Case C-429/02

Bacardi France SAS

v

Télévision française 1 SA (TF1) and Others

(Reference for a preliminary ruling from the Cour de cassation (France))

(Article 59 of the EC Treaty (now, after amendment, Article 49 EC) – Directive 89/552/EEC – Television without frontiers – Television broadcasting – Advertising – National measure prohibiting television advertising for alcoholic drinks marketed in that Member State, in the case of indirect television advertising arising from the appearance on screen of hoardings visible during the transmission of sporting events – Loi ‘Evin’)

Summary of the Judgment

1. Freedom to provide services – Television broadcasting activities – Directive 89/552 – Scope – Definition of television advertising – Rules on indirect television advertising arising from the appearance on screen of hoardings visible during the transmission of sporting events taking place in other Member States – Excluded

(Directive 89/552, Arts 1(b), 2(2), 10 and 11)

2. Freedom to provide services – Restrictions – Prohibition on the advertising of alcoholic beverages during the television broadcast of sporting events – Justified on the grounds of public health

(EC treaty, Arts 56(1) and 59 (now, after amendment, Arts 46(1) EC and 49 EC))

1. The first sentence of Article 2(2) of Council 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, which requires Member States 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 this directive, does not preclude a Member State from prohibiting television advertising for alcoholic beverages marketed in that State, in the case of indirect television advertising resulting from the appearance on screen of hoardings visible during the retransmission of bi-national sporting events taking place in the territory of other Member States.

That kind of indirect television advertising is not to be classed as ‘television advertising’ within the meaning of Articles 1(b), 10 and 11 of the directive, in so far as it does not constitute a separate announcement broadcast in order to promote goods or services.

(see paras 27, 29, operative part 1)

2. Article 59 of the Treaty (now, after amendment, Article 49 EC) does not preclude a Member State from prohibiting television advertising for alcoholic beverages marketed in that State, in the case of indirect television advertising resulting from the appearance on screen of hoardings visible during the retransmission of bi-national sporting events taking place in other Member States.

It is true that such rules on television advertising constitute a restriction on freedom to provide services within the meaning of Article 59 of the Treaty. They entail a restriction on freedom to provide advertising services in so far as the owners of the advertising hoardings must refuse, as a preventive measure, any advertising for alcoholic beverages if the sporting event is likely to be retransmitted in the Member State concerned. They also impede the provision of broadcasting services for television programmes, since broadcasters from that State must refuse all retransmission of sporting events in which hoardings bearing advertising for alcoholic beverages marketed in that State may be visible and the organisers of sporting events taking place abroad cannot sell the retransmission rights to those broadcasters if the transmission of the television programmes of such events is likely to contain indirect television advertising for those alcoholic beverages.

However, such rules on television advertising pursue an objective relating to the protection of public health within the meaning of Article 56(1) of the Treaty (now after amendment, Article 46(1) EC), since measures restricting the advertising of alcoholic beverages in order to combat alcohol abuse reflect public health concerns.

Furthermore, such rules are appropriate to ensure their aim of protecting public health. Furthermore, they do not go beyond what is necessary to achieve such an objective. They limit the situations in which hoardings advertising alcoholic beverages may be seen on television and are therefore likely to restrict the broadcasting of such advertising, thus reducing the occasions on which television viewers might be encouraged to consume alcoholic beverages.

(see paras 35, 37-38, 41, operative part 2)