Commission of the European Communities v French Republic.
Date: 2004-07-13
22. Article 59 of the Treaty requires the elimination of any restriction on the freedom to provide services, even if it applies to national providers of services and to those of other Member States alike, when it is liable to prohibit or otherwise impede the activities of a provider of services established in another Member State where he lawfully provides similar services (see to that effect Case C-76/90 Säger  [1991] ECR I-4221, paragraph 12, and Case C-58/98 Corsten  [2000] ECR I-7919, paragraph 33). Moreover, freedom to provide services is enjoyed by both providers and recipients of services (see to that effect Joined Cases 286/82 and 26/83 Luisi and Carbone  [1984] ECR 377, paragraph 16).
23. The freedom to provide services may, however, in the absence of Community harmonisation measures, be limited by national rules justified by the reasons mentioned in Article 56(1) of the EC Treaty, read together with Article 66, or for overriding requirements of the general interest (see, to that effect, Case C-243/01 Gambelli and Others  [2003] ECR I-0000).
24. In that context, it is for the Member States to decide on the degree of protection which they wish to afford to public health and on the way in which that protection is to be achieved. They may do so, however, only within the limits set by the Treaty and must, in particular, observe the principle of proportionality (see Joined Cases C-1/90 and C-176/90 Aragonesa de Publicidad Exterior and Publivía  [1991] ECR I-4151, paragraph 16), which requires that the measures adopted be appropriate to secure the attainment of the objective which they pursue and not go beyond what is necessary in order to attain it (see, in particular, Säger , paragraph 15; Joined Cases C-369/96 and C-376/96 Arblade and Others  [1999] ECR I-8453, paragraph 35; Corsten , paragraph 39; and Case C-390/99 Canal Satélite Digital  [2002] ECR I-607, paragraph 33).
30. Second, the French rules on television advertising pursue an objective relating to the protection of public health within the meaning of Article 56(1) of the Treaty, as the Advocate General stated in paragraph 69 of his Opinion. Measures restricting the advertising of alcoholic beverages in order to combat alcohol abuse reflect public health concerns (see Case 152/78 Commission  v France  [1980] ECR 2299, paragraph 17; Aragonesa de Publicidad Exterior and Publivía , paragraph 15; and Case C-405/98 Gourmet International Products  [2001] ECR I-1795, paragraph 27).
33. As far as concerns the argument that the French rules on television advertising are inconsistent, since they apply only to alcoholic beverages whose alcohol content exceeds 1.2°, concern only television advertising, and do not apply to advertising for tobacco, it is sufficient to reply that that option lies within the discretion of the Member States to decide on the degree of protection which they wish to afford to public health and on the way on which that protection is to be achieved (see Aragonesa de Publicidad Exterior and Publivía , paragraph 16).
34. As regards the argument that the rules mean in practice that whole events cannot be broadcast, although there are less restrictive measures to ensure the protection of public health, it must be observed that, for the reasons given by the Advocate General in paragraphs 103 and 104 of his Opinion, having regard, first, to the technical means currently available and, second, to their excessive cost, there is not currently any measure which is less restrictive which can exclude or conceal indirect television advertising for alcoholic beverages resulting from hoardings visible during the retransmission of sporting events. Since that advertising appears on screen only sporadically and only for a few seconds, it is not possible either to control its content or to insert warnings at the same time as the appearance of the advertisement on the screen on the dangers resulting from an excessive consumption of alcohol.
35. As regards the argument that the French rules on television advertising have the result that television advertising for alcoholic beverages is authorised where the French audience is overall very high (multinational events), but prohibited where the French audience is not so high (bi-national events), it is sufficient to observe that by limiting the prohibition to indirect advertising broadcast during the retransmission of sporting events which specifically target a French audience and when the advertising is therefore capable of specifically targeting that audience alone, the rules can only make the measure less prejudicial to the freedom to provide services and, therefore, more proportionate to the objective pursued.
36. The same is true as regards the argument that the French rules on television advertising at issue are, in practice, only applied to advertising for alcoholic beverages marketed in France. Limiting the prohibition at issue to advertising for products which are marketed in France, and thus restricting the scope of that prohibition, reduces the impediment to the freedom to provide services and makes it therefore more proportionate to the objective pursued.
37. As regards the argument that advertising for alcoholic beverages is permitted in certain Member States, it must be observed that, as the Advocate General stated in paragraph 106 of his Opinion, the fact that one Member State imposes less strict rules than another Member State does not mean that the latter’s rules are disproportionate (Case C-384/93 Alpine Investments  [1995] ECR I-1141, paragraph 51).
38. As regards the argument that the application of the French rules on advertising might duplicate controls already carried out in the context of the procedures in force in another Member State, it must be observed that, as the Advocate General states in paragraph 105 of his Opinion, if the Member State in which the sporting event is taking place prohibits the transmission of the images of hoardings displaying advertising for alcoholic beverages, that event can be broadcast in France without the need for controls. If, on the other hand, such a ban does not exist in the Member State in which the sporting event is taking place, the control imposed by the French authorities will be the only one.
39. Finally, as far as concerns the argument that some of the rules are ambiguous, it is sufficient to state that for the reasons stated by the Advocate General in paragraph 91 of his Opinion, the provisions in question are sufficiently clear and precise. The rules on television advertising at issue define with sufficient precision, for the broadcasters concerned, the cases in which the retransmission of sporting events is prohibited.