonesa, cited above, paragraph 16 (emphasis added).
(25)  –	In this regard I would point out that after service of the Commission’s reasoned opinion the distinction between ‘international events’ and ‘other events’ was made clearer. In addition, an annex was added to the Code listing the events in the latter category (see paragraphs 24 to 25 above).
(26)  –	In this regard I would also point out that after service of the Commission’s reasoned opinion the Code of Conduct was amended by allowing any interested party to ask the CSA about the conditions for applying the Code and entitling them to expect a reply within a maximum of three weeks (see paragraphs 24 to 25 above).
(27)  –	Paragraph 6 of the application.
(28)  –	Paragraph 9 of the application.
(29)  –	See the letter of 20 December 1999 from the European Confederation of Spirits Producers (annex No 9 to the application), informing the Commission that at the time of the match between AEK and Monaco on 23 November 1999 in the third round of the UEFA Cup one of the Confederation’s member companies was denied an opportunity to purchase advertising space on hoardings to promote ouzo because the Loi Evin prohibited the transmission in France of sporting events at which placards promoting alcoholic beverages were displayed. See also the statement made on 28 January 2000 by the Finance Director of Newcastle United Football Club in an English court (annex No 10 to the application) that ‘the French law poses a real problem for football clubs playing French clubs in UEFA Cup matches. It limits the clubs’ freedom to sell advertising space in their grounds. Indeed, CSI [the company selling broadcasting rights on behalf of the football clubs] advises English clubs not to accept advertising from spirits producers
for such matches so that they can maximise their receipts from television’ (emphasis added). This statement contradicts another document produced by the Commission (annex No 11 to the application) which asserts that ‘CSI has consistently advised the English clubs among its clients that, if they want to maximise the television receipts from their matches in European competitions, they must not ... accept offers from French spirits producers
for advertising in stadia during such matches’ (emphasis added).
(30)  –	See Alpine Investments, cited above, paragraph 51.