v UTECA 
JUDGMENT OF THE COURT (Second Chamber) 
5 March 2009 * 
In Case C-222/07, 
REFERENCE for a preliminary ruling under Article 234 EC from theTribunal Supremo
(Spain), made by decision of 18 April 2007, received at the Court on 3 May 2007, in the
proceedings 
Unión de Televisiones Comerciales Asociadas (UTECA) 
Administración General del Estado, 
intervening parties: 
Federación de Asociaciones de Productores Audiovisuales 
* Language of the case: Spanish. 
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JUDGMENT OF 5. 3. 2009 —CASE C-222/07 
Radiotelevisión Española (RTVE), 
Entidad de Gestión de Derechos de los Productores Audiovisuales (Egeda), 
THE COURT (Second Chamber), 
composed of C.W.A. Timmermans (Rapporteur), President of the Chamber ,
J.-C. Bonichot, J. Makarczyk, P. K ūris and L. Bay Larsen, Judges ,
Advocate General: J. Kokott ,
Registrar: M. Ferreira, Principal Administrator ,
having regard to the written procedure and further to the hearing on 3 July 2008 ,
after considering the observations submitted on behalf of :
—Unión de Televisiones Comerciales Asociadas (UTECA), by S. Muñoz Machado,
abogado, and M. Cornejo Barranco, procuradora, 
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UTECA 
—Federación de Asociaciones de Productores Audiovisuales, by A. Albaladejo and
E. Klimt, abogados, and by A. Blanco Fernández, procurador, 
—Entidad de Gestión de Derechos de los Productores Audiovisuales (Egeda), by
J. Suárez Lozano and M. Benzal Medina, abogados, 
—the Spanish Government, by N. Díaz Abad, acting as Agent, 
—the Belgian Government, by C. Pochet, acting as Agent, and by A. Berenboom and
A. Joachimowicz, avocats, 
—the Greek Government, by E.-M. Mamouna and O. Patsopoulou, acting as Agents, 
—the French Government, by G. de Bergues and A.-L. During, acting as Agents, 
—the Italian Government, by I.M. Braguglia, acting as Agent, assisted by F. Arena,
avvocato dello Stato, 
—the Austrian Government, by C. Pesendorfer, acting as Agent, 
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JUDGMENT OF 5. 3. 2009 —CASE C-222/07 
—the Polish Government, by P.T. Kozek, acting as Agent, 
—the Commission of the European Communities, by E. Montaguti, and by 
R. Vidal Puig and T. Scharf, acting as Agents, 
—the EFTA Surveillance Authority, by B. Alterskjær and L. Young, acting as Agents, 
after hearing the Opinion of the Advocate General at the sitting on 4 September 2008, 
gives the following 
Judgment 
1 This reference for a preliminary ruling concerns the interpretation of Articles 12 EC
and 87 EC, and Article 3 of 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), as amended by Directive 97/36/EC of the European Parliament and of the
Council of 30 June 1997 (OJ 1997 L 202, p. 60; ‘the Directive ’). 
2 The reference has been made in an action brought by the Unión de Televisiones
Comerciales Asociadas ( ‘UTECA ’) against a Royal Decree requiring television 
operators to allocate, first, 5% of their operating revenue for the previous year to the 
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UTECA 
funding of full-length and short cinematographic films and European films made for
television and, secondly, 60% of that funding to the production of films of which the
original language is one of the official languages of the Kingdom of Spain. 
Legal context 
Community legislation 
3 The 26th recital in the preamble to Directive 89/552 states: 
‘…in order to allow for an active policy in favour of a specific language, Member States
remain free to lay down more detailed or stricter rules in particular on the basis of
language criteria, as long as these rules are in conformity with Community law, and in
particular are not applicable to the retransmission of broadcasts originating in other
Member States ’. 
4 Recital 7 in the preamble to Directive 97/36 provides: 
‘…any legislative framework concerning new audiovisual services must be compatible
with the primary objective of this Directive which is to create the legal framework for
the free movement of services ’. 
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5 JUDGMENT OF 5. 3. 2009 —CASE C-222/07 
Recital 44 in the preamble to Directive 97/36 states: 
‘…Member States remain free to apply to broadcasters under their jurisdiction more
detailed or stricter rules in the fields coordinated by this Directive, including, inter alia,
rules concerning the achievement of language policy goals …’. 
6 Recital 45 in the preamble to Directive 97/36 states: 
‘…the objective of supporting audiovisual production in Europe can be pursued within
the Member States in the framework of the organisation of their broadcasting services,
inter alia, through the definition of a public interest mission for certain broadcasting
organisations, including the obligation to contribute substantially to investment in
European production ’. 
7 Article 3(1) of the Directive provides: 
‘Member States shall remain free to require television broadcasters under their 
jurisdiction to lay down more detailed or stricter rules in the areas covered by this
Directive. ’
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8 
9 UTECA 
Article 4(1) of the Directive provides: 
‘Member States shall ensure where practicable and by appropriate means, that 
broadcasters reserve for European works, within the meaning of Article 6, a majority
proportion of their transmission time, excluding the time appointed to news, sports
events, games, advertising, teletext services and teleshopping. This proportion, having
regard to the broadcaster ’s informational, educational, cultural and entertainment 
responsibilities to its viewing public, should be achieved progressively, on the basis of
suitable criteria. ’
Article 5 of the Directive states: 
‘Member States shall ensure, where practicable and by appropriate means, that 
broadcasters reserve at least 10% of their transmission time, excluding the time
appointed to news, sports events, games, advertising, teletext services and teleshop -
ping, or alternately, at the discretion of the Member State, at least 10% of their
programming budget, for European works created by producers who are independent
of broadcasters. This proportion, having regard to broadcasters ’informational, 
educational, cultural and entertainment responsibilities to its viewing public, should
be achieved progressively, on the basis of suitable criteria; it must be achieved by
earmarking an adequate proportion for recent works, that is to say works transmitted
within five years of their production. ’
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JUDGMENT OF 5. 3. 2009 —CASE C-222/07 
National legislation 
10Royal Decree 1652/2004 approving the Regulation governing compulsory investment
for the pre-funding of European and Spanish cinematographic feature-length and short
films and films made for television (Real decreto 1652/2004 por el que se aprueba el
Reglamento que regula la inversión obligatoria para la financiación anticipada de
largometrajes y cortometrajes cinematográficos y películas para televisión, europeos y
españoles) of 9 July 2004 (BOE No 174 of 20 July 2004, p. 26264), implements in part the
Spanish legislation with regard to television and cinematography. That legislation
comprises Law 25/1994 incorporating Directive 89/522/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 in the Spanish legal
order (Ley 25/1994 por la que se incorpora al ordenamiento jurídico español la
Directiva 89/552/CEE del Consejo, sobre la coordinación de disposiciones legales,
reglamentarias y administrativas de los Estados miembros relativas al ejercicio de la
actividad de radiodifusión televisiva) of 12 July 1994 (BOE No 166 of 13 July 1994,
p. 22342), as amended by Law 22/1999 of 7 June 1999 (BOE No 136 of 8 June 1999), then
by the Second Additional Provision of Law 15/2001 on the development and promotion
of cinematography and the audiovisual sector (Ley 15/2001 de fomento y promoción de
la cinematografía y el sector audiovisual) of 9 July 2001 (BOE No 164 of 10 July 2001,
p. 24904). 
11Article 5(1) of Law 25/1994, as amended by Law 22/1999, provides: 
‘Television operators must reserve 51% of their annual transmission time for 
broadcasting European audiovisual works. 
With a view to fulfilling that obligation, each year they must earmark at least 5% of the
total amount of revenue which, according to their operating account, accrued in the
previous financial year for the funding of European cinematographic feature films and
films made for television. ’
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12 UTECA 
Subsequent to the amendment made by the Second Additional Provision of Law
15/2001, the second subparagraph of Article 5(1) of that law was replaced by the
following provisions: 
‘Television operators with editorial responsibility for television channels whose 
programming schedules include recently-produced cinematographic feature films, in
other words, films which are less than seven years old by reference to their date of
production, must earmark each year at least 5% of the total amount of revenue which,
according to their operating account, accrued in the previous financial year for the pre -
funding of the production of European cinematographic feature films and short films
and films made for television, including the cases provided for in Article 5(1) of the Law
on the development and promotion of cinematography and the audiovisual sector.
Sixty per cent of that funding must be used for productions whose original language is
any of the official languages of Spain. 
In that connection, films made for television shall mean audiovisual works which have 
characteristics similar to cinematographic feature films, in other words, unitary works
with a duration of more than 60 minutes and a final outcome, but which are 
distinguished by the fact that their commercial exploitation does not entail cinema
exhibition; and operating revenue shall mean revenue derived from the programming
and running of the television channel or channels which give rise to the obligation
concerned, as reflected in their audited operating accounts. 
After consulting all interested sectors, the Government may enact regulations
stipulating the duration which an audiovisual work is required to have in order to be
regarded as a film made for television. ’
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JUDGMENT OF 5. 3. 2009 —CASE C-222/07 
The dispute in the main proceedings and the questions referred for a preliminary
ruling 
13UTECA has brought an action to challenge Royal Decree 1652/2004 before the
Tribunal Supremo (Supreme Court). In its application, it seeks to have both that Royal
Decree and the legislative provisions on which it is based declared inapplicable,
submitting that the investment obligations imposed thereby infringe not only a number
of provisions of the Spanish Constitution but also certain provisions of Community law. 
14UTECA ’s claims are opposed by the Administración General del Estado (General State
Administration) and by the Federación de Asociaciones de Productores Audiovisuales
Españoles (Federation of Spanish Audiovisual Producers ’Associations) and the Entidad
de Gestión de Derechos de los Productores Audiovisuales (Management body for the
rights of audiovisual producers), the latter having intervened to seek to uphold the
validity of the contested provisions. 
15Since the Tribunal Supremo had concerns, first, as to the extent of Member States ’
discretion in imposing stricter standards in fields coordinated by the Directive, having
regard in particular to Article 3(1) thereof, and, secondly, as to the compatibility of
Articles 12 EC and 87 EC with the requirement to reserve 60% of the obligatory funding
for the production of films of which the original language is one of the official languages
of the Kingdom of Spain, decided to stay the proceedings and to refer the following
questions to the Court for a preliminary ruling: 
‘(1) Does Article 3 of [the] Directive …permit Member States to impose on television
operators the obligation to earmark a percentage of their operating revenue for the
pre-funding of European cinematographic films and films made for television? 
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UTECA 
(2) If the reply to the previous question is in the affirmative, is a national measure
which, in addition to laying down the pre-funding obligation referred to above,
reserves 60% of that compulsory funding for works having an original language
which is one of the languages of Spain compatible with that directive and with
Article 12 EC, taken in conjunction with the other special provisions to which that
article refers? 
(3) Does an obligation imposed by a national measure on television operators to the
effect that the latter must earmark a percentage of their operating revenue for the
pre-funding of cinematographic films, where 60% of that amount must be 
earmarked specifically for films having an original language which is one of the
languages of Spain the majority of which are produced by the Spanish film industry,
amount to State aid in favour of that industry within the meaning of Article 87 EC? ’
The first and second questions 
16By its first and second questions, which may conveniently be considered together, the
referring court asks essentially whether the Directive and, more particularly, Article 3
thereof and Article 12 EC are to be interpreted as meaning that they preclude a measure
adopted by a Member State, such as that at issue in the main proceedings, requiring
television operators to earmark 5% of their operating revenue for the pre-funding of
European cinematographic films and films made for television and, more specifically, to
reserve 60% of that 5% for the production of works of which the original language is one
of the official languages of that Member State. 
17At the outset, it must be noted that the Directive does not contain any provision
governing the extent to which a Member State may require television operators to
earmark part of their operating revenue for the funding of European cinematographic
films and films made for television or whose original language is one of the official
languages of that Member State. In particular, Articles 4 and 5 of the Directive do not
address such a situation. 
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JUDGMENT OF 5. 3. 2009 —CASE C-222/07 
18Pursuant to Article 3(1) of the Directive, the Member States remain free to lay down
more detailed or stricter rules with regard to television broadcasting bodies under their
jurisdiction. Nevertheless, when exercising that right, they must respect the 
fundamental freedoms guaranteed by the EC Treaty (see, to that effect, Case C-6/98
ARD [1999] ECR I-7599, paragraph 49, and Case C-500/06 Corporación Dermoestética 
[2008] ECR I-5785, paragraph 31). 
19Finally, it should be recalled that the Directive does not completely harmonise the rules
relating to the areas which it covers, but that it lays down minimum rules for broadcasts
which emanate from the European Community and which are intended to be received
within it (see, to that effect, Case C-412/93 Leclerc-Siplec [1995] ECR I-179, paragraphs 
29 and 44, and Joined Cases C-34/95 to C-36/95 De Agostini and TV-Shop [1997] 
ECR I-3843, paragraph 3). 
20It follows that, irrespective of whether the measure adopted by a Member State such as
the measure at issue in the main proceedings is in an area covered by the Directive, the
Member States retain, in principle, jurisdiction to adopt such a measure, provided that
they respect the fundamental freedoms guaranteed by the Treaty. 
21In those circumstances, it is appropriate to examine whether that measure respects
those fundamental freedoms. 
22With regard to a measure adopted by a Member State such as the measure at issue in the
main proceedings requiring television operators to earmark 5% of their operating
revenue for the pre-funding of European cinematographic films and films made for
television, the documents before the Court do not contain any indication that such a
measure constitutes, in practice, a restriction on one of the fundamental freedoms
guaranteed by the Treaty. 
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UTECA 
23Moreover, it should be noted that it is clear from a reading of recital 7 in conjunction
with recital 45 in the preamble to Directive 97/36 that the main objective of that
directive is to create a legal framework for the free movement of services, mention being
made at the same time, inter alia, of ‘supporting audiovisual production in Europe ’, 
which can be achieved through, inter alia, ‘the obligation to contribute substantially to 
investment in European production ’. 
24By contrast, with regard to a measure such as that at issue in the main proceedings, in so
far as it relates to the obligation to reserve for the production of films of which the
original language is one of the official languages of the Member State in question 60% of
the 5% of operating revenue reserved for the pre-funding of European cinematographic
films and films made for television, such a measure constitutes, as the Advocate 
General points out in points 78 to 87 of her Opinion, a restriction on several 
fundamental freedoms, that is to say on the freedom to provide services, freedom of
establishment, the free movement of capital and freedom of movement for workers. 
25However, such a restriction on the fundamental freedoms guaranteed by theTreaty may
be justified only where it serves overriding reasons relating to the general interest, is
suitable for securing the attainment of the objective which it pursues and does not go
beyond what is necessary in order to attain it (Case C-250/06 United Pan-Europe 
Communications Belgium and Others [2007] ECR I-11135, paragraph 39 and the case -
law cited). 
26According to the Spanish Government, the measure at issue in the main proceedings
has a cultural basis, namely the defence of Spanish multilingualism. 
27In that regard, the Court has already accepted that the objective, pursued by a Member
State, of defending and promoting one or several of its official languages constitutes an
overriding reason in the public interest (see, to that effect, Case C-379/87 Groener 
[1989] ECR 3967, paragraph 19, and United Pan-Europe Communications Belgium and 
Others , paragraph 43). 
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JUDGMENT OF 5. 3. 2009 —CASE C-222/07 
28As the Advocate General points out in point 91 of her Opinion, such an aim has also
been recognised as being legitimate by the Community legislature, as shown by the 26th
recital in the preamble to Directive 89/552 and recital 44 in the preamble to 
Directive 97/36. 
29A measure taken by a Member State such as the measure at issue in the main
proceedings, in so far as it introduces an obligation to invest in cinematographic films
and films made for television the original language of which is one of the official
languages of that Member State, appears appropriate to ensure that such an objective is
achieved. 
30In addition, it does not appear, in the circumstances of the action in the main
proceedings, that such a measure goes beyond what is necessary to achieve that
objective. 
31By requiring television operators to reserve for works whose original language is one of
the official languages of the Member State concerned 60% of the 5% of operating
revenue reserved for the pre-funding of European cinematographic films and films
made for television, a measure taken by a Member State such as the member at issue in
the main proceedings affects, in the final analysis, 3% of the operating revenue of those
operators. The documents submitted to the Court do not contain any material which
might lead to the conclusion that such a percentage is disproportionate in relation to
the objective pursued. 
32Furthermore, contrary to the submissions of the Commission of the European
Communities, a measure taken by a Member State such as the measure at issue in the
main proceedings does not go beyond what is necessary to achieve the objective
pursued by reason of the mere fact that it does not lay down criteria which would allow
the works concerned to be classified as ‘cultural productions ’. 
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UTECA 
33Since language and culture are intrinsically linked, as pointed out by, inter alia, the
Convention on the Protection and Promotion of the Diversity of Cultural Expressions,
adopted at the General Conference of UNESCO in Paris on 20 October 2005 and
approved on behalf of the Community by Council Decision 2006/515/EC of 18 May
2006 (OJ 2006 L 201, p. 15), which states in paragraph 14 of its preamble that ‘linguistic 
diversity is a fundamental element of cultural diversity ’, the view cannot be taken that 
the objective pursued by a Member State of defending and promoting one or several of
its official languages must of necessity be accompanied by other cultural criteria in
order for it to justify a restriction on one of the fundamental freedoms guaranteed by the
Treaty. Indeed, in the present proceedings, the Commission has been unable to state
precisely what those criteria should actually be. 
34Nor does a measure taken by a Member State such as the measure at issue in the main
proceedings go beyond what is necessary to achieve the objective pursued by reason of
the mere fact that the beneficiaries of the financing concerned are mostly cinema
production undertakings in that Member State. 
35As the Advocate General pointed out in point 110 of her Opinion, the criterion used in
respect of such a measure is linguistic. 
36The fact that such a criterion may constitute an advantage for cinema production
undertakings which work in the language covered by that criterion and which, 
accordingly, may in practice mostly comprise undertakings established in the Member
State of which the language constitutes an official language appears inherent to the
objective pursued. Such a situation cannot, of itself, constitute proof of the 
disproportionate nature of the measure at issue in the main proceedings without
rendering nugatory the recognition, as an overriding reason in the public interest, of the
objective pursued by a Member State of defending and promoting one or several of its
official languages. 
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37 JUDGMENT OF 5. 3. 2009 —CASE C-222/07 
With regard to Article 12 EC, of which an interpretation is also requested by the
referring court and which enshrines the general principle of non-discrimination on
grounds of nationality, it must be recalled that that provision applies independently
only to situations governed by Community law for which the Treaty lays down no
specific rules of non-discrimination (see Case C-40/05 Lyyski [2007] ECR I-99, 
paragraph 33 and the case-law cited). 
38However, in relation to the freedom of movement for workers, the right of 
establishment, the freedom to provide services and the free movement of capital, the
principle of non-discrimination was implemented by Articles 39(2) EC, 43 EC, 49 EC
and 56 EC respectively (see, with regard to Article 39(2) EC, Lyyski , paragraph 34; with 
regard to Article 49 EC, Case C-289/02 AMOK [2003] ECR I-15059, paragraph 26; and,
with regard to Articles 43 EC and 56 EC, Case C-222/04 Cassa di Risparmio di Firenze 
and Others [2006] ECR I-289, paragraph 99). 
39Since it follows from the foregoing that a measure taken by a Member State such as that
at issue in the main proceedings does not appear contrary to those provisions of the
Treaty, it cannot be considered contrary to Article 12 EC either. 
40Consequently, the answer to the first and second questions is that the Directive and,
more particularly, Article 3 thereof and Article 12 EC must be interpreted as meaning
that they do not preclude a measure adopted by a Member State such as the measure at
issue in the main proceedings which requires television operators to earmark 5% of
their operating revenue for the pre-funding of European cinematographic films and
films made for television and, more specifically, to reserve 60% of that 5% for the
production of works of which the original language is one of the official languages of
that Member State. 
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UTECA 
The third question 
41By its third question, the referring court asks essentially whether Article 87 EC is to be
interpreted as meaning that a measure adopted by a Member State, such as the measure
at issue in the main proceedings, requiring television operators to earmark 5% of their
operating revenue for the pre-funding of European cinematographic films and films
made for television and, more specifically, to reserve 60% of that 5% for the production
of works of which the original language is one of the official languages of that Member
State constitutes State aid in favour of the cinematographic industry of that Member
State. 
42It should be recalled that, in accordance with settled case-law, classification as aid 
requires all the conditions set out in Article 87 EC to be fulfilled, that is to say, first, there
must be intervention by the State or through State resources, second, the intervention
must be liable to affect trade between Member States, third, it must confer an advantage
on the recipient and, fourth, it must distort or threaten to distort competition (Case
C-280/00 Altmark Trans and Regierungspräsidium Magdeburg [2003] ECR I-7747, 
paragraphs 74 and 75 and the case-law cited). 
43More particularly, it is clear from the case-law of the Court that only advantages granted
directly or indirectly through State resources are to be considered aid within the
meaning of Article 87(1) EC. The distinction made in that provision between aid
granted by a Member State and aid granted through State resources does not signify
that all advantages granted by a State, whether financed through State resources or not,
constitute aid, but is intended merely to bring within that definition both advantages
which are granted directly by the State and those granted by a public or private body
designated or established by the State (Case C-379/98 PreussenElektra [2001] 
ECR I-2099, paragraph 58 and the case-law cited). 
44It is not apparent that the advantage given by way of a measure adopted by a Member
State, such as that at issue in the main proceedings, to the cinematographic industry of a 
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JUDGMENT OF 5. 3. 2009 —CASE C-222/07 
Member State constitutes an advantage granted directly by the State or by a public or
private body designated or established by the State. 
45Such an advantage is the result of general legislation requiring television operators,
whether public or private, to earmark a percentage of their operating revenue for the
pre-funding of European cinematographic films and films made for television. 
46Furthermore, since a measure adopted by a Member State, such as the measure at issue
in the main proceedings, applies to public television operators, it does not appear that
the advantage in question is dependent on the control exercised by the public
authorities over such operators (see, by analogy, Joined Cases 67/85, 68/85 and 70/85
Kwekerij van der Kooy and Others v Commission [1988] ECR 219, paragraph 37). 
47Consequently, the answer to the third question is that Article 87 EC must be interpreted
as meaning that a measure adopted by a Member State, such as the measure at issue in
the main proceedings, requiring television operators to earmark 5% of their operating
revenue for the pre-funding of European cinematographic films and films made for
television and, more specifically, to reserve 60% of that 5% for the production of works
of which the original language is one of the official languages of that Member State does
not constitute State aid in favour of the cinematographic industry of that Member State. 
Costs 
48Since these proceedings are, for the parties to the main proceedings, a step in the action
pending before the national court, the decision on costs is a matter for that court. Costs
incurred in submitting observations to the Court, other than the costs of those parties,
are not recoverable. 
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UTECA 
On those grounds, the Court (Second Chamber) hereby rules: 
1.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, as
amended by Directive 97/36/EC of the European Parliament and of the
Council of 30 June 1997, and, more particularly, Article 3 thereof and 
Article 12 EC must be interpreted as meaning that they do not preclude a
measure adopted by a Member State such as the measure at issue in the main
proceedings which requires television operators to earmark 5% of their 
operating revenue for the pre-funding of European cinematographic films and
films made for television and, more specifically, to reserve 60% of that 5% for
the production of works of which the original language is one of the official
languages of that Member State. 
2.Article 87 EC must be interpreted as meaning that a measure adopted by a
Member State, such as the measure at issue in the main proceedings, requiring
television operators to earmark 5% of their operating revenue for the pre -
funding of European cinematographic films and films made for television and,
more specifically, to reserve 60% of that 5% for the production of works of
which the original language is one of the official languages of that Member
State does not constitute State aid in favour of the cinematographic industry of
that Member State. 
[Signatures] 
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