Arbeitsgemeinschaft Deutscher Rundfunkanstalten (ARD) v PRO Sieben Media AG, supported by SAT 1 Satellitenfernsehen GmbH, Kabel 1, K 1 Fernsehen GmbH.
Date: 1999-10-28
27 The Court has held that, when the text of a Community provision contains, in its different language versions, considered in the light of the history of the provision and the preparatory documents, on which the parties have based their arguments in their observations submitted to the Court, too many contradictory and ambiguous elements to provide the answer, it is necessary, in order to interpret that provision, to consider its context and the objective of the rules in question (Case 11/76 Netherlands v Commission [1979] ECR 245, paragraph 6).
28 As the Court found in Case C-412/93 Leclerc-Siplec v TF1 Publicité and M6 Publicité [1995] ECR I-179, paragraph 28, and in Joined Cases C-34/95, C-35/95 and C-36/95 KO v De Agostini and TV-Shop [1997] ECR I-3843, paragraph 3, the main purpose of Directive 89/552, which was adopted on the basis of Article 57(2) (now, after amendment, Article 47(2) EC) and Article 66 (now Article 55 EC) of the EEC Treaty, is to ensure freedom to provide television broadcasting services.
29 A provision which imposes a restriction, in the matter of the provision of services, on an activity involving the exercise of a fundamental freedom such as the freedom to provide television broadcasting services must express that restriction in clear terms.
30 It follows that, when a provision of Directive 89/552 imposes a restriction on broadcasting and on the distribution of television broadcasting services, and the Community legislature has not drafted that provision in clear and unequivocal terms, it must be given a restrictive interpretation.
45 The Court has already held that legislation which prohibits televised advertising within a certain sector concerns selling arrangements since it prohibits a particular form of promotion of a particular method of marketing products (Leclerc-Siplec, cited above, paragraph 22).
47 In paragraph 16 of its judgment in Joined Cases C-267/91 and C-268/91 Keck and Mithouard [1993] ECR I-6097, the Court held that national provisions restricting or prohibiting certain selling arrangements are not caught by Article 30 of the Treaty so long as they apply to all relevant 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.
49 As regards the compatibility with Article 59 of the Treaty of national rules imposing the net principle, which a Member State may prescribe by exercising its right under Article 3(1) of Directive 89/552, as amended, it must be observed that, since such rules limit the possibility for television broadcasters established in the State of transmission to broadcast advertisements for the benefit of advertisers established in other Member States, they involve a restriction on the freedom to provide services.
50 It must, however, be pointed out 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 constitute overriding reasons relating to the general interest which may justify restrictions on freedom to provide services (see, in particular, Case C-288/89 Collectieve Antennevoorziening Gouda and Others v Commissariaat voor de Media [1991] ECR I-4007, paragraph 27).
51 As regards the proportionality of the restriction at issue, it is settled case-law that requirements imposed on the providers of services must be appropriate to ensure achievement of the intended aim and must not go beyond what is necessary in order to achieve that aim (see, in particular, Collectieve Antennevoorziening Gouda, cited above, paragraph 15, and Case C-384/93 Alpine Investments v Minister van Financiën [1995] ECR I-1141, paragraph 45).