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'
Date: 1997-10-24
Institutions: European Commission
Subjects: administrative cooperation, audiovisual industry, broadcasting, free movement of programmes, television

ft  S*Wf3?!SE8 "Sflpf» i (S^ft 

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 

2. SUBJECT OF THE REPORT 

3. DEVELOPMENT OF THE TELEVISION MARKET IN EUROPE. 

4. APPLICATION OF THE DIRECTIVE 

4.1 Coordination between national authorities and the Commission 

4.2  Protection  of minors:  application  of the  special  procedure  laid  down  in 

Article 2(2) of the Directive 

4.3 Application of rules on advertising 

5. COURT OF JUSTICE CASE LAW 

5.1 General remarks 

5.2 Case C-412/93 "Leclerc-Siplec" 

5.3  Judgments  by the  Court  of  10 September  1996  in  Commission v United 

Kingdom and Commission v Belgium 

5.4 Cases C-14/96 "Paul Denuit" and C-56/96 "VT4" 

5.5 C-320/94  et al. "RTI" 

5.6 Cases C-34, C-35, C-36/95 "De Agostini" and "TV-Shop" 

6. CONCLUSIONS 

3 

4 

4 

5 

5 

6 

8 

9 

9 

9 

10 

13 

15 

17 

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  Directive 
the 
(i.e. 31 December 2000). 

the  date  of  adoption  of 

third  year  after 

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 

6 

7 

8 

Infringement  proceedings  against several Member States were opened or pursued in  1995 and  1996. 

ID ATE,  "Marché  mondial  de  l'audiovisuel  et  du  cinéma  -  Industries  et  Marchés",  November  1996, 
p.  114. 

ibid., p. 111. 

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 
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. 

responsible^  for 

regulating 

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. 

-7 

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. 

the  Commission's 

Most of the Court's judgments, whether in proceedings for failure to fulfil  an 
initiative 
law,  on 
obligation  under  Community 
(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 
the  broadcasting  of 
preclude 

the  Member  States 

from  prohibiting 

- 9-

advertisements 
established on their territory. 

for 

the  distribution  sector  by 

television  broadcasters 

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 
legislation  may  lead  (as  they  have  done  in  certain  cases)  to 
bodies  of 
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. 

the  French  Community's  provisions  regarding  cable 
First,  regarding 
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 

to 

the  United  Kingdom.  Referring 

In  Case  C-56/96,  the  Belgian  authorities  (Flemish  Community)  refused  to 
authorise the Flemish cable networks to distribute the programmes of VT4, a 
the 
broadcaster  established 
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. 

- 1 4-

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). 

that 

the  fact 

its  judgment, 

the  Court  considers,  first, 

that  all 
In 
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) 

2) 

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?) 

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. 

- 1 7-

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. 

22 

•>„ 
Paragraph 58, p. 14. 

-  II 

longer  apply  to  programmes  emanating  from  another  Member  State 
provisions  specifically  designed 
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. 

to  control  the  content  of 

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 

24 

Paragraphs  60 and 62, pp.  14 and  15. 

Paragraph  38, p.  11. 

2:3 

Paragraph  50, p. 13. 

2" 

2' 

Paragraph  44, p. 12. 

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 
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". 

that  those  measures  do  not  prevent 

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. 

2 1-

ISSN 0254-1475 

COM(97) 523  final 

DOCUMENTS 

EN 

02  08  10  15 

Catalogue number  :  CB-CO-97-533-EN-C 

ISBN  92-78-25900-4 

Office  for Official  Publications of the European Communities 

L-2985  Luxembourg 

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£  Z 

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