Société d'Importation Edouard Leclerc-Siplec v TF1 Publicité SA and M6 Publicité SA.
Date: 1995-02-09
9 Pursuant to Article 177 of the Treaty, where a question on the interpretation of the Treaty or of subordinate acts of the institutions of the Community is raised before any court or tribunal of a Member State, that court or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court of Justice to give a ruling thereon.
10 In the context of that procedure for making a reference, the national court, which alone has direct knowledge of the facts of the case, is in the best position to appreciate, with full knowledge of the matter before it, the necessity for a preliminary ruling to enable it to give judgment (see the judgments in Case 83/78 Pigs Marketing Board v Redmond [1978] ECR 2347, Case C-186/90 Durighello v Istituto Nazionale Della Previdenza Sociale [1991] ECR I-5773 and Case C-83/91 Meilicke v ADV/ORGA [1992] ECR I-4871, paragraph 23).
11 Consequently, where the questions put by national courts concern the interpretation of a provision of Community law, the Court is, in principle, bound to give a ruling (see the judgment in Case C-231/89 Gmurzynska-Bscher v Oberfinanzdirektion Koeln [1990] ECR I-4003, paragraph 20).
12 The Court has nonetheless considered that, in order to determine whether it has jurisdiction, it is necessary to examine the conditions in which the case has been referred to it by the national court. The spirit of cooperation which must prevail in preliminary ruling proceedings requires the national court to have regard to the function entrusted to the Court of Justice, which is to contribute to the administration of justice in the Member States and not to give opinions on general or hypothetical questions (judgments in Case 149/82 Robards v Insurance Officer [1983] ECR 171 and Meilicke, cited above, paragraph 25).
18 It has been consistently held that all rules enacted by Member States which are capable of hindering, directly or indirectly, actually or potentially, intra-Community trade are to be considered as measures having an effect equivalent to quantitative restrictions (judgment in Case 8/74 Procureur du Roi v Dassonville [1974] ECR 837, paragraph 5).
21 The application to products from other Member States of national provisions restricting or prohibiting certain selling arrangements is not such as to hinder directly or indirectly, actually or potentially, trade between Member States within the meaning of the Dassonville judgment, cited above, so long as those provisions 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. Provided that those conditions are fulfilled, the application of such rules to the sale of products from another Member State meeting the requirements laid down by that State is not by nature such as to prevent their access to the market or to impede access any more than it impedes the access of domestic products. Such rules therefore fall outside the scope of Article 30 of the Treaty (see the judgments in Joined Cases C-267 and 268/91 Keck and Mithouard [1993] ECR I-6097, paragraphs 16 and 17, and Case C-292/92 Huenermund and Others [1993] ECR I-6787, paragraph 21).
22 A provision such as that at issue in the main proceedings concerns selling arrangements since it prohibits a particular form of promotion (televised advertising) of a particular method of marketing products (distribution).
25 Articles 85 and 86 of the Treaty per se are concerned only with the conduct of undertakings and not with national legislation. The Court has consistently held, however, that Articles 85 and 86 of the Treaty, in conjunction with Article 5, require the Member States not to introduce or maintain in force measures, even of a legislative nature, which may render ineffective the competition rules applicable to undertakings. Such would be the case, the Court has held, if a Member State were to require or favour the adoption of agreements, decisions or concerted practices contrary to Article 85 or to reinforce their effects, or to deprive its own legislation of its official character by delegating to private traders responsibility for taking decisions affecting the economic sphere (see the judgment in Case 267/86 Van Eycke v ASPA [1988] ECR 4769, paragraph 16, and, most recently, the judgment in Joined Cases C-401 and 402/92 Tankstation 't Heukske and Boermans [1994] ECR I-2199, paragraph 16).
28 The main purpose of the Directive, which was adopted on the basis of Articles 57(2) and 66 of the Treaty, is to ensure freedom to provide television broadcasting services.
29 To that end, it lays down, according to the thirteenth and fourteenth recitals in the preamble, minimum rules to govern broadcasts emanating from and intended for reception within the Community and in particular those intended for reception in another Member State.
44 Furthermore, the attainment of the Directive' s objective of ensuring freedom to provide broadcasting services complying with the minimum rules it lays down is in no way affected where Member States impose stricter rules on the television broadcasters under their jurisdiction in circumstances other than those set out in Article 19.