CELEX: 62001CJ0245
Language: en
Date: 2003-10-23
Title: Judgment of the Court (Fifth Chamber) of 23 October 2003. # RTL Television GmbH v Niedersächsische Landesmedienanstalt für privaten Rundfunk. # Reference for a preliminary ruling: Niedersächsisches Oberverwaltungsgericht - Germany. # Directive 89/552/EEC - Article 11(3) - Television broadcasting - Television advertising - Advertising breaks in audiovisual works - Definition of series. # Case C-245/01.

Case C-245/01 RTL Television GmbHvNiedersächsische Landesmedienanstalt für privaten Rundfunk(Reference for a preliminary ruling from the Niedersächsisches Oberverwaltungsgericht)
         
            «(Directive 89/552/EEC – Article 11(3) – Television broadcasting – Television advertising – Advertising breaks in audiovisual works – Definition of series)»
            
               
                  Opinion of Advocate General Jacobs delivered on 22 May 2003 
                     
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                  Judgment of the Court (Fifth Chamber), 23 October 2003  
                     
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            Summary of the Judgment
         
         
                  1..
                  Freedom to provide services – Television broadcasting – Directive 89/552 – Television advertising – Frequency of advertising slots during broadcasts – Increased protection of audiovisual works – Films made for television – Meaning – Films providing, from their conception, for breaks for the insertion of advertising – Included  (Council Directive 89/552, Art. 11(3)) 
         
                  2..
                  Freedom to provide services – Television broadcasting – Directive 89/552 – Television advertising – Frequency of advertising slots during broadcasts – Increased protection of audiovisual works – Exception for series – Criteria  (Council Directive 89/552, Art. 11(3)) 
         
         1.
          Films which have been made for television and which provide, from their conception, for breaks for the insertion of advertising
         are covered by the term  
         films made for television in Article 11(3) of Directive 89/552 concerning the pursuit of television broadcasting activities, as amended by Directive
         97/36. They benefit therefore from the increased protection under that provision for audiovisual works as regards the frequency of
         advertising slots. see paras 51, 55, 74, operative part 1
         
         2.
          The connections which must link films in order that they can come within the exception laid down for  
         series by Article 11(3) of Directive 89/552 relating to the increased protection for audiovisual works as regards the frequency
         of advertising slots, must relate to the content of the films concerned, such as, for example, the development of the same
         story from one episode to another or the reappearance of one or more characters in different episodes. Links based on form such as the same broadcasting slot, a broadcast under the same title or theme, or a presentation before
         or after the programmes cannot be sufficient for the purposes of the definition of the term  
         series. see paras 103-104, 108, operative part 2
      

      
      
      
      
      
      
      
      
      
      
      
      
      
      
      
            
            JUDGMENT OF THE COURT (Fifth Chamber)23 October 2003 (1)
         
         
            
         
               ((Directive 89/552/EEC – Article 11(3) – Television broadcasting – Television advertising – Advertising breaks in audiovisual works – Definition of series))
               
            In Case C-245/01, 
            REFERENCE to the Court under Article 234 EC by the Niedersächsisches Oberverwaltungsgericht (Germany) for a preliminary ruling
            in the proceedings pending before that court between
            
            
            
             RTL Television GmbH 
            
            
            and
            
             Niedersächsische Landesmedienanstalt für privaten Rundfunk, 
            
            
            on the interpretation of Article 11(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 COURT (Fifth Chamber),,
            
            composed of: C.W.A. Timmermans (Rapporteur), President of the Fourth Chamber, acting for the President of the Fifth Chamber, D.A.O. Edward and  P. Jann, Judges, 
            
            Advocate General: F.G. Jacobs, Registrar: M.-F. Contet, Principal Administrator, 
            
            
            after considering the written observations submitted on behalf of:
               
               
               ─
               RTL Television GmbH, by J. Sommer and T. Tschentscher, Rechtsanwälte, 
               
               
               ─
               the Niedersächsische Landesmedienanstalt für privaten Rundfunk, by R. Albert, acting as Agent, 
               
               
               ─
               the United Kingdom Government, by G. Amodeo, acting as Agent, assisted by P. Harris, Barrister, 
               
               
               ─
               the Commission of the European Communities, by C. Tufvesson, acting as Agent, assisted by W. Berg, Rechtsanwalt, 
               
               
            
            
            having regard to the Report for the Hearing,
            
            after hearing the oral observations of RTL Television GmbH, represented by T. Tschentscher and J. Sommer; of the Niedersächsische
               Landesmedienanstalt für privaten Rundfunk, represented by A. Fischer, acting as Agent; and of the Commission, represented
               by C. Tufvesson, assisted by W. Berg, at the hearing on 29 January 2003,
            
            
            after hearing the Opinion of the Advocate General at the sitting on 22 May 2003,
         gives the following
         
         
         Judgment
         1
            
         By order of 15 June 2001, received at the Court on 25 June 2001, the Niedersächsisches Oberverwaltungsgericht (Lower Saxony
         Higher Administrative Court) referred to the Court for a preliminary ruling under Article 234 EC four questions on the interpretation
         of Article 11(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) (hereinafter  
         Directive 89/552). 
         
         
         2
            
         Those questions have been raised in proceedings between RTL Television GmbH (hereinafter  
         RTL), a private television broadcaster, and the Niedersächsische Landesmedienanstalt für privaten Rundfunk (Lower Saxony Media
         Office for Private Broadcasting, hereinafter  
         the NLM), a public body of the  
          Land  of Lower Saxony which succeeded the Niedersächsischer Landesrundfunkausschuss (hereinafter  
         the NLA) and assumed its supervisory powers over private broadcasters, concerning a decision of the NLA that certain films broadcast
         by RTL had infringed the legislation on the frequency of advertising breaks. 
         
            
               Legal background
            Community law
         
         
         3
            
         The sixth, seventh and eighth recitals in the preamble to Directive 89/552 are worded as follows: Whereas television broadcasting constitutes, in normal circumstances, a service within the meaning of the Treaty;Whereas the Treaty provides for free movement of all services normally provided against payment, without exclusion on grounds
         of their cultural or other content and without restriction of nationals of Member States established in a Community country
         other than that of the person for whom the services are intended;Whereas this right as applied to the broadcasting and distribution of television services is also a specific manifestation
         in Community law of a more general principle, namely the freedom of expression as enshrined in Article 10(1) of the Convention
         for the Protection of Human Rights and Fundamental Freedoms ratified by all Member States; whereas for this reason the issuing
         of directives on the broadcasting and distribution of television programmes must ensure their free movement in the light of
         the said Article and subject only to the limits set by paragraph 2 of that Article and by Article 56(1) of the Treaty.
         
         
         4
            
         The 27th recital in the preamble to Directive 89/552 states: Whereas in order to ensure that the interests of consumers as television viewers are fully and properly protected, it is essential
         for television advertising to be subject to a certain number of minimum rules and standards and that the Member States must
         maintain the right to set more detailed or stricter rules and in certain circumstances to lay down different conditions for
         television broadcasters under their jurisdiction.
         
         
         5
            
         Article 3(1) of Directive 89/552 provides: Member States shall remain free to require television broadcasters under their jurisdiction to comply with more detailed or
         stricter rules in the areas covered by this Directive.
         
         
         6
            
         Under Article 11(1), (3) and (4) of Directive 89/552: 
         
         1.
          Advertising and teleshopping spots shall be inserted between programmes. Provided the conditions set out in paragraphs 2 to
         5 are fulfilled, advertising and teleshopping spots may also be inserted during programmes in such a way that the integrity
         and value of the programme, taking into account natural breaks in and the duration and nature of the programme, and the rights
         of the rights holders are not prejudiced.
         ...
         
         3.
          The transmission of audiovisual works such as feature films and films made for television (excluding series, serials, light
         entertainment programmes and documentaries), provided their scheduled duration is more than 45 minutes, may be interrupted
         once for each period of 45 minutes. A further interruption shall be allowed if their scheduled duration is at least 20 minutes
         longer than two or more complete periods of 45 minutes.
         
         
         4.
          Where programmes, other than those covered by paragraph 2, are interrupted by advertising or teleshopping spots, a period
         of at least 20 minutes should elapse between each successive advertising break within the programme.
         
         The European Convention on Transfrontier Television
         
         
         7
            
         Article 14(1), (3) and (4) of the European Convention on Transfrontier Television of 5 May 1989 (hereinafter  
         the European Convention), as amended, is worded as follows: 
         
         1.
          Advertising and tele-shopping shall be inserted between programmes. Provided the conditions contained in paragraphs 2 to 5
         of this article are fulfilled, advertising and tele-shopping spots may also be inserted during programmes in such a way that
         the integrity and value of the programme and the rights of the rights holders are not prejudiced.
         ...
         
         3.
          The transmission of audiovisual works such as feature films and films made for television (excluding series, serials, light
         entertainment programmes and documentaries), provided their scheduled duration is more than 45 minutes, may be interrupted
         once for each complete period of 45 minutes. A further interruption is allowed if their scheduled duration is at least 20
         minutes longer than two or more complete periods of 45 minutes.
         
         
         4.
          Where programmes, other than those covered by paragraph 2, are interrupted by advertising or tele-shopping spots, a period
         of at least 20 minutes should elapse between each successive advertising or tele-shopping break within the programme.
         
         The European Convention for the Protection of Human Rights and Fundamental Freedoms
         
         
         8
            
         Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter  
         the ECHR), entitled  
         Freedom of expression, provides: 
         
         1.
          Everyone has the right to freedom of expression.  This right shall include freedom to hold opinions and to receive and impart
         information and ideas without interference by public authority and regardless of frontiers.  This article shall not prevent
         States from requiring the licensing of broadcasting, television or cinema enterprises.
         
         
         2.
          The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities,
         conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society in the interests
         of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection
         of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information
         received in confidence, or for maintaining the authority and impartiality of the judiciary.
         
         German Law
         
         
         9
            
         The German Grundgesetz (Basic Law) confers on the  
          Länder  legislative competence in matters of radio and television broadcasting. 
         
         
         10
            
         Paragraph 26(2) to (4) of the Staatsvertrag über den Rundfunk im vereinigten Deutschland (State Treaty on Broadcasting in
         the United Germany, hereinafter  
         the Rundfunkstaatsvertrag) of 31 August 1991 provides: 
         
         2.
          Television advertising must be inserted in blocks between programmes.  It may also be inserted during programmes subject to
         the requirements of subparagraphs (3) to (5), so long as the programme's integrity and character are not affected.
         
         
         3.
          In television programmes consisting of independent parts, or in sports programmes or broadcasts of events and similar occasions
         containing breaks, advertising may be inserted only between the independent parts or during the breaks.  In other programmes,
         the interval between two successive interruptions within the programme must be at least 20 minutes.  Subparagraphs (4) and
         (5) are not affected.
         
         
         4.
          In derogation from the second sentence of subparagraph (3), works such as feature films and television films (excluding series,
         serials, light entertainment programmes and documentaries), where they last longer than 45 minutes, may be interrupted once
         for each complete period of 45 minutes. A further interruption is allowed if those programmes last at least 20 minutes longer
         than two or more complete periods of 45 minutes.
         
         
         
         11
            
         Those provisions were repeated, with amendments irrelevant to the main proceedings, in Paragraph 44(2) to (4) of the Vierter
         Staatsvertrag zur Änderung rundfunkrechtlicher Staatsverträge (Fourth State Treaty amending the State Treaties on Broadcasting
         Rights, hereinafter  
         the Vierter Rundfunkstaatsvertrag). 
         
         
         12
            
         Paragraph 28(2) of the Niedersächsisches Landesrundfunkgesetz (Law of the  
          Land  of Lower Saxony on Television, hereinafter  
         the Landesrundfunkgesetz), as amended, provides that the NLA, the body which was succeeded by the defendant in the main proceedings, may determine
         that a programme or broadcast infringes the Landesrundfunkgesetz or the terms of licences and order the broadcaster and those
         responsible for the programme's content to put an end to the infringement. 
         
         
         13
            
         Paragraph 33(5) to (7) of the Landesrundfunkgesetz contains provisions similar to those of Paragraph 26(2) to (4) of the Rundfunkstaatsvertrag
         and Paragraph 44(2) to (4) of the Vierter Rundfunkstaatsvertrag. 
         
         
         14
            
         Subsequent references in this judgment to Paragraph 26(2) to (4) of the Rundfunkstaatsvertrag must be understood as also referring
         to the corresponding provisions of the Landesrundfunkgesetz and the Vierter Rundfunkstaatsvertrag mentioned in the previous
         paragraph. 
         The main proceedings and the questions referred
         
         15
            
         On 7 October 1993, RTL broadcast  
         The Revenge of Amy Fisher, a film lasting 86 minutes, interrupting it four times with advertising.  It did the same a week later during the broadcasting
         of  
         Cries in the Forest, a film lasting 90 minutes.  Those films were broadcast as part of a sequence entitled  
         Dangerous Liaisons. 
         
         
         16
            
         By decision of 12 November 1993, the NLA determined that, by interrupting each of those films by four advertising breaks,
         RTL had infringed the first sentence of Paragraph 26(4) of the Rundfunkstaatsvertrag.  It ordered that, if those films were
         rebroadcast, they should not be interrupted by more than one or more than two advertising breaks respectively. 
         
         
         17
            
         By the same decision, the NLA further ordered RTL not to interrupt eight other films or any feature or television film broadcast
         as part of a series whose scheduling was advertised (that is, the series  
         Dangerous Liaisons,  
         Family Fortunes and  
         Great Television Stories), by more frequent advertising than that permitted by the first sentence of Paragraph 26(4) of the Rundfunkstaatsvertrag.
         
         
         
         18
            
         In support of its decision, the NLA argued that the broadcasts in question could not be regarded as forming part of a series
         within the meaning of Paragraph 26(4) of the Rundfunkstaatsvertrag and could not, therefore, be interrupted by advertising
         at 20-minute intervals. 
         
         
         19
            
         In its decision, the NLA stated, in particular, that the concept of a series is closely connected to that of a serial and
         assumes that the different films will be largely identical from the point of view of plot and characters.  The NLA decided,
         in particular, that neither the identical broadcasting slots nor the fact that the scripts are based on novels or that there
         are common themes such as love, passion or family relationships in general, create a sufficient link for such programmes to
         be regarded as forming a series. 
         
         
         20
            
         On 23 November 1993, RTL brought an action in the Niedersächsisches Verwaltungsgericht (Lower Saxony Administrative Court)
         (Germany) for annulment of the NLA's decision. 
         
         
         21
            
         In support of its action RTL claimed that that decision was based on too strict a construction of the meaning of  
         series.  That term should be defined as the grouping of several self-standing stories with a common theme characterised both by
         criteria of content, such as film genre, and similarity of script and theme, and by criteria of external form, such as length
         of broadcast and broadcasting slot, and various other factors, for example, a specific director. 
         
         
         22
            
         The NLM stated that the concept of a series requires that the connection between the broadcasts which form the series relates
         to their content.  To accept criteria mainly of form, as suggested by RTL, would give the television operator complete latitude
         frequently to interrupt programmes with advertising. 
         
         
         23
            
         By judgment of 25 September 1997, the Niedersächsisches Verwaltungsgericht dismissed RTL's action on the ground that the television
         films in question could not be treated as a series within the meaning of Paragraph 26(4) of the Rundfunkstaatsvertrag. 
         
         
         24
            
         RTL appealed against that judgment to the referring court.  In support of its appeal RTL claims that the definition upheld
         by the Niedersächsisches Verwaltungsgericht is incompatible with Article 11(3) of Directive 89/552. 
         
         
         25
            
         As a preliminary point, the national court notes that according to the case-law of the Bundesverfassungsgericht (Federal Constitutional
         Court, Germany) it has no doubts under constitutional law based on the first sentence of Article 5(1) of the German Basic
         Law as to the application of Paragraph 26(4) of the Rundfunkstaatsvertrag, which is the legal basis of the decision at issue
         in the main proceedings.  That provision is based closely on Article 11(3) of Directive 89/552. 
         
         
         26
            
         The national court considers that the function of Paragraph 26(4) of the Rundfunkstaatsvertrag is to safeguard the artistic
         value of cinema and television films and to protect them from too frequent advertising breaks. 
         
         
         27
            
         Such a teleological construction is, according to the national court, supported by the background to Paragraph 26(4) of the
         Rundfunkstaatsvertrag.  That provision relates first to Article 14(3) of the European Convention, which reflects the compromise
         reached by the Council of Europe between the objective of increased protection for cinema and television films and the interests
         of advertisers.  Article 11(4) of Directive 89/552 is also based on that compromise.  The national court notes that the  
          Länder , the parties to the Rundfunkstaatsvertrag, wished to bring German law into line with the European rules in respect of advertising
         breaks.  It follows that, according to the Court's case-law, the national provision at issue in the main proceedings must
         be considered and construed in the light of the letter and spirit of Article 11(3) of Directive 89/552. 
         
         
         28
            
         The national court observes also that neither the wording nor the scheme of Article 11(3) of Directive 89/552 supports RTL's
         argument that cinema films alone should be safeguarded and not television films, on the ground that the latter are made to
         be broadcast specifically on the basis of advertising breaks. 
         
         
         29
            
         The national court notes that it has already ruled that the concept of a series requires the existence of a link between the
         different programmes from the point of view of their content or their action. 
         
         
         30
            
         It considers that its point of view is confirmed by the Guidelines of the United Kingdom's Independent Television Commission
         (hereinafter  
         the ITC) as well as by the common guidelines adopted by the  
          Länder . 
         
         
         31
            
         It finds that, in the present case, the matters relied upon by RTL to connect the different episodes from the thematic or
         dramatic point of view ─ with themes such as love affairs, marital crises, existential crises, crime, violence, prostitution,
         surrogate mothers and natural disasters, which present broad points in common since a central character may be confronted
         with a dramatic situation and must overcome it ─ are too vague to be regarded, even in conjunction with other factors relating
         to form, as forming a series. 
         
         
         32
            
         The national court concludes that the outcome of the main proceedings depends on the definition of a  
         series and the criteria to be taken into account in that regard.  Since the Court of Justice has not yet ruled on this subject in
         its case-law relating to Article 11(3) of Directive 89/552, the national court takes the view that there are good grounds
         for referring questions for a preliminary ruling. 
         
         
         33
            
         In those circumstances, the national court decided to stay the proceedings and to refer the following questions to the Court
         for a preliminary ruling: 
         
         1.
          Does Article 11(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), by restricting advertising breaks, pursue the objective of protecting the artistic value of feature films and
         films made for television, irrespective of whether films made for television have from the outset been produced for television
         and provided with breaks designed for the insertion of advertising spots? 
         
         
         2.
          What criteria must be satisfied for the broadcasting of several feature films and films made for television to be classified
         as a  
         series, derogating from the advertising restrictions for feature films and films made for television? 
         
         
         3.
          Are broadcasts consisting of several parts which manifest a common concept due to common features of theme, content and form,
         and which are broadcast at connected times, to be regarded as a  
         series for the purposes of Article 11(3) of Directive 89/552/EEC as amended by Directive 97/36/EC? 
         
         
         4.
          Does the interpretation of the term  
         series for the purposes of Article 11(3) of Directive 89/552/EEC as amended by Directive 97/36/EC permit common points of theme
         or content of the episodes to be wholly or largely regarded as unnecessary and predominantly points of form or form of reception
         taken as the criterion?
         
         The questions referredThe first question
         
         
         34
            
         By its first question the referring court is asking, in essence, whether films which have been made for television and which
         provide, from their conception, for breaks for the insertion of advertising come within the meaning of  
         films made for television in Article 11(3) of Directive 89/552, particularly in view of the purpose of that provision, which is to limit advertising
         breaks so as to protect the artistic value of feature and television films. 
         Observations submitted to the Court
         
         
         35
            
         RTL maintains that Article 11(3) of Directive 89/552 is primarily intended to protect the integrity and artistic value of
         audiovisual works as well as editorial freedom.  Consumer protection is only a secondary objective of that provision. 
         
         
         36
            
         According to RTL, the protection of the artistic value of audiovisual works cannot, however, be extended to films which have
         been produced specifically for television and designed from the outset to provide breaks for the insertion of advertising
         spots.  Such an extension would constitute an unjustified interference with the fundamental rights of television broadcasters.
         
         
         
         37
            
         RTL claims that the freedom of television broadcasters to produce and transmit television films is part of the freedom to
         communicate and broadcast ─ which includes, among other things, television advertising, an independent form of communication
         ─ which constitutes a fundamental right guaranteed by Community law. 
         
         
         38
            
         Such a fundamental right arises first from Article 10(1) of the ECHR, which provides for the freedom to receive and impart
         information and ideas, which is part of the freedom of opinion.  This right is also enshrined in Article 11(2) of the Charter
         of Fundamental Rights. 
         
         
         39
            
         According to the case-law of the European Court of Human Rights relating to Article 10(1) of the ECHR, such a right also includes
         the freedom of broadcasting, of television and of the cinema, does not vary according to the content or character of the information
         broadcast and also covers advertising. 
         
         
         40
            
         RTL points out finally that the Court has accepted that the maintenance of pluralism in the audiovisual field is linked to
         the freedom of expression ensured by Article 10 of the ECHR, which is one of the fundamental rights guaranteed by the Community
         legal order. 
         
         
         41
            
         In that regard, RTL submits that the eighth recital in the preamble to Directive 89/552 states that the right freely to broadcast
         and distribute television programmes, enshrined in that directive and guaranteed as regards the freedom to provide series
         by Article 59 of the EC Treaty (now, after amendment, Article 49 EC), is also a specific manifestation in Community law of
         a more general principle, namely the freedom of expression guaranteed by Article 10(1) of the ECHR. 
         
         
         42
            
         RTL maintains that the freedom of a producer to make television programmes which include advertising breaks is part, secondly,
         of artistic freedom, a fundamental right of the Community legal order which covers both the creation of a work and its broadcasting
         or transmission. 
         
         
         43
            
         RTL concludes from this that the restrictions in respect of advertising contained in Article 11(3) of Directive 89/552 with
         regard to the broadcasting of the television films at issue in the main proceedings interfere with both broadcasting freedom
         and artistic freedom. 
         
         
         44
            
         The question therefore arises whether the restrictions on those two fundamental freedoms by the regulation of advertising
         at issue in the main proceedings can be justified under Community law. 
         
         
         45
            
         RTL claims that it follows from the Court's case-law that restrictions on fundamental rights can be justified in Community
         law only to the extent to which they are appropriate, necessary and proportionate for the purpose of attaining a lawful objective.
          It is clear also from the case-law that restrictions on fundamental rights must be clearly defined, failing which they must
         be construed narrowly. 
         
         
         46
            
         Those principles also accord with the case-law of the European Court of Human Rights concerning, in particular, Article 10(2)
         of the ECHR, under which a restriction which lacks clarity must be construed strictly. 
         
         
         47
            
         With particular regard to the consideration of the justification for the restriction at issue in the main proceedings, RTL
         claims that the protection of the artistic integrity of films as audiovisual works sought by the restrictions on advertising
         cannot be imposed on RTL since it is itself the creator of the works at issue in the main proceedings, protection of which
         it does not seek since they were specifically designed to be interrupted by advertising.  The case therefore does not involve
         protection of the rights of others under Article 10(2) of the ECHR. 
         
         
         48
            
         It follows that, in order to ensure a construction in conformity with the Treaty, the scope of the protection of the work
         provided by Article 11(3) of Directive 89/552 must be understood, in so far as concerns television films, as meaning, in particular,
         that it applies only to the extent to which it meets the wishes of the creators of the films, and therefore of those entitled
         to exercise the fundamental rights. 
         
         
         49
            
         RTL concludes that the protection of work under Article 11(3) of Directive 89/552 does not apply when those concerned have
         made, from the outset, films produced for television which include advertising breaks. 
         
         
         50
            
         The NLM, the United Kingdom Government and the Commission contend that the provision in which feature and television films
         are subject to stricter standards in respect of advertising breaks was expressly retained through the most recent revision
         of Directive 89/552, and that, therefore, those two types of films should be treated in the same way in that regard.  The
         wording of Article 11(3) of Directive 89/552 can no longer be construed otherwise. 
         Reply of the Court
         
         
         51
            
         At the outset, it is appropriate to point out that Chapter IV of Directive 89/552 lays down provisions in respect of television
         advertising, sponsorship and teleshopping.  Among those provisions is Article 11 regulating the frequency of advertising breaks.
         
         
         
         52
            
         Under Article 11(1) of Directive 89/552 television advertising must, in principle, be inserted between programmes.  However,
         advertising may be inserted during programmes on condition that certain principles are observed, namely that the advertising
         breaks do not adversely affect either the integrity or the value of the programmes, that they take account, particularly,
         of the nature and duration of the programme and that they do not prejudice the rights of the rights holders. 
         
         
         53
            
         The particular conditions under which programmes may be interrupted by advertising are set out in Article 11(2) to (5). 
         
         
         54
            
         Under Article 11(4) a period of at least 20 minutes must separate successive advertising breaks within a programme. 
         
         
         55
            
         Article 11(3) of Directive 89/552 provides for a scheme of increased protection for audiovisual works, such as feature films
         and films made for television, namely a single advertising break per period of 45 minutes with an additional break if the
         programme's duration is at least 20 minutes longer than two or more complete periods of 45 minutes. 
         
         
         56
            
         However, Article 11(3) of Directive 89/552 lays down an exception for series, serials, light entertainment programmes and
         documentaries, which are therefore covered by the abovementioned rule in Article 11(4). 
         
         
         57
            
         RTL maintains that films made for television which provide, from their conception, for breaks for the insertion of advertising
         do not come within the meaning of  
         films made for television in Article 11(3) of Directive 89/552. 
         
         
         58
            
         Such a construction conflicts with both the wording of that provision and its history. 
         
         
         59
            
         The wording of Article 11(3) of Directive 89/552 is unambiguous.  There is nothing in it which permits a distinction to be
         drawn for a category of films made for television which, on the ground that they provide from their conception for the insertion
         of advertising breaks, do not come within the meaning of  
         films made for television. 
         
         
         60
            
         That is also confirmed by the history of Article 11(3), as recalled in particular by the national court.  The amendment to
         that provision proposed by the Commission, which was intended to exclude films made for television from the provision's scheme,
         was not accepted by the Council.  That proposal was based precisely on the consideration that, in such films, natural breaks
         can be provided from the conception of the film, enabling advertising to be inserted without threatening the integrity of
         the work. 
         
         
         61
            
         The construction of Article 11(3) of Directive 89/552 advocated by RTL is likewise not required by its purpose. 
         
         
         62
            
         It follows from the 27th recital in the preamble to Directive 89/552, as well as from Article 11(1) thereof, that Article 11
         is intended to establish a balanced protection of the financial interests of the television broadcasters and advertisers,
         on the one hand, and the interests of the rights holders, namely the writers and producers, and of consumers as television
         viewers, on the other. 
         
         
         63
            
         That aim is clear also from paragraphs 245 and 246 of the Explanatory Report accompanying the European Convention, which was
         drafted at the same time as Directive 89/552 and is referred to in the fourth recital in its preamble (see, to that effect,
         Joined Cases C-320/94, C-328/94, C-329/94, C-337/94, C-338/94 and C-339/94  
          RTI and Others  [1996] ECR I-6471, paragraph 33). 
         
         
         64
            
         Even were it true, as RTL maintains, that for the films at issue such an objective, in so far as it relates to the protection
         of the interests of television broadcasters and those of the rights holders, is irrelevant since such protection is not claimed
         in this case, there none the less remains another essential aspect of that objective, namely the protection of consumers,
         as viewers, from excessive advertising, which is clearly relevant in this case. 
         
         
         65
            
         RTL's suggested construction disregards this aspect, which is none the less essential, of the objective of balanced protection
         sought by Article 11 of Directive 89/552.  In addition, as regards the system of increased protection under Article 11(3),
         the protection of television viewers is specifically of particular importance. 
         
         
         66
            
         Such a construction also risks depriving the increased protection conferred by that provision of its substance since it would
         enable television broadcasters easily to circumvent that protection by buying and producing only films which include, from
         their conception, breaks for the insertion of advertising. 
         
         
         67
            
         Finally, a construction under which the system of increased protection under Article 11(3) of Directive 89/552 applies to
         films made for television, such as those at issue in the main proceedings, does not lead to a result which is contrary to
         fundamental rights. 
         
         
         68
            
         Admittedly, such increased protection may amount to a restriction on the freedom of expression as enshrined in Article 10(1)
         of the ECHR, to which the eighth recital in the preamble to Directive 89/552 refers. 
         
         
         69
            
         Such a restriction appears, however, to be justified under Article 10(2) of the ECHR. 
         
         
         70
            
         The restriction at issue pursues a legitimate aim involving  
         the protection of the ... rights of others within the meaning of that provision, namely the protection of consumers as television viewers, as well as their interest
         in having access to quality programmes.  Those objectives may justify measures against excessive advertising. 
         
         
         71
            
         The Court has, moreover, already held that the protection of consumers against abuses of advertising or, as an aim of cultural
         policy, the maintenance of a certain level of programme quality are objectives which may justify restrictions by the Member
         States on freedom to provide services in relation to television advertising (see Case C-288/89  
          Collectieve Antennevoorziening Gouda  [1991] ECR I-4007, paragraph 27, and Case C-6/98  
          ARD  [1999] ECR I-7599, paragraph 50). 
         
         
         72
            
         With regard to the proportionality of the restriction at issue, it is appropriate to point out that this does not relate to
         the content of the advertising, is not a prohibition but only a limit on frequency applying to every operator and, in principle,
         leaves broadcasters free to decide the timing (see paragraph 249 of the Explanatory Report accompanying the European Convention)
         and, within the confines of Article 18 of Directive 89/552, the length of the advertising breaks. 
         
         
         73
            
         It is also clear from the case-law of the European Court of Human Rights on Article 10(2) of the ECHR that national authorities
         have a discretion in deciding whether there is a pressing social need capable of justifying a restriction on freedom of expression.
          According to that case-law, such a discretion is particularly essential in commercial matters and especially in a field as
         complex and fluctuating as advertising (see  
          VGT Verein gegen Tierfabriken  v  
          Switzerland , judgment of the ECHR of 28 June 2001, Reports of Judgments and Decisions 2001-VI, paragraphs 66 to 70). 
         
         
         74
            
         In view of the foregoing, the answer to the first question must be that films which have been made for television and which
         provide, from their conception, for breaks for the insertion of advertising are covered by the term  
         films made for television in Article 11(3) of Directive 89/552.  
         The second, third and fourth questions
         
         
         75
            
         By its second, third and fourth questions, which it is appropriate to examine together, the Niedersächsisches Oberverwaltungsgericht
         is asking the Court, in essence, what must be the connections between films to enable them to come within the exemption provided
         for  
         series in Article 11(3) of Directive 89/552. 
         Observations submitted to the Court
         
         
         76
            
         RTL submits that the term  
         series must, first, be construed with regard to the guarantee of the freedom to provide services. 
         
         
         77
            
         In that regard, RTL observes that, according to the Court's case-law, the primary objective of Directive 89/552 is to ensure
         freedom to provide services, in particular freedom to broadcast television programmes. 
         
         
         78
            
         It follows in particular from that case-law that, since the first sentence of Article 11(3) of Directive 89/552 contains a
         restriction on freedom to broadcast television programmes, which is not clearly worded ─ since, among other things, the directive
         does not indicate clearly under what conditions the broadcasting of television films, in so far as such films form a series,
         is not subject to the restriction of the 45-minute period between advertising breaks ─ it must be construed strictly, in accordance
         with the directive's aim.   The term  
         series must for that reason be construed as broadly as possible. 
         
         
         79
            
         With regard to a literal construction of Article 11(3) of Directive 89/552 in its various language versions, RTL maintains
         that an analysis of its various language versions shows that it is not univocal but admits of many meanings. 
         
         
         80
            
         The German term  
         Reihe (
         feuilleton in the French version) corresponds, according to RTL, to such a variety of translations that a clear and uniform definition
         is impossible. 
         
         
         81
            
         In order to interpret that provision, it is therefore appropriate, in accordance with the Court's case-law, to consider the
         context and the objective pursued by the relevant legislation. 
         
         
         82
            
         A systematic construction indicates also that the terms  
         series and   
         serial, since they are mentioned side by side, must have separate meanings. 
         
         
         83
            
         To come within the meaning of  
         series it is sufficient that several television films with independent plots are broadcast regularly in a certain time slot and
         that they are connected by other criteria of form and concept and by a common general theme, for example, the representation
         of the widest variety of relationship crises. 
         
         
         84
            
         So far as concerns, finally, the interpretation of Article 11(3) of Directive 89/552 in the light of the directive's aims,
         RTL argues that too restrictive a construction of the term  
         series would adversely affect the possibilities of financing and would therefore be contrary to one of the objectives of that directive,
         namely the promotion of European audiovisual productions. 
         
         
         85
            
         RTL claims that the term  
         series must, secondly, be construed in the light of the fundamental Community rights of the freedom of television broadcasting and
         artistic freedom.  
         
         
         86
            
         In that regard, RTL argues that the making of several films as a series, even if they have only a tenuous thematic link, incorporating
         within them advertising slots, comes within the protection under Community law of the fundamental rights relating to those
         freedoms.  A narrow construction of the term  
         series would seriously undermine those rights. 
         
         
         87
            
         Furthermore, such a narrow construction involving the application of the strict limits on advertising breaks laid down by
         Article 11(3) is not justified by the pursuit of lawful interests. 
         
         
         88
            
         RTL set aside the justification based on protection of a work's integrity in its observations concerning the first question
         referred, essentially on the ground that this case does not involve protection of the rights of others to the integrity of
         work (see paragraph 47 of this judgment).   RTL submits further that neither protection of the quality of television output
         nor consumer protection can constitute justification. 
         
         
         89
            
         RTL asserts in particular that, within the framework of the pluralist regime of the audiovisual, programme quality is not
         in itself a general legitimate interest which can justify strict limits on advertising for television films since advertising
         breaks have, in themselves, no effect on a film's quality.  In addition, broadcasting and press freedom precludes the imposition
         on television broadcasters of a certain standard of programmes. 
         
         
         90
            
         RTL points out also that a strict construction of the term  
         series is neither appropriate nor necessary to guarantee effective protection of consumers. 
         
         
         91
            
         Consumers have a vast choice between different channels showing more or less advertising.  Consumers choosing private channels
         do so knowing that there is a greater number of advertising breaks on such channels than on others, such as public or specialised
         cultural channels.  Such freedom of choice is, moreover, in itself a regulatory mechanism, because, if consumers took the
         view that the programmes on a private channel carry too much advertising, the viewing figures of that channel would fall,
         forcing it to adapt such programmes to consumers' wishes. 
         
         
         92
            
         RTL argues further that in this case it is not necessary to impose the more rigorous rule of the 45-minute period flowing
         from a strict construction of the term  
         series since there are less restrictive means to ensure the effective safeguarding of consumers' freedom of choice, among others
         a duty to inform, that is to say, an obligation to state the length and frequency of advertising in the magazines which publish
         television schedules or at the start of the programmes concerned. 
         
         
         93
            
         In that regard, RTL refers by analogy to the Court's case-law on the free movement of goods from which it follows that, in
         order to safeguard consumers' freedom of choice, it is sufficient as a general rule to inform them about products, for example
         as to the raw materials used in their manufacture. 
         
         
         94
            
         The NLM, the United Kingdom Government and the Commission maintain that a definition of the term  
         series based on criteria of form cannot be upheld.  Accepting such a definition would render meaningless the special protection
         of feature films and films made for television, since it would be easy to construct a formal connection between any type of
         film and thereby to evade that protection. 
         
         
         95
            
         It is appropriate, on the other hand, to require there to be a substantial connection between the programmes from the point
         of view of content, nature or theme for them to be regarded as a serial or series. 
         
         
         96
            
         The United Kingdom Government asserts in particular that, in the same way as is set out in the ITC's guidance note, the most
         genuine links between programmes are those which result from the storyline, that is to say the script carrying on from one
         episode to the next and/or some of the characters, at least, reappearing from one episode to another. 
         Reply of the Court
         
         
         97
            
         It is appropriate to state at the outset that neither Directive 89/552 nor the documents relevant to its construction, such
         as the preparatory documents or the Explanatory Report accompanying the European Convention, shed any light on the criteria
         defining the respective scope of the expressions  
         films made for television and  
         series in Article 11(3) of Directive 89/552. 
         
         
         98
            
         Nor is a construction according to the usual meaning of those expressions or based on a comparison of the language versions
         of Directive 89/552 any more capable of providing an unambiguous reply to that question. 
         
         
         99
            
         The provision in question must therefore be construed by reference to the purpose and general scheme of the rules of which
         it forms part (see, to that effect, in particular, Case C-257/00  
          Givane and Others  [2003] ECR I-345, paragraph 37). 
         
         
         100
            
         As is clear from paragraph 62 of the present judgment, the purpose of Article 11 of Directive 89/552 is to establish a balanced
         protection of the interests of television broadcasters and advertisers, on the one hand, and those of the rights holders and
         consumers as television viewers, on the other. 
         
         
         101
            
         For audiovisual works such as, in particular, films made for television, Article 11(3) of Directive 89/552 is intended to
         provide television viewers with increased protection against excessive advertising. 
         
         
         102
            
         A conception based essentially on criteria of form defining the term  
         series, as advanced by RTL, cannot be upheld since it would undermine that purpose. 
         
         
         103
            
         Such a conception would make it possible for the increased protection to be circumvented and would therefore risk rendering
         it illusory.  Television broadcasters could easily construct a common framework based on form linking films of great diversity
         on the basis, inter alia, of the same broadcasting slot, of a broadcast under the same title or theme, or of a presentation
         before or after the programmes. 
         
         
         104
            
         Links based on form such as those suggested by RTL cannot therefore be sufficient for the purposes of the definition of the
         term  
         series within the meaning of Article 11(3) of Directive 89/552. 
         
         
         105
            
         It follows that the term  
         series requires links of substance, that is to say, common elements which relate to the content of the films concerned. 
         
         
         106
            
         In order to circumscribe further the nature of the criteria defining the term  
         series, it is necessary to identify the reasons why Directive 89/552 provides less protection for television viewers against excessive
         advertising during programmes such as series. 
         
         
         107
            
         As the Advocate General points out in paragraph 51 of his Opinion, that lower level of protection can be explained by the
         fact that series, particularly because of the basic elements linking the different films which constitute them, such as, for
         example, the development of the same story or the reappearance of one or more characters, require less sustained concentration
         on the part of the television audience than do films. 
         
         
         108
            
         In view of the foregoing, the reply to the second, third and fourth questions must be that the connections which must link
         films in order that they can come within the exception laid down for  
         series by Article 11(3) of Directive 89/552 must relate to the content of the films concerned, such as, for example, the development
         of the same story from one episode to another or the reappearance of one or more characters in different episodes. 
         
         Costs
         109
            
         The costs incurred by the United Kingdom Government and the Commission, which have submitted observations to the Court, are
         not recoverable.  Since these proceedings are, for the parties to the main proceedings, a step in the proceedings pending
         before the national court, the decision on costs is a matter for that court. 
         
         On those grounds, 
         
         
         
            
            THE COURT (Fifth Chamber),
         
         
         in answer to the questions referred to it by the Niedersächsisches Oberverwaltungsgericht by order of 15 June 2001, hereby
         rules: 
         
            
            1.
             Films which have been made for television and which provide, from their conception, for breaks for the insertion of advertising
            are covered by the term  
            films made for television in Article 11(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, as
            amended by Directive 97/36/EC of the European Parliament and of the Council of 30 June 1997. 
            
            
            2.
             The connections which must link films in order that they can come within the exception laid down for  
            series by Article 11(3) of Directive 89/552 must relate to the content of the films concerned, such as, for example, the development
            of the same story from one episode to another or the reappearance of one or more characters in different episodes. 
            
            
                  Timmermans
               
               
                  Edward 
               
               
                  Jann 
               
            
                  
               
               
                  
               
               
                  
               
            
                  
               
               
                  
               
               
                  
               
            
                  
               
               
                  
               
               
                  
               
            
                  
               
               
                  
               
               
                  
               
            
            
            
            
            
            
            
            
         
         
         Delivered in open court in Luxembourg on 23 October 2003. 
         
         
         
         
                  R. Grass
               
               
                  V. Skouris  
               
            
         
         
         
                  Registrar
               
               
                  President 
               
            
      
      
          1 –
            
             Language of the case: German.