Konsumentombudsmannen (KO) v De Agostini (Svenska) Förlag AB (C-34/95) and TV-Shop i Sverige AB (C-35/95 and C-36/95).
Date: 1997-07-09
3 As the Court held in Case C-412/93 Leclerc-Siplec [1995] ECR I-179, the main purpose of the Directive, which was adopted on the basis of Articles 57(2) and 66 of the EEC Treaty, is to ensure freedom to provide television broadcasting services.  As is clear from the 13th and 14th recitals of the preamble to the Directive, it lays down minimum rules for broadcasts which emanate from the Community and which are intended to be received within it (paragraphs 28 and 29).
26 It follows that the fields coordinated by the Directive are coordinated only in so far as television broadcasting, as defined in Article 1(a), is concerned as such.
27 In order to ensure freedom to provide television broadcasts, Article 2 of the Directive provides that all broadcasts emanating from the Community and intended for reception within the Community, in particular those intended for reception in another Member State, must comply with the legislation of the originating Member State applicable to broadcasts intended for the public in that Member State and with the provisions of the Directive.  The corollary of this is that, subject to the power accorded to them by Article 2(2), Member States must ensure freedom of reception and must not impede retransmission on their territory of television broadcasts coming from other Member States for reasons which fall within the fields coordinated by the Directive.
29 It must also be borne in mind that, according to the judgment of the Court in Case C-222/94 Commission v United Kingdom [1996] ECR I-4025, paragraph 42, a Member State's jurisdiction ratione personae over a broadcaster can be based only on the broadcaster's connection to that State's legal system, which in substance overlaps with the concept of establishment as used in the first paragraph of Article 59 of the Treaty, the wording of which presupposes that the supplier and the recipient of a service are `established' in two different Member States.
34 Thus the Directive does not in principle preclude application of national rules with the general aim of consumer protection provided that they do not involve secondary control of television broadcasts in addition to the control which the broadcasting Member State must carry out.
39 In paragraph 22 of its judgment in Leclerc-Siplec, cited above, the Court held that legislation which prohibits television advertising in a particular sector concerns selling arrangements for products belonging to that sector in that it prohibits a particular form of promotion of a particular method of marketing products.
40 In Joined Cases C-267/91 and C-268/91 Keck and Mithouard [1993] ECR I-6097, at paragraph 16, the Court held that national measures restricting or prohibiting certain selling arrangements are not covered by Article 30 of the Treaty, so long as they apply to all traders operating within the national territory and so long as they affect in the same manner, in law and in fact, the marketing of domestic products and of those from other Member States.
45 In the latter case, it is for the national court to determine whether the ban is necessary to satisfy overriding requirements of general public importance or one of the aims listed in Article 36 of the EC Treaty if it is proportionate to that purpose and if those aims or requirements could not have been attained or fulfilled by measures less restrictive of intra-Community trade.
46 Further, according to settled case-law, fair trading and the protection of consumers in general are overriding requirements of general public importance which may justify obstacles to the free movement of goods (Case 120/78 Rewe v Bundesmonopolverwaltung für Branntwein (`Cassis de Dijon') [1979] ECR 649, paragraph 8).
48 As was held in Case 352/85 Bond van Adverteerders [1988] ECR 2085, advertising broadcast for payment by a television broadcaster established in one Member State for an advertiser established in another Member State constitutes provision of a service within the meaning of Article 59 of the Treaty.
51 Where the rules applicable to services have not been harmonized, restrictions on the freedom guaranteed by the Treaty in this field may result from application of national rules affecting any person established in the national territory to persons providing services established in the territory of another Member State who already have to satisfy the requirements of that State's legislation (Case C-288/89 Collectieve Antennevoorziening Gouda [1991] ECR I-4007, paragraph 12).
53 Further, according to settled case-law, fair trading and the protection of consumers in general are overriding requirements of public interest which may justify restrictions on freedom to provide services (see, in particular, Collectieve Antennevoorziening Gouda, cited above, paragraph 14, and Case C-384/93 Alpine Investments [1995] ECR I-1141).