OPINION OF ADVOCATE GENERAL

BOT

delivered on 7 April 2011 ( )

Case C‑281/09

European Commission

v

Kingdom of Spain

(Television broadcasting – Advertising spots – Transmission time)

1. The version of the ‘Television Without Frontiers’ Directive applicable in this case ( ) sets different limits for the transmission time of advertising messages depending on whether those messages are advertising spots or other forms of advertising.

2. The Directive thus provides that the transmission time of advertising spots and teleshopping spots must not exceed twelve minutes per clock hour. With respect to other forms of advertising, however, it sets only a daily limit, providing that their transmission time, when added to that of advertising spots, is not to exceed 15% of daily transmission time.

3. In the present action for failure to fulfil obligations, the European Commission accuses the Kingdom of Spain of having misapplied those provisions. It complains that that Member State has allowed new forms of television advertising, referred to as advertorials, telepromotions, sponsorship credits and micro-ads, to be broadcast beyond the 12 minutes per clock hour limit, even though, in the Commission’s opinion, they constitute ‘advertising spots’ within the meaning of the Directive.

4. The Kingdom of Spain disputes that analysis and submits that the four forms of advertising at issue fall within the concept not of ‘advertising spots’ but of ‘other forms of advertising’.

5. The Directive does not define those two terms.

6. In this Opinion, I shall ask the Court of Justice to find that the two concepts at issue must have a uniform and autonomous definition in the European Community and that, taking into account the scheme and objectives of the Directive, those definitions must make it possible to ensure that advertising at peak-viewing times is effectively restricted as intended by the hourly limit.

7. I shall also explain why, in my view, the concept ‘other forms of advertising’ must be interpreted not as meaning particular forms of advertising which require longer transmission time for technical reasons, as the Commission maintains, but on the basis of the forms of advertising referred to in the Directive, and that it should therefore refer only to sponsorship credits.

8. I shall submit that, in any event, the interpretation of that concept applied by the Kingdom of Spain to the four forms of advertising at issue deprives the hourly limit laid down in the Directive of its effectiveness.

9. I shall therefore propose that the Court declare this action for failure to fulfil obligations well founded.

I – Legal context

A – The Directive

10. The Directive seeks to coordinate the laws of the Member States in the field of television in order to ensure the free movement of television broadcasts in the Community. ( )

11. To that end it sets certain minimum rules and standards for television advertising in order to protect consumers. ( ) Those rules seek in particular to reconcile the freedom to produce television advertising, which is an essential source of revenue for commercial television channels, with an adequate level of protection for audiovisual works and for viewers against excessive broadcasting of advertising. ( )

12. The Directive begins by defining a number of the terms used in its legislative provisions, such as ‘television advertising’, ‘sponsorship’ and ‘teleshopping’.

13. Thus, ‘television advertising’ is defined in Article 1(c) of the Directive as ‘any form of announcement broadcast whether in return for payment or for similar consideration or broadcast for self-promotional purposes 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, rights and obligations, in return for payment’.

14. Pursuant to Article 1(e) of the Directive, ‘sponsorship’ refers to ‘any contribution made by a public or private undertaking not engaged in television broadcasting activities or in the production of audio-visual works, to the financing of television programmes with a view to promoting its name, its trade mark, its image, its activities or its products’.

15. Pursuant to Article 1(f) of the Directive, ‘teleshopping’ means ‘direct offers broadcast to the public with a view to the supply of goods or services, including immovable property, rights and obligations, in return for payment’.

16. Under Article 10 of the Directive, television advertising and teleshopping must be readily recognisable as such and kept quite separate from other parts of the programme service by optical and/or acoustic means. They are not to use subliminal techniques. Isolated advertising and teleshopping spots are to remain the exception.

17. Article 17(1)(c) of the Directive provides that sponsored television programmes ‘must not encourage the purchase or rental of the products or services of the sponsor or a third party, in particular by making special promotional references to those products or services’.

18. Article 18 of the Directive, which is at the heart of the present case, lays down the maximum transmission times for advertising.

19. The wording of that article has changed with the different versions of the ‘Television without frontiers’ Directive.

20. In the initial version of Directive 89/552, Article 18 read as follows:

‘1. The amount of advertising shall not exceed 15% of the daily transmission time. However, this percentage may be increased to 20% to include forms of advertisements such as direct offers to the public for the sale, purchase or rental of products or for the provision of services, provided the amount of spot advertising does not exceed 15%.

2. The amount of spot advertising within a given one-hour period shall not exceed 20%.

3. Without prejudice to the provisions of paragraph 1, forms of advertisements such as direct offers to the public for the sale, purchase or rental of products or for the provision of services shall not exceed one hour per day’.

21. In the version applicable to the present case, which, it should be recalled, is the result of the amendments made by Directive 97/36, Article 18 is worded as follows:

‘1. The proportion of transmission time devoted to teleshopping spots, advertising spots and other forms of advertising, with the exception of teleshopping windows within the meaning of Article 18a, shall not exceed 20% of the daily transmission time. The transmission time for advertising spots shall not exceed 15% of the daily transmission time.

2. The proportion of advertising spots and teleshopping spots within a given clock hour shall not exceed 20%.

3. For the purposes of this Article, advertising does not include:

– announcements made by the broadcaster in connection with its own programmes and ancillary products directly derived from those programmes;

– public service announcements and charity appeals broadcast free of charge’.

22. Directive 97/36 also introduced Article 18a, which is worded as follows:

‘1. Windows devoted to teleshopping broadcast by a channel not exclusively devoted to teleshopping shall be of a minimum uninterrupted duration of 15 minutes.

2. The maximum number of windows per day shall be eight. Their overall duration shall not exceed three hours per day. They must be clearly identified as teleshopping windows by optical and acoustic means’.

23. Articles 18 and 18a of the Directive were amended by Directive 2007/65/EC of the European Parliament and the Council, ( ) which is not applicable in this case. In their new version, those articles are now worded as follows:

‘Article 18

‘1. The proportion of television advertising spots and teleshopping spots within a given clock hour shall not exceed 20%.

2. Paragraph 1 shall not apply to announcements made by the broadcaster in connection with its own programmes and ancillary products directly derived from those programmes, sponsorship announcements and product placements.

Article 18a

Teleshopping windows shall be clearly identified as such by optical and acoustic means and shall be of a minimum uninterrupted duration of 15 minutes’.

24. Finally, reference should be made to Article 3(2) of the Directive, which provides that ‘Member States shall, by appropriate means, ensure, within the framework of their legislation, that television broadcasters under their jurisdiction effectively comply with the provisions of this Directive’.

II – Facts, procedure and forms of order sought by the parties

25. The Commission asked Audimetrie, an independent consultancy specialising in research and data analysis relating to the television advertising market, to undertake a study of the programme schedules of a number of major Spanish channels over a reference period running from 1 May to 30 June 2005.

26. In the light of the results of that study and following an exchange of letters with the Spanish authorities, the Commission sent those authorities a letter of formal notice dated 11 July 2007, and then a reasoned opinion on 8 May 2008.

27. It brought the present action by document of 17 July 2009 in which it claimed that the Court should:

– declare that, by tolerating flagrant, repeated and serious infringements of the rules laid down in Article 18(2) of the directive, the Kingdom of Spain has failed to fulfil its obligations under Article 3(2) of that directive, read in conjunction with Article 10 EC; and

– order the Kingdom of Spain to pay the costs.

28. The Kingdom of Spain and the United Kingdom of Great Britain and Northern Ireland, which intervened in support of the defendant Member State, contend that this action should be dismissed.

29. The Kingdom of Spain also contends that the Commission should be ordered to pay the costs.

III – The arguments of the parties

A – The arguments of the Commission

30. In its action for failure to fulfil obligations, the Commission refers to four forms of advertising transmitted on Spanish television channels, that is to say advertorials, telepromotions, sponsorship credits and micro-ads.

31. It submits that, in the light of the definitions of ‘spot advertising’ and ‘other forms of advertising’ given by the Court in the judgment in RTI and Others, ( ) which relates to Article 18 of Directive 89/552, each of those forms of advertising constitutes an advertising spot.

32. The Commission points out that ‘spot advertisements’ are defined as ‘forms of promotion usually lasting a very short time, having a very strong suggestive impact, generally appearing in groups at varying intervals during or between programmes and produced either by those who supply the products or services or by their agents, rather than by the broadcasters themselves’. ( )

33. It also points out that the Court of Justice held that ‘the option introduced by the second sentence of Article 18(1) of raising the percentage of transmission time for advertising to 20% of the daily total may also be used for forms of publicity which, whilst not constituting “offers to the public”, nevertheless, like them and because of the way in which they are presented, require more time than spot advertisements’. ( )

34. The Commission argues that, in the light of those definitions, any form of advertising transmitted between programmes or during breaks which is not presented in such a way as to require a significantly longer transmission time must be considered to be an advertising spot and is therefore subject to the hourly limit laid down in Article 18(2) of the Directive. The Commission takes the view that a particular form of advertising can therefore be regarded as ‘[an]other form of advertising’ within the meaning of Article 18(1) of the Directive only if it is presented in such a way as to require more time owing to unavoidable technical constraints.

35. The Commission submits that, in the light of those considerations, the four forms of advertising at issue must be regarded as constituting advertising spots, for the following reasons.

36. Advertorials are defined as advertising messages which are longer than spots and generally have a story line, informative or descriptive. They are also stock products capable of being retransmitted, although they are not normally rebroadcast because of their special length and story line. ( )

37. The Commission points out that the examples given in the Audimetrie study show that such advertorials, like advertising spots, are transmitted between programmes or during breaks and their frequency of transmission is identical to that of spots.

38. With respect to telepromotion spots, the Commission concedes that, in the judgment in RTI and Others, telepromotions, that is to say ‘a form of television advertising 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’, ( ) were held not to constitute advertising spots.

39. The Commission makes it clear, however, that its action is concerned with telepromotion spots, that is to say messages transmitted between programmes, which are independent of those programmes, of short duration and capable of being retransmitted.

40. With respect to sponsorship credits, the Commission bases its action on their definition in the criteria for the interpretation of the Spanish legislation, according to which these are a particular type of spot, known as a ‘euroclaqueta’, in which a programme’s sponsorship is announced at the same time as the sponsor’s advertisement is shown.

41. The Commission points out that, under Article 17 of the Directive, classification as sponsorship is subject to the condition that the message must not contain any encouragement to purchase the products or services of the sponsor.

42. Finally, with respect to micro-ads, the Commission also relies on their definition in the criteria for the interpretation of the Spanish legislation, according to which ‘micro-slots containing advertising messages are considered to be “another form of advertising” if they last for more than 60 seconds and they do not consist simply of a combination of spots with a vague common thread’.

43. The Commission argues that, unlike true telepromotions, micro‑slots are not presented in such a way as to require more time than conventional spots.

44. Consequently, the Commission submits, the Kingdom of Spain has failed to fulfil its obligations since it is clear from the Audimetrie report and the legislation of that Member State that those four forms of advertising are transmitted on Spanish television channels for as much as 17 minutes per hour, which is 50% more than the maximum 12 minutes per clock hour laid down in the Directive.

B – The arguments of the Kingdom of Spain

45. The Kingdom of Spain points out that the Directive does not define the terms ‘advertising spots’ and ‘other forms of advertising’. In its contention, those two terms must be distinguished on the basis of the following criteria:

– The form or presentation of the advertising message: its aesthetic or visual appearance, the combination of audiovisual elements with other exclusively graphic elements (crawls, overlays) or sound elements (voice-off), the use of actors and scenography from particular programmes;

– Duration: advertorials or micro-ads are longer;

– Their place in the programme schedule: whether or not linked to other programmes; and

– The content of the message: depending on the extent of the encouragement to buy or sell, which may be very great (as with spots), or less so because the descriptive aspect is predominant (advertorials), or because the message is confined to the visual presentation of the product or service advertised (a mere mask for institutional sponsorship).

46. The Kingdom of Spain also states that the term ‘advertising spots’ must be defined in accordance with the principle established in the judgment in ARD, ( ) according to which, ‘when a provision of Directive 89/552 imposes a restriction on broadcasting and on the distribution of television broadcasting services, and the Community legislature has not drafted that provision in clear and unequivocal terms, it must be given a restrictive interpretation’. ( )

47. According to that Member State, account must also be taken of the objective of the Directive, which is to strike a balance between the financing needs of television operators, their right of free enterprise and respect for their editorial independence, on the one hand, and the protection of the interests of consumers, as viewers, against excessive advertising, on the other hand.

48. That, it maintains, is the reason why its legislation lays down an hourly limit of 12 minutes for advertising spots and teleshopping spots and 17 minutes for other forms of advertising.

49. The Kingdom of Spain submits that the four forms of advertising at issue do not fall within the scope of the concept ‘advertising spots’ because of their standard length, the fact that they are less commercially aggressive, in the sense of the extent of their suggestiveness towards the consumer, and, finally, the extent to which they disturb the enjoyment of programmes.

50. It states that none of those forms of advertising is transmitted as frequently as conventional advertising spots because of the specific characteristics of each of them, be it their long duration (with the exception of sponsorship credits, it is inconceivable that the other forms of advertising would be transmitted more than once in the same block of advertising), their particular link with a given programme (as in the case of sponsorship credits and some telepromotion announcements) or their nature as informative programmes (micro‑ads).

51. The Kingdom of Spain argues that the four forms of advertising at issue are characterised by the special or exceptional nature of their transmission, which, combined with a further factor, such as the fact that the programme format varies depending on the television operator in question, or even the fact that each television channel produces its own advertising in certain spots, means that they can be distinguished from advertising spots.

C – The arguments of the United Kingdom

52. The United Kingdom maintains that the interpretation proposed by the Commission is not consistent with the Directive because it fails to respect the fundamental differences established by the Directive between advertising spots and other forms of advertising, in particular sponsorship and messages transmitted by the broadcaster in connection with its own programmes, which are referred to in Article 18(3) of the Directive.

53. According to that Member State, the fact that a sponsorship credit promotes certain products or services of the sponsor does not mean that it is an advertising spot.

54. Likewise, the Commission’s approach, according to which the broadcaster’s announcements should fall within the meaning of advertising spots simply because they promote its services, would deprive the exclusion contained in Article 18(3) of the Directive of all effect.

IV – My assessment

55. I share the Commission’s view that the four forms of advertising at issue must be classified as advertising spots within the meaning of the Directive. However, while I come to the same conclusion as the Commission, I do not subscribe to its definition of ‘other forms of advertising’. My assessment is based on the following grounds.

56. This dispute revolves around whether the four forms of advertising at issue are to be classified as advertising spots, as the Commission submits, or whether they fall into the category of other forms of advertising, as the Kingdom of Spain claims. The resolution of this dispute will determine whether the transmission of the four forms of advertising in question is subject to the hourly limit of twelve minutes per clock hour or only to the limit of 15% of daily transmission time.

57. The nub of the dispute is therefore very clear. It is the right of television broadcasters to transmit these new forms of advertising at peak viewing hours for more than the twelve minutes laid down in Article 18(2) of the Directive with respect to the transmission of advertising spots and teleshopping spots.

58. Its resolution calls for an examination of the meaning of the concepts ‘advertising spots’ and ‘other forms of advertising’ contained in Article 18(1) and (2) of the Directive.

59. Those two concepts are not easy to define. As the parties have pointed out, they are not defined in the Directive, which also makes no reference in their regard to the laws of the Member States.

60. It is true, as the Commission has submitted, that the explanatory memorandum which accompanied its proposal for a directive ( ) stated that ‘the reference to “other forms of advertising” (than slots) was introduced … so that it will cover new forms of advertising, such as telepromotion and “Dauerwerbesendungen”, which are longer and actually constitute part of the programme itself, as and when they emerge’. ( )

61. However, that first proposal was modified by the Commission following the amendments made by the European Parliament, which wished to remove the possibility of allowing additional transmission time for other forms of advertising. ( )

62. In its amended proposal for a directive, ( ) the Commission simply says that its new version of Article 18 incorporates changes deriving in part from the Parliament’s amendments, but that it thought it neither desirable nor possible to exclude forms of advertising other than advertising spots. ( )

63. In the light of the foregoing considerations, I therefore find it difficult to accept that the preparatory work for the directive makes it possible to give a precise meaning to the concept ‘other forms of advertising’ and to say with certainty that this was the meaning intended by the Community legislature in Article 18(1) of the Directive.

64. According to case-law, the meaning and scope of the concepts ‘advertising spots’ and ‘other forms of advertising’ must therefore be determined in the light of the context of the provisions in which they appear and the objectives pursued by those provisions, so as to ensure that those concepts are given an autonomous and uniform interpretation throughout the Community. ( )

65. The Kingdom of Spain submits that, in the absence of a precise definition in the Directive, the concepts in question should be understood in a manner favourable to the transmission of the advertising.

66. It is true, as that Member State points out, that, in ARD, the Court held that the provisions of the Directive which impose a restriction on the broadcasting of television advertising must, if not drafted in clear and unequivocal terms, be given a restrictive interpretation. ( )

67. Similarly, the Commission’s argument that the concept ‘other forms of advertising’ as used in the Directive was defined in RTI and Others, may appear to be open to challenge.

68. After all, in that judgment, the Court’s ruling related to the expression ‘forms of advertisements such as direct offers to the public’ as used in Article 18(1) of Directive 89/552. The wording of that expression, in particular the use of the word ‘such’, shows that the Community legislature was referring explicitly to forms of advertising with the same characteristics as teleshopping offers. However, the concept ‘other forms of advertising’ as used in the Directive is no longer linked to teleshopping offers, in respect of which Directive 97/36 laid down more precise rules intended to take into account the development and importance of that activity. ( )

69. Moreover, in the light of the objective underlying Article 18(2) of the Directive, of protecting consumers against the excessive broadcasting of advertising at peak viewing hours, to which I shall return, it seems difficult to accept that the criterion for derogating from that hourly limit is the duration of the advertising messages. Such an interpretation would effectively encourage economic operators to invent new forms of advertising requiring longer transmission times for technical reasons and thus render the hourly limit less effective.

70. In so far as the purpose of the Directive is to lay down, in all the Member States, limits on the transmission time for all forms of advertising satisfying the definition contained in Article 1(c) of the Directive, I am inclined to the view that the meaning of the term ‘other forms of advertising’ as used in Article 18(1) of the Directive must be sought in the provisions of that directive.

71. An examination of those provisions shows that the other forms of advertising which might be distinguished from advertising spots and which are mentioned in the Directive are sponsorship credits. Such announcements are indeed a form of advertising, since, in the terms of Article 1(e) of the Directive, they have the aim of promoting the name, trade mark, image, activities or products of the sponsor.

72. In my opinion, Directive 2007/65 corroborates that analysis, since Article 18(2) of Directive 89/552, as amended by Directive 2007/65, excludes from the hourly limit not only announcements made by the broadcaster in connection with its own programmes and ancillary products directly derived from those programmes, but also sponsorship announcements and product placements.

73. I am therefore inclined to the view that the term ‘other forms of advertising’ as used in Article 18(1) of the Directive refers to sponsorship credits rather than to forms of advertising which, because of unavoidable technical constraints, require longer transmission times, as the Commission submits.

74. However, the choice between one or other of those definitions is not crucial to the examination of the present action. Whichever of the two definitions is chosen, the Commission’s line of argument is in my opinion well founded inasmuch as it submits that the interpretation given to the term ‘other forms of advertising’ as used in Article 18(1) of the Directive must not lead to a situation where the hourly limit laid down in Article 18(2) becomes ineffective.

75. After all, even though concepts which limit the freedom to transmit advertisements must be given a restrictive interpretation, as the Court held in ARD, account must also be taken of the objective pursued by the Directive of reconciling the exercise of that freedom with the need to protect viewers from the excessive broadcasting of advertising.

76. As the Commission quite rightly points out, the protection of consumers, as viewers, from excessive advertising is an essential aspect of the objectives of the Directive. ( )

77. The limit of twelve minutes per clock hour laid down in Article 18 of the Directive represents the balance sought by the Community legislature between the need of television broadcasters to secure financing from advertising and the protection of viewers from excessive advertising. In other words, the Community legislature took the view that the possibility of transmitting advertisements for a maximum period of 12 minutes per clock hour was sufficient to allow television broadcasters to cover their financing needs.

78. If that provision is to be effective, the forms of advertising that may be transmitted for more than those 12 minutes must therefore correspond exactly to those intended by the Community legislature. That requirement is also necessary in order to ensure equal treatment for all television broadcasters irrespective of the Member State in whose territory they are established.

79. That interpretation seems to me to be confirmed, should that be necessary, by the provisions of Directive 2007/65, in which the Community legislature decided to remove the daily limit and to maintain only the hourly limit, because only the latter is capable of limiting the transmission of advertising at peak viewing hours and, therefore, of ensuring the balance mentioned above. ( )

80. However, as the Commission has very well demonstrated in this action, the Kingdom of Spain’s argument clearly runs counter to that objective. According to that Member State, the concept ‘advertising spots’ should be defined in the light of a set of criteria and discarded whenever the form of advertising in question differs slightly, by reference to one or other of those criteria, from the definition of ‘spot advertisements’ given in RTI and Others.

81. That argument effectively leaves to the competent authorities of each Member State the power to define the term ‘advertising spots’ on a case by case basis and, therefore, deprives the hourly limit laid down in Article 18(2) of the Directive of much of its effect.

82. That is why I take the view that the present action for failure to fulfil obligations is well founded, including with respect to sponsorship credits, known as ‘euroclaquetas’.

83. According to the definition of that form of advertising in the criteria for the interpretation of the Spanish legislation, ‘euroclaquetas’ are a particular type of spot in which a programme’s sponsorship is announced at the same time as the sponsor’s advertisement is shown.

84. To accept, as the Kingdom of Spain does, that such a form of advertising falls within the meaning of the term ‘other forms of advertising’ and can therefore be transmitted outside the hourly limit of 12 minutes is in effect to allow television broadcasters and economic operators seeking to promote their products or services to circumvent that limit.

85. After all, all they have to do in order to evade that limit is to add a sponsorship credit to the advertisement encouraging viewers to purchase their products or services. The Commission is therefore, in my opinion, entirely justified in maintaining that, pursuant to Article 17 of the Directive, the only sponsorship credits which may be transmitted outside the hourly limit are those which do not encourage viewers to purchase particular products or services of the sponsor.

86. If the Court shares my view, the Kingdom of Spain will have to pay the costs of these proceedings pursuant to Article 69(2) of the Rules of Procedure of the Court of Justice. The United Kingdom will have to bear its own costs pursuant to the first subparagraph of Article 69(4) of those Rules of Procedure.

V – Conclusion

87. In the light of the foregoing considerations, I propose that the Court should:

– declare the present action for failure to fulfil obligations to be well founded in so far as the complaint made is that by tolerating flagrant, repeated and serious infringements of the rules laid down in Article 18(2) of Council Directive 89/552/EEC of 3 October 1989 on the coordination of certain provisions laid down by law, regulation and administrative action in the Member States concerning the pursuit of television broadcasting activities, as amended by Directive 97/36/EC of the European Parliament and of the Council of 30 June 1997, the Kingdom of Spain failed to fulfil its obligations under Article 3(2) of Directive 89/552, as amended, read in conjunction with Article 10 EC;

– order the Kingdom of Spain to pay the costs and the United Kingdom of Great Britain and Northern Ireland to bear its own costs.