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COMMISSION OF THE EUROPEAN COMMUNITIES 
Brussels, 24.10.1997 
COM(97) 523 final 
2nd Report from the Commission 
to the Council, the European Parliament 
and the Economic and Social Committee 
on the application of 
Directive 89/552/EEC 
"Television without frontiers" 

1. INTRODUCTION 3 
2. SUBJECT OF THE REPORT 4 
3. DEVELOPMENT OF THE TELEVISION MARKET IN EUROPE. 4 
4. APPLICATION OF THE DIRECTIVE 5 
4.1 Coordination between national authorities and the Commission 5 
4.2 Protection of minors: application of the special procedure laid down in 
Article 2(2) of the Directive 6 
4.3 Application of rules on advertising 8 
5. COURT OF JUSTICE CASE LAW 9 
5.1 General remarks 9 
5.2 Case C-412/93 "Leclerc-Siplec" 9 
5.3 Judgments by the Court of 10 September 1996 in Commission v United 
Kingdom and Commission v Belgium 10 
5.4 Cases C-14/96 "Paul Denuit" and C-56/96 "VT4" 13 
5.5 C-320/94 et al. "RTI" 15 
5.6 Cases C-34, C-35, C-36/95 "De Agostini" and "TV-Shop" 17 
6. CONCLUSIONS 20 
L INTRODUCTION 
Article 26 of Directive 89/552/EEC, "Television without frontiers", (the Directive)1 
provides that, no later than the end of the fifth year after the date of adoption of the 
Directive and every two years thereafter, the Commission must submit to the 
European Parliament, the Council and the Economic and Social Committee a report 
on the application of the Directive and, if necessary, make further proposals to adapt 
it to developments in the field of television broadcasting. 
In accordance with Article 4(3) of the Directive, there is a specific report on 
Articles 4 and 5 of the Directive.2 
In this communication, the Commission submits to the European Parliament, the 
Council and the Economic and Social Committee the second report on the 
application of the Directive. 
The first report, which covered the period up to the end of 1994, concluded that it 
was necessary to revise the Directive, in order to adapt it to developments in the 
European audiovisual field. The Commission therefore made a proposal to this end.3 
The main features of the system set up by the Directive, as well as the reasons 
justifying the proposal for revision, are set out in detail in the preamble to the 
proposal. These points and the aspects of the Directive's application which were 
addressed in the first report are not dealt with in this document. 
The proposal for amendment put forward by the Commission has been the subject of 
detailed discussions within the Community institutions over the last two years. The 
codecision procedure led to the adoption of European Parliament and Council 
Directive 97/36/EC amending Directive 89/552/EC on 19 June. The new Directive 
enters into force on the day of its publication in the Official Journal of the European 
Communities.4 
Directive 97/36/EC amends Article 26 of Directive 89/552/EEC to provide that the 
next report on the application of the Directive should be submitted no later than the 
end of the third year after the date of adoption of the Directive 
(i.e. 31 December 2000). 
In order to avoid any break in continuity, this report therefore covers the application 
of Directive 89/552/EEC for the period from January 1995 to the entry into force of 
the new Directive, a period of approximately 30 months. 
? 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 No L 298, 17.10.1989, 
p. 23). 
For 1991 and 1992: COM(94) 57 final, 3 March 1994; for 1993 and 1994: COM(96) 302 final, 15 July 1996. 
COM(95) 86 final, 31 May 1995. 
Ref. 
2. SUBJECT OF THE REPORT 
Although the legislation in several Member States does not yet fully comply with 
Directive 89/552/EEC,5 the practical application of the principles behind the 
Directive and consistent judgments by the Court of Justice have contributed a great 
deal to the gradual assertion of a genuine area of freedom for the changing European 
television industry. 
The principle of free movement, in the Member States of the Union, of television 
programmes of all kinds and with all kinds of broadcasting is now established, 
according to clearly defined legal requirements. 
This report describes and analyses the salient facts in the application of the Directive 
during the reference period. It also attempts to offer an overall view of the progress 
achieved in interpreting its standards, with special attention given to the decisions of 
the Court of Justice. In view of the fact that it covers what is basically a transition 
period and that a new Directive has just been adopted, this report does not attempt to 
analyse the impact of the application of the Directive in depth, but simply to present 
the main developments in the case law by putting them in context, i.e. a changing 
audiovisual industry. 
3. DEVELOPMENT OF THE TELEVISION MARKET IN EUROPE 
Apart from significant growth in the number of operators (Europe today has more 
than 250 television channels, of which two thirds are private channels, their number 
in the Community having practically doubled in six years6) and in resources 
generated in the television sector (total television revenue in the countries of the 
European Union in 1995 was estimated at $43.3 billion/ECU 38 billion - an increase 
of 14% on 19947), 1995 and 1996 saw the preparation and launch of digital 
television in Europe. 
At the beginning of 1997, there were about 330 digital services broadcast by 
satellite, as compared with about ten in January 1996.8 
This acceleration in the development of digital services has stimulated discussion in 
the Member States on the need to adapt the national legal framework to the 
5 Infringement proceedings against several Member States were opened or pursued in 1995 and 1996. 
6 ID ATE, "Marché mondial de l'audiovisuel et du cinéma - Industries et Marchés", November 1996, 
p. 114. 
7 ibid., p. 111. 
8 European Audiovisual Observatory, 1997 Statistical Yearbook, p. 162. 
requirements of the new services, and in certain cases certain measures have been 
decided and implemented.9 
The Commission assigns the greatest importance to the correct application of the 
principles of free movement and non-discrimination in this field. It would 
particularly stress the increased importance of a correct application of the so-called 
"home country controV principle (according to which broadcasters are subject only 
to the law of the country in which they have their principal place of business) in an 
audiovisual environment which - thanks to the proliferation of broadcasting 
capacities due to digital technology - favours the growth of transnational services. 
The Commission also recognised the specific problems of broadcasting in its 
Communication on services of general interest in Europe (COM(96)443 final of 
11 September 1996) and noted that the funding of public service broadcasting is the 
subject of a protocol in the draft Amsterdam Treaty that will be annexed to the EC 
Treaty. 
4. APPLICATION OF THE DIRECTIVE 
4.1 Coordination between national authorities and the Commission 
Application of the rules of the Directive is the responsibility of each 
Member State's national authorities responsible^ for regulating the 
audiovisual industry. Systematic contact with the national bodies has been 
maintained, particularly through the ad hoc Group of representatives of the 
Member States, set up within the Commission on the latter's initiative. 
The work of the Group, to which observers from the EFTA countries, the 
Central and Eastern European countries linked by association treaties to the 
Union, and the Council of Europe's secretariat were invited, led to 
information on the application of the Directive in the different countries 
being pooled and contributed to the interpretation of its provisions. 
Amongst other things, the Group considered the application of Articles 4 and 
5 (measures concerning the promotion of distribution and production of 
European television programmes), the rules applicable to new forms of 
advertising ("virtual advertising"), and work in progress in international 
bodies (Council of Europe, Organisation for Economic Cooperation and 
Development, World Trade Organisation, etc.) likely to have an impact on 
Community legislation in the audiovisual field. 
The Commission is particularly pleased with the administrative cooperation 
initiated with national governments, which has meant that the problems 
This is the case in the United Kingdom, where the Independent Television Commission has just 
awarded licences for the first digital multiplexes on terrestrial frequencies, in application of the 
Broadcasting Act 1996. 
connected with broadcasting activities in the Community could - be 
addressed. 
The work of the ad hoc Group has staked out a path for the future work of 
the "Contact Committee" which has just been set up by Directive 97/36/EC. 
Specifically, the Committee will have to (new Article 23a): 
a) facilitate the effective implementation by the Directive by organising 
regular consultations on all the practical problems arising from its 
application, in particular the application of Article 2, and on other topics on 
which discussions seem useful; 
b) give opinions - on its own initiative or at the request of the Commission -
on the application by the Member States of the provisions of the Directive; 
c) act as a forum for the exchange of views on topics to be addressed in the 
reports that the Member States must provide pursuant to Article 4(3), on 
their methods, on the mandate of the independent study referred to in 
Article 25a, on the assessment of offers relating to it and on this study itself; 
d) discuss the results of the regular consultations that the Commission holds 
with representatives of associations of broadcasters, producers, consumers, 
manufacturers, service providers, trade unions and the artistic community; 
e) facilitate the exchange of information between the Member States and the 
Commission on the situation and development of legislation in the field of 
television broadcasting, taking into account the audiovisual policy pursued 
by the Community and the relevant developments in the technical field; 
f) examine any development in the sector for which consultation would 
appear useful. 
4.2 Protection of minors: application of the special procedure laid down in 
Article 2(2) of the Directive 
As an exception from the general rule of freedom of reception and 
non-restriction of retransmission,10 Article 2(2) of the Directive allows the 
Member States - provided that they respect a special procedure and only in 
exceptional circumstances - to take measures against broadcasters under the 
jurisdiction of another Member State who "manifestly, seriously and 
gravely" infringe Article 22 of the Directive. This is designed to protect 
minors from programmes which could seriously impair their "physical, 
mental or moral development". 
The Member State concerned must notify the television broadcaster and the 
Commission in writing of the alleged infringements and the measures it 
intends to take if any such infringement occurs again. 
10 For an interpretation of this term, see COM(95) 86 final, p. 19. 
6-
Consultations must be undertaken. If they do not produce an amicable 
settlement within 15 days of the notification, and the alleged infringement 
persists, the receiving Member State may take unilateral provisional 
measures against the channel concerned. 
The Commission is to ensure that the measures taken should be compatible 
with Community law. If it decides that they are not, it may require the 
Member State to put an end to the measures in question as a matter of 
urgency. 
During the period in question, only one Member State (the United Kingdom) 
felt it was necessary to have recourse - three times - to this procedure. 
In the first two cases, the consultations did not produce a settlement and the 
British authorities considered it necessary to adopt a prohibition order 
against the channels under the jurisdiction of another Member State. 
Following contacts with the Member States concerned and after considering 
the effects of the measures communicated by the United Kingdom, the 
Commission considered in both cases that these measures were compatible 
with Community law. This judgment was largely based on a test of 
proportionality and on an assessment of the possible discriminatory effects 
of the measures.11 
The third case notified to the Commission under Article 2(2) is, at the time 
of writing, under examination, in view of the fact that the authorities of the 
Member State that the offending programmes were emanating from have 
taken stringent measures to stop them, but that it seems they are still being 
broadcast from another country. 
The Commission considers the application of Article 2(2) in the reference 
period satisfactory. It has protected the general interest with a minimum of 
restriction on freedom to provide services. 
However, the Commission would stress that its assessment of the measures 
taken under Article 2(2) is based on factual and legal considerations; the 
moral assessment of the content of the programmes depends on the judgment 
of each Member State, which has the principal responsibility of authorising 
or prohibiting the transmission of certain television programmes by 
broadcasters under its jurisdiction who may be caught by Article 22. The 
possibility of a difference in judgment between the authorities of the 
originating country and those of the receiving country is anticipated by the 
Directive. 
Furthermore, the measures taken by the receiving Member State are without 
prejudice to those taken, if necessary, by the Member State which has 
ii See Commission opinions C(96) 3933 final in the "Rendez-Vous Télévision" case and C(95) 2678 final in the "XXXTV" case. 
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jurisdiction over the broadcaster in question. It is not, therefore, a question of 
transferring jurisdiction from one State to another, but of an exceptional 
possibility offered to the receiving Member State to take measures to protect 
its interest in situations of incontestable gravity, according to a precise 
procedure. 
It is also important to highlight the fact that, in the system of Community 
rules created by the Directive (Article 2(1)), Member States are not 
permitted to apply discriminatory moral criteria to the broadcasters under 
their jurisdiction: an stricter attitude to programmes to be received in their 
territory and a more lenient attitude to programmes destined to be broadcast 
abroad (typically, satellite channel programmes) would not be acceptable. 
On the contrary, the Member States are bound to ensure that all the 
broadcasters under their jurisdiction comply with Article 22. 
4.3 Application of rules on advertising 
The Directive lays down rules concerning the amount of advertising 
. permitted on screen (daily and hourly limits, Article 18), the number and 
form of advertising interruptions (Article 11), and rules applicable to the 
content and presentation of advertising messages (Articles 10, 12, 13, 14, 15 
and 16). Specific rules (Article 17) are applied to sponsorship. 
Several complaints concerning alleged failure to comply with the rules on 
advertising and sponsorship in certain Member States have been referred to 
the Commission. 
Certain problems, connected with the interpretation of the rules of the 
Directive, have been solved in judgments of the Court of Justice (see below, 
point 5.5 - "RTI case") or in the amendments made to the text by 
Directive 97/36/EC. The first case addressed problems related to showing 
the name and/or logo of the sponsor in sponsored programmes and 
telepromotions. The second case dealt with the new rules for teleshopping 
and self-promotion. 
In other cases, complaints - often coming from consumers' associations -
report that the quantitative thresholds are systematically exceeded. The 
problems particularly concern the practices of certain broadcasters in Spain, 
Portugal and Greece. The Commission is in the process of gathering the 
information it needs to assess the extent to which these alleged excesses 
could constitute infringements by the Member States concerned, with a view 
to taking the relevant corrective measures. 
The Commission would point out that each Member State has an obligation 
to ensure that all programmes transmitted by broadcasters under its 
jurisdiction respect the rules of the Directive and, more generally, the law 
applicable to programmes intended for an audience in that Member State. 
The Commission considers it an absolute priority to create a level playing 
field between operators established in the different Member States, along 
with a level of protection of the interests of television viewers in the" Union 
which is at least that of the Directive. It expects to equip itself with the 
means to increase its capacity for monitoring of complaints and for checking 
the implementation of Community law in this field. 
5. COURT OF JUSTICE CASE LA W 
5.1 General remarks 
The Court of Justice has given several judgments on the scope and 
interpretation of Directive 89/552. 
Most of the Court's judgments, whether in proceedings for failure to fulfil an 
obligation under Community law, on the Commission's initiative 
(Article 169 EC), or in a preliminary ruling case (Article 177 EC), mainly 
apply to the various aspects of the system of the division of competences 
between Member States for broadcasters in Europe, and especially to the 
criteria for legal jurisdiction. The specific topics that the Court has examined 
in its judgments to date are: the extent of the originating country's 
jurisdiction and the criteria for bringing broadcasters under the its legal 
system, the possibility for the Member States to adopt more stringent or 
more detailed rules to apply to broadcasters under their jurisdiction, and the 
powers of the receiving Member State in terms of programmes transmitted 
from other Member States. 
In general terms the interpretation given by the Court of Justice in the 
various cases coincides with the Commission's. It is also important to stress 
that the positions taken by the Court supplement and support the choices 
made by the community legislator in adopting the new Directive. Certain 
amendments made by the new Directive in fact aim to clarify the text in the 
light of the Court's rulings. Far from losing its importance after the 
amendments to the Television without frontiers Directive have been adopted, 
the case law of the Court shown here will therefore maintain its value as a 
reference for the national authorities, for the Commission and for the 
economic operators in the phases of transposai and application of the new 
Directive. 
5.2 Case C-412/93 Leclerc-Siplec 
The Leclerc-Siplec judgment of 9 February 1995 is the first case of judicial 
application of Directive 89/552/EEC. 
It concerned a complaint lodged by Leclerc-Siplec against the refusal of TF1 
and M6 to broadcast an advertisement concerning the distribution of fuel in 
Leclerc supermarkets, in accordance with French law. The matter was 
referred for a preliminary ruling to the Court, which ruled that Articles 30, 
85, 86 and 3f of the EC Treaty, and the provisions of the Directive, did not 
preclude the Member States from prohibiting the broadcasting of 
-9-
advertisements for the distribution sector by television broadcasters 
established on their territory. 
This judgment clarifies the relationship between Articles 3, 19 and 20 of the 
Directive. According to the Court, Article 19 simply clarifies a general 
freedom conferred on the Member States by Article 3(1), to lay down more 
detailed or stricter rules as regards television broadcasters under their 
jurisdiction. Article 20, on the other hand, allows them to lay down less strict 
rules than those in Article 11(2-5) and Article 18, for programmes which are 
intended only for the national territory and which may not be received, 
directly or indirectly, in one or more other Member States. 
The Court's interpretation gives the Member States, subject to compliance 
with the rules of the Treaty (which in this case were considered to have been 
complied with) and those of freedom of reception and retransmission of 
channels under the jurisdiction of other Member States, a broad margin for 
assessment of the interests which could justify stricter or more detailed 
measures than those in the Directive.12 
It should be noted that Directive 97/36/EC abrogates Article 19 of the 1989 
Directive. 
5.3 Judgments given by the Court on 10 September 1996 in Commission v 
United Kingdom and Commission v Belgium 
In two judgments given on 10 September 1996 (C-222/94, Commission v 
United Kingdom and C-11/95, Commission v Belgium) the Court had the 
opportunity to pursue a general reflection on the Directive. If we consider 
the two judgments together, we will be better able to assess their scope and 
their implications for the implementation of the Directive. 
They make a major contribution to the definition of the scope of the 
Directive, to the clarification of the concept of "jurisdiction", and to the 
application of the principle of the "place of establishment" of the 
intra-Community television broadcasters. 
12 The actual wording of the Court is as follows: 
"Directive 89/552, whose purpose is to ensure freedom to provide television broadcasting sen'ices 
conforming to the minimum rules it lays down and which to that end requires Member States from 
which broadcasts are made to ensure compliance with its provisions and Member States receiving 
broadcasts to ensure freedom of reception and retransmission, provides in Article 3(1) that 
Member States are to remain free, as regards broadcasters under their jurisdiction, to lay down more 
detailed or stricter rules in the areas covered by the directive. That freedom, which is conferred by a 
general provision of the directive and the exercise of which is not such as to jeopardise the freedom to 
provide broadcasting services conforming to its minimum rules which the directive seeks to ensure, is 
not restricted, in relation to advertising, to the circumstances set out in Articles 19 and 20. 
For that reason, on a proper construction the directive does not preclude Member States from 
prohibiting, by statute or by regulation, the broadcasting of advertisements for the distribution sector 
by television broadcasters established on their territory. " 
10 
In Case C-222/94 {Commission v United Kingdom), the Court gave a 
detailed interpretation of Article 2. The principal point at issue was the 
definition of the reasons for which a Member State must assert its 
jurisdiction over a given broadcasting organization. The importance of this 
clarification is clear, as existing disparities on this point between national 
bodies of legislation may lead (as they have done in certain cases) to 
negative or positive conflicts of jurisdiction, which could compromise the 
effective functioning of the system. As there is no specific provision in the 
Directive, the Commission has always recommended applying the principle 
of the place of establishment. 
The Court's interpretation of Article 2(1) leads to the conclusion that the 
concept of jurisdiction of a Member State, in the first subparagraph, must be 
understood as necessarily covering jurisdiction ratione personae over 
television broadcasters, which can be based only on the broadcaster's 
connection to that State's legal system. This last concept finds practical 
expression in the concept of establishment as used in the first paragraph of 
Article 59 of the EC Treaty. 
According to the Court, the divergence on this point between the Directive 
and the European Convention on Transfrontier Television (essentially based 
on the criterion of the place of the initial transmission or, in the case of 
satellite broadcasting, the place where the up-link is situated) must be 
considered as resulting from a deliberate choice by the community legislator, 
justified by differences in the nature and legal framework of the two texts. 
The adoption by a Member State of the EU of any criterion other than that of 
the place of establishment, and particularly that of the place of the initial 
transmission or the target audience, may lead that state to carry out a "double 
check" on broadcasters which already come under the jurisdiction of another 
Member State or, by contrast, to fail to ensure the application of its 
legislation to all the broadcasters which come under its jurisdiction. That is 
why certain parts of British law have been declared to be not in conformity 
with Articles 2 and 3(2) of the Directive.13 
13 The Court, in welcoming the arguments put forward by the Commission, considered that: 
"A Member State fails to comply with its obligations under Articles 2(1) and (2) and 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 if 
in order to determine the satellite broadcasters falling under its jurisdiction, it adopts criteria other 
than that of establishment, such as transmission or reception of programmes, which lead it to exercise 
control, prohibited by the Directive, over broadcasts falling under the jurisdiction of another Member 
State and, with regard to broadcasters which it considers to fall within Us jurisdiction, it applies to 
non-domestic satellite services a regime which is less stringent than that to which domestic satellite 
services are subject. 
The concept of jurisdiction of a Member State, used in the first indent of Article 2(1) of the Directive, 
must be understood as necessarily covering jurisdiction rationae personae over television 
broadcasters. This can be based only on those broadcasters ' connection to that State s legal system, 
- 11 -
The second judgment {Commission v Belgium) poses the basic question of 
the compatibility with Community law of a general system of conditional 
prior authorisation for the retransmission of television programmes coming 
under the jurisdiction of another Member State. 
The Commission considered that the need for prior authorisation granted by 
the authorities in the receiving country, on condition that the broadcasters 
met various conditions (such as, in the case of the French Community, the 
conclusion of agreements specifying cultural obligations with the Executive, 
which may in all cases be revoked), constituted a serious restriction on the 
retransmission of television broadcasts from other Member States, and that it 
contravened Article 2(2) of the Directive. 
The Belgian Government invoked several arguments to justify putting such a 
system in place. 
First, regarding the French Community's provisions regarding cable 
television, it alleged that cable retransmission did not come within the scope 
of the Directive. The Court, however, considered that the ninth and tenth 
recitals and Articles 1(a) and 2(2) led to the conclusion that the Directive 
did, effectively, concern cable retransmission of television programmes.14 
This point of view is also confirmed by the third, fifth and twelfth recitals of 
Directive 93/88/EEC (on the coordination of certain rules concerning 
copyright and rights related to copyright applicable to satellite broadcasting 
and cable retransmission), and by the European Convention on Transfrontier 
Television (recalled in the fourth recital of the Television without frontiers 
Directive), the scope of which unequivocally extends to cable transmission. 
The other arguments presented aimed to assert the right of the receiving 
Member States to exercise a certain form of control on televised programmes 
emanating from other Member States. Various reasons were given to justify 
this "secondary control". For example, the need to check whether a 
broadcaster has the right to enjoy the freedoms guaranteed by the Treaty and, 
if so, under the jurisdiction of which Member State; safeguarding pluralism 
in the media; protection of copyright; the need to ensure respect for public 
policy and morality. 
which in substance overlaps with the concept of establishment as used in the first paragraph of Article 
59 of the EC Treaty, the wording of which presupposes that the supplier and the recipient of a sei~vice 
are established in two different Member States. While a Member State may, under Article 3(1) of the 
Directive, lay down stricter rules in the areas covered by the Directive, the fact remains that, under 
Article 2(1), all broadcasts transmitted by broadcasters under the jurisdiction of that Member State or 
over which it is required to exercise jurisdiction pursuant to the second indent of Article 2(1) must 
comply with the law applicable to broadcasts intended for the public in that Member State. " 
14 The Court could not have been clearer: "Directive 89/552 ... must be interpreted as applying to the 
distribution of television programmes by cable. " 
- 12 
The Court clearly stated that, without prejudice to the special procedure laid 
down in Article 2(2) of the Directive in the case of infringements of 
Article 22, only the "Member State of establishment" (as defined in the 
United Kingdom case) is responsible for ensuring that its own laws are 
complied with by the broadcasters under its jurisdiction. If the receiving 
Member State considers that another Member State has not fulfilled its 
obligations under the Television without frontiers Directive, it can invoke 
the procedures provided for in Articles 169, 170 and 186 of the EC Treaty; 
The Court did not overlook the fact that, in certain cases (for example, in 
order to check whether transmissions emanate from another Member State, 
to safeguard pluralism, copyright or morality, public policy or public 
security), the receiving Member State could be justified in asserting its right 
to exercise a form of control, compatible with Community law, on the 
television programmes received on its territory. 
But it considered in this case that the Belgian Government had not shown 
that the protection of such interests was such as to justify a general system of 
prior authorisation for programmes emanating from other Member States, 
which involves a de facto abolition of the freedom to provide services.15 
5.4 Cases C-14/96 PaulDenuit and C-56/96 VT4 
The Court confirmed this case law in two recent judgments in preliminary 
rulings {Paul Denuit C-14/96 of 29 May 1997 and VT4 C-56/96 of 
5 June 1997) and took it further. 
15 The most relevant extracts from the judgment are the following: 
"Having regard to the system whereby Articles 2(1) and (2) and 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 divide obligations between 
the Member States from which programmes emanate and the Member States receiving them, that 
directive must be interpreted as meaning, first, that it is solely for the Member State from which 
television broadcasts emanate to monitor the application of the law of the originating Member State 
applying to such broadcasts and to ensure compliance with the directive and, second, that, save in the 
circumstances provided for in the second sentence of Article 2(2), the receiving Member State is not 
authorised to exercise its own control in that regard. 
Consequently, a Member State which 
- maintains a system of prior authorisation for the retransmission by cable of television broadcasts 
emanating from other Member States 
- maintains a system of express, conditional prior authorisation for the retransmission by cable of 
television broadcasts emanating from other Member States which contain commercial advertising or 
teleshopping programmes especially intended for viewers in that State 
acts in breach of its obligations under Article 2 of the Directive. 
Under no circumstances may a Member State unilaterally adopt, on its own authority, corrective or 
protective measures designed to obviate any breach by another Member State of the rules laid down 
by the Treaty. " 
13 
In Case C-14/96, the Belgian authorities (French Community) refused 
permission to the cable distributor Coditel Brabant to distribute programmes 
of a broadcaster under British jurisdiction (TNT/Cartoon) for the reason that 
it did not comply with the Directive, particularly those provisions relating to 
the promotion of European works (Articles 4 and 5). The Belgian courts 
overturned the Ministerial Decree of prohibition and a request for a 
preliminary ruling was introduced, on appeal, by the Tribunal de Commerce 
of Brussels. 
The Court had already partially answered the questions raised by the 
Tribunal de Commerce in its judgments of 10 September 1996, ruling on the 
point of law regarding the extent of the receiving State's power of control of 
a broadcaster coming under the jurisdiction of another Member State. It also 
ruled on the criterion for determining jurisdiction by using the criterion of 
establishment. 
In this case, the Belgian authorities also considered that TNT/Cartoon 
programmes did not come under the jurisdiction of a Member State within 
the meaning of Article 2(1) of the Television without frontiers Directive 
because they did not fulfil the requirements of Articles 4 and 5 (broadcasting 
quotas) and that, in fact, most of Turner's programming emanated from a 
country that was not a Member State of the European Community. The 
Court stated quite clearly that "a television broadcaster comes under the 
jurisdiction of the Member State+in which it is established. The origin of 
programmes broadcast by the television broadcaster or their conformity 
with Articles 4 and 5 of the Directive are irrelevant in determining the 
Member State having jurisdiction over such a broadcaster pursuant to 
Article 2(1). " 
Consequently, the fact that a broadcaster established in a Member State, and 
therefore under the real or supposed control of that State, broadcasts 
programmes of non-European origin in another Member State does not 
permit the State receiving those programmes to control their content, subject, 
of course, to the exception provided in the case of infringement of Article 
22. 
In Case C-56/96, the Belgian authorities (Flemish Community) refused to 
authorise the Flemish cable networks to distribute the programmes of VT4, a 
broadcaster established in the United Kingdom. Referring to the 
TV 10 judgment of 5 October 1994 (Case C-23/93), the Flemish Minister of 
Culture considered that VT4, whose activities were totally or principally 
aimed at the Flemish Community, was trying to circumvent the Flemish law. 
VT4, however, referred to Article 2 of the Directive, according to which the 
receiving State does not have the right to refuse access to its national cable 
network if the foreign broadcasting organisation is licensed by another 
Member State. Furthermore, VT4 rejected the argument based on the 
TV 10 judgment in so far as the "general interest" exception cannot be 
advanced to serve economic ends, such as protecting the national advertising 
market or protecting a national commercial television body from a 
monopoly. 
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The principal interest in this appeal lies primarily (as for the preceding 
preliminary ruling) in the fact that it is a concrete case of determination of 
jurisdiction (in this case the VT4 broadcasting organisation) which gives the 
Court an opportunity to clarify the concept of "establishment" (especially in 
the case of a broadcasting body being established in more than one 
Member State). 
In its judgment, the Court considers, first, that the fact that all 
VT4's programmes and advertising are exclusively intended for the Flemish 
public does not in itself show that VT4 cannot be considered as being 
established in the United Kingdom. Secondly, it confirms and clarifies its 
ruling in the Commission v United Kingdom case cited above by deciding 
that when a television broadcaster is established in a Member State, 
jurisdiction over it is exercised by the Member State in whose territory the 
broadcaster has the centre of its activities.16 Thus, even if all the programmes 
of a broadcaster from a Member State were conceived and intended 
exclusively for the public in another Member State, only the originating 
Member State may examine their compatibility with its national law 
(including the provisions transposing the Directive). 
We should also note here that all this case law confirms the Community 
legislature in the basic choices it made in adopting the provisions of 
Directive 97/36/EC amending Article 2(1) of the 1989 Directive, particularly 
regarding the setting up of an exhaustive system of criteria of jurisdiction 
based on the concept of establishment (even if the specific criteria 
enumerated in Article 2(3) of the amended Directive do not correspond 
exactly to those cited by the Court in the VT4 casé). 
5.5 C-320/94 et al. RTP7 
Giving judgment on 12 December 1996, the Court ruled on certain 
provisions of the Directive regarding advertising and sponsorship (Joined 
Cases C-320/94, C-328/94, C-329/94, C-337/94, C-338/94 and C-339/94 
Reti Televisive Italiane). 
16 The Court ruled that "Article 2(1) [of the Directive 89/552/EEC] is to be interpreted as meaning that a television 
broadcaster comes under the jurisdiction of the Member State in which it is established. If a television broadcaster 
is established in more than one Member State, the Member State having jurisdiction over it is the one in whose 
territory the broadcaster has the centre of its activities, in particular where decisions concerning programme 
policy are taken and the programmes to be broadcast are finally put together. " It should be noted that these 
specific criteria do not correspond exactly with those now laid down by Community law in Article 2(3) of 
Directive 97/36/EC, viz. the place of effective registered office, the place where decisions on programming are 
made and, in certain cases, the place where a significant proportion of the staff employed in broadcasting activities 
are employed. 
17 Judgment of the Court (Sixth Chamber) of 12 December 1996. Reti Televisive Italiane SpA (RTI) (C-320/94), 
Radio Torre (C-328/94), Rete A Sri (C-329/94), Vallau Italiana Promomarket Sri (C-337/94), Radio Italia Solo 
Musica Sri e.a. (C-338/94) and GETE Sri (C-339/94) v Ministero délie Poste e Telecommunicazioni. Joined Cases 
C-320/94, C-328/94, C-329/94, C-337/94, C-338/94 and C-339/94 [1996] ECR 1-6471. 
- 15 
The Regional Administrative Court for Lazio (Italy) had made several 
requests to the Court of Justice, under Article 177 of the EC Treaty, for 
preliminary rulings interpreting the Directive, notably regarding sponsorship 
and "telepromotions". 
Telepromotions are a common form of television advertising in Italy, based 
on the interruption of studio programmes (especially game shows) by slots 
devoted to the presentation of one or more products or services, where the 
programme presenters momentarily swap their role in the games in progress 
for one as "promoters" of the goods or services which are the object of the 
advertising presentation. 
The questions put by the Lazio Regional Administrative Court essentially 
concerned: 
1) the interpretation of Article 17(l)(b) of the Directive (may the 
indication of the name and/or logo of the sponsor be inserted at 
points other than the beginning and/or the end of the sponsored 
programme?) 
2) is Article 18 of the Directive, and particularly the concept of 
"forms of advertisements such as direct offers to the public" purely 
illustrative - thus potentially inclusive of telepromotions - or does 
it refer only to direct offers in the strict sense of the term? 
The Court gave its judgment on 12 December 1996, deciding that: 
1) Article 17(l)(b) of the Directive must be interpreted as meaning that it 
does not prohibit references to the name and/or logo of the sponsor at 
moments other than the beginning and/or end of the sponsored programme; 
2) Articles 1(b) and 18 of the Directive must be interpreted in the sense that 
the expression "forms of advertisements such as direct offers to the public", 
used in Article 18, is used by way of example. Consequently, other forms of 
advertising which share with teleshopping ("direct offers") the characteristic 
of lasting longer than spot advertisements (such as "telepromotions"), may 
be considered for the purposes of extending from 15% to 20% the daily limit 
of time devoted to television advertising. 
The Court also pointed out that this increase was an option left to the 
Member States, which can choose not to avail themselves of it.18 
The Court's arguments can be summed up as follows: 
Directive 89/552 on the pursuit of television broadcasting activities, and in particular, Articles 1(b) 
and 18 thereof, "must be interpreted as meaning that the expression forms of advertisements such as 
direct offers to the public' in Article 18 is used in the context of the Community rules, with regard to 
the possibility of increasing maximum advertising time to 20% of daily transmission time, by way of 
example. Consequently, it may also cover other forms of promotion, such as 'telepromotions' which, 
- 16-
Under the new Directive, incidentally, all forms of advertising are subject to 
a new daily maximum limit and the expression "forms of advertisements 
such as direct offers to the public" has been deleted. The daily limit of one 
hour of teleshopping (Article 18(3)) has also been deleted and replaced by 
new provisions tailored to both generalist channels and channels exclusively 
devoted to teleshopping. 
5.6 Cases C-34, C-35, C-36/95 De Agostini and TV-Shop 
In Joined Cases C-34, C-35 and C-36/95 {Konsumentombudsmannen v, 
respectively, De Agostini Svenska Fôrlad AB and TV-Shop I Sverige AB) 
advertising and teleshopping programmes received in Sweden were 
considered by the Konsumentombudsman (Consumer Ombudsman) to be 
unfair under the Trading Practices Act (Marknadsfbringslagen 1975:1418), 
either because they directly targeted children (Case C-34/95, Swedish law 
prohibits advertising programmes aimed at children under 12 years of age) 
or because for other reasons (particularly those connected with the clarity, 
precision and exhaustiveness of the advertisements) they were potentially 
harmful to consumers' interests. 
The court hearing the three cases (the Marknadsdomstol of Stockholm) 
decided to refer one question in each of them to the EFTA Court. Following 
like 'direct offers to the public ', require more time than spot advertisements on account of their 
method of presentation. " 
The reason why the Community law allowed for an increase in the transmission ceilings for direct 
offers to the public was that this form of sales promotion requires more air time than simple spot 
advertisements and not because these offers are programmes presenting products which can be 
ordered direct by telephone, post or videotext and which are intended to be delivered to the home of 
the television spectator, since the spectator's ordering of the products is an operation that is totally 
distinct from the televised presentation that the Directive is intended to govern. It is therefore normal 
that other forms of advertising, which also need more time than spot advertisements typically do, 
should benefit from the increase provided explicitly, but not exclusively, for direct offers to the public. 
But it is for each Member State, assuming that it intends to make use of the facility allowed by 
Article 18 for the television broadcasters under its jurisdiction to raise the transmission ceiling to 
20%, to decide, in accordance with the Treaty, whether this increase may benefit forms of advertising 
other than spot advertisements which, however, are not direct offers to the public. 
Directive 89/552 on the pursuit of television broadcasting activities, and in particular Article 17(l)(b) 
thereof, must be interpreted as not prohibiting the insertion of the sponsor's name or logo at times 
other than the beginning and/or end of a sponsored programme. 
However, regarding television broadcasters under their jurisdiction, the Member States may, pursuant 
to Article 3(1) of the Directive, lay down stricter rules on the subject, as long as they do not 
undermine the freedoms guaranteed by the Treaty, in particular the free provision of services and the 
free movement of goods. This interpretation does not affect the fact that the sponsored televised 
programmes must in no case incite to purchase or hire the products or services of the sponsors or any 
third party, in particular by making special promotional references to these products or services. 
-17-
Sweden's accession to the EC Treaty, the proceedings were transferred to-the 
Court of Justice in Luxembourg.19 
The Swedish court asked the Court of Justice to rule on the following 
questions: 
"Are Article 30 or Article 59 of the Treaty or Directive 89/552/EEC of 
3 October 1989 to be interpreted as: 
a) preventing a Member State from taking action against television 
advertisements which an advertiser has broadcast from another Member 
State (in the three cases); 
b) precluding application of Article 11(1) of the Radiolag prohibiting 
advertisements directed at children (in Case C-34/95)." 
The main subject of the case was therefore the application of the Swedish 
national law regarding misleading advertising and televised advertising 
aimed at children under 12 years of age in two cases where Swedish 
advertisers were transmitting their advertising messages to the Swedish 
public. In the three cases, the televised advertising in question was 
transmitted by a broadcaster under the jurisdiction of another Member State 
(TV3 - UK) and, at the same time, by broadcasters under Swedish 
jurisdiction (TV4 in Case C-34/95 and Homeshopping Channel in Cases C-
35/95 and C-36/95). 
The Court, in its judgment of 9 July 1997, first notes that fair trading and the 
protection of consumers in general are overriding requirements of general 
public importance which may justify - under certain conditions - obstacles to 
the free movement of goods and the free provision of services.20 
In the case of television advertising, the Television without frontiers 
Directive guarantees "a set of provisions specifically devoted to the 
protection of minors".21 Compliance with these provisions must be ensured 
by the broadcasting State alone.22 Consequently, the receiving State may no 
1 ^ The EFTA Court had already ruled on the Norwegian element of these cases on 16 June 1995 in the Joined Cases 
E-8/94 and E-9/94 concerning certain questions referred for a preliminary ruling to the EFTA Court by the Oslo 
"Markedsrâdet". The EFTA Court decided that Articles 2(2) and 16 of the Directive, as incorporated into the 
Agreement on the European Economic Area (EEA), must be interpreted as opposing a prohibition on an advertiser 
that would prevent him from broadcasting an advertisement within the framework of programmes televised by a 
broadcaster established in another EEA State, if this obstacle results from a general prohibition provided for in 
national law and affecting advertisements which are specifically targeted at minors. 
20 Paragraphs 46, p. 12, and 53, p. 13. 
21 Paragraph 57, p. 14. 
Paragraph 58, p. 14. 
- II 22 •>„ 
longer apply to programmes emanating from another Member State 
provisions specifically designed to control the content of television 
advertising with regard to minors.23 However, Article 3 of the Directive 
allows Member States to apply stricter rules to the broadcasters under their 
jurisdiction. 
The Directive is not, in principle, opposed to a Member State taking 
measures - in application of a general provision regarding the protection of 
consumers from misleading advertising - against an advertiser because of a 
televised advertisement broadcast from another Member State. These 
measures, however, may not .extend to preventing the retransmission on its 
territory of broadcasts coming from that other Member State.24 
More generally, the Court affirms that national measures prohibiting 
advertising aimed at children under 12 years of age and misleading 
advertising may have an impact on the freedom to provide services25 and 
could even - if it were demonstrated that these measures affected the 
marketing of national products and those from other Member States -
constitute a restriction on the free movement of goods.26 
In order to assess the compatibility of Swedish law with Articles 30 and 59 
of the EC Treaty in the case in question, the Court considered that it was for 
the national court to check whether the national provisions were actually 
necessary to meet overriding requirements of general public importance or 
one of the aims laid down in Articles 36 and 56 of the Treaty, whether they 
were proportionate for that purpose and whether the aims or overriding 
requirements could have been met by less restrictive means.27 
The Court therefore highlighted several general principles, and in particular 
that national measures having a restrictive effect on trade in goods or 
services must have a specific justification and must not go beyond what is 
necessary to achieve the aim pursued. 
In the case where the secondary Community law (in this case, the Television 
without frontiers Directive) provides for harmonisation measures in the field 
concerned and a distribution of powers between the Member States for the 
application of common rules, all the Member States must respect this 
division and must refrain from applying their rules to broadcasters under the 
competence of another Member State. 
23 Paragraphs 60 and 62, pp. 14 and 15. 
24 Paragraph 38, p. 11. 
2:3 Paragraph 50, p. 13. 
2" Paragraph 44, p. 12. 
2' Paragraphs 45, p. 12, and 52, p. 13. 
19 
With specific regard to the Directive, the Court thus ruled that it "does'not 
preclude a Member State from taking, pursuant to general legislation on 
protection of consumers against misleading advertising, measures against 
an advertiser in relation to television advertising broadcast from another 
Member State, provided that those measures do not prevent the 
retransmission, as such, in its territory of television broadcasts coming from 
that other Member State" As for advertising directed at children, the Court 
decided that "Directive 89/552 is to be interpreted as precluding the 
application to television broadcasts from other Member States of a provision 
of a domestic broadcasting law which provides that advertisements 
broadcast in commercial breaks on television must not be designed to attract 
the attention of children under 12 years of age". 
In other words, the Court makes a distinction between general legislation 
which is not covered by specific provisions in the Directive (i.e. protection 
of consumers against misleading advertising, which was already covered by 
Directive 84/450/EEC when Directive 89/552 was adopted) and a subject 
which has a "complete set" of measures in the Directive (viz. those 
specifically devoted to the protection of minors in respect of television 
programmes and advertising - see Articles 16 and 22). In the first case, the 
receiving State may take measures intended to protect consumers with regard 
to (national) advertisers but not introduce a second control on the television 
programmes broadcast with regard to (non-national) broadcasters, as these 
programmes must be controlled by the transmitting State. In the second case, 
the level of harmonisation attained is that considered sufficient by the Court 
for the Directive to prevent the receiving State from applying measures of 
protection of minors provided in a broadcasting law, whoever the operators 
concerned might be. In both cases, the Court once again confirms the 
principle of control of broadcasters by only the Member State under whose 
jurisdiction they come (the transmitting State, i.e. the State where the 
broadcaster is established). 
6. CONCLUSIONS 
During the reference period, the Court has provided a regular and abundant 
flow of case-law. The principles of the European audiovisual area28 -
freedom of movement on the basis of control by the country of origin, 
common rules for the protection of the general interest where necessary -
have been confirmed and applied. This case law will keep all its relevance as 
a reference for the operators, the national authorities and the Cohimission in 
the phases of transposition and application of the new Directive. In the 
digital broadcasting era, Europe is moving towards greater freedom of 
28 The setting up of this area was completed in the field of copyright and related rights by 
Directive 93/83/EEC, currently being transposed. The proposal for a Directive on the Legal Protection 
of Conditional Access Services, adopted by the Commission on 9 July 1997, has, in part, the same 
objective (COM(97) 356 final). 
20-
movement for televised programmes and advertising, and the Television 
without frontiers Directive is contributing to this by providing the necessary 
Community legal framework. 
21-

ISSN 0254-1475 
COM(97) 523 final 
DOCUMENTS 
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ISBN 92-78-25900-4 
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