–

Kansallinen audiovisuaalinen instituutti (KAVI), by E. Lauri and L. Pekkala,

–

the Finnish Government, by H. Leppo, acting as Agent,

–

the European Commission, by J. Ringborg, I. Söderlund and F. Thiran, acting as Agents,

1

This request for a preliminary ruling concerns the interpretation of Articles 34 and 36 TFEU.

2

The request has been made in proceedings brought by Booky.fi Oy (‘Booky.fi’) concerning the decision of the Kansallinen audiovisuaalinen instituutti (KAVI) (National Audiovisual Institute, Finland) requiring Booky.fi to indicate, in the information relating to the recordings of audiovisual programmes offered for sale via its online store, the age limit below which those programmes cannot be viewed, based on the classification laid down in the Finnish legislation.

3

Article 17 of the Convention on the Rights of the Child, which was adopted by the United Nations General Assembly on 20 November 1989 (United Nations Treaty Series, Vol. 1577, p. 3) and entered into force on 2 September 1990, provides:

‘States Parties recognise the important function performed by the mass media and shall ensure that the child has access to information and material from a diversity of national and international sources, especially those aimed at the promotion of his or her social, spiritual and moral well-being and physical and mental health. To this end, States Parties shall:

…

4

Recitals 59 and 104 of Directive 2010/13/EU of the European Parliament and of the Council of 10 March 2010 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services (Audiovisual Media Services Directive) (OJ 2010 L 95, p. 1), state:

…

5

Paragraph 1 of the Kuvaohjelmalaki (710/2011) (Law on audiovisual programmes (710/2011)) of 17 June 2011 (‘the Law on audiovisual programmes’) provides that the purpose of that law is to protect children from audiovisual programmes that are harmful to their development.

6

In the words of Paragraph 2(1) of that law:

‘This Law shall apply to the offering and supervision of an audiovisual programme in Finland where it is offered on television or via an on-demand service to which the Laki sähköisen viestinnän palveluista (917/2014) [(Law on electronic communications services (917/2014)] applies. It shall apply to the offering and supervision of audiovisual programmes on other media in Finland where:

7

Paragraph 3(3) of the Law on audiovisual programmes defines the offering of an audiovisual programme as its being made available to the public for viewing.

8

Paragraph 3(5) of that law provides that classification is to mean the determination, based on the viewing of the audiovisual programme, of whether the programme may have a harmful effect on the development of a child below a certain age.

9

Paragraph 5(1) of that law provides:

‘Unless otherwise provided for in Paragraphs 9 to 11, an audiovisual programme may be offered only if it has been classified in accordance with Paragraph 16(1) and if it contains or is accompanied by a clearly visible indication of the age limit and content or, in the case of an audiovisual programme within the meaning of Paragraph 16(3), if it contains or is accompanied by a clearly visible indication of the age limit and the content. In the case of an audiovisual programme within the meaning of Paragraph 16(2), it may be offered only if it contains or is accompanied by a clearly visible indication of the age limit of 18 years.’

10

In the words of Paragraph 6(5) of the Law on audiovisual programmes:

‘An audiovisual programme provider must, when offering programmes, provide information on the age limits and other means intended to protect children.’

11

Paragraph 9 of that law is worded as follows:

‘An audiovisual programme does not need to be classified or labelled if it:

By way of derogation from point 4 of the first subparagraph, an audiovisual programme containing only marketing material for audiovisual programmes must be classified.’

12

Paragraph 10 of that law provides:

‘An audiovisual programme does not have to be classified and labelled where it:

13

Paragraph 11(1) of the Law on audiovisual programmes provides:

‘[KAVI] may, upon application, grant authorisation for audiovisual programmes to be offered without classification or labelling pursuant to this Law at a special event organised for the purpose of offering audiovisual programmes.’

14

In the words of Paragraph 15 of that law:

‘An audiovisual programme shall be deemed to be harmful to a child’s development if it is likely to have a harmful effect on a child’s development on account of its violence or its sexual or distressing content, or in any other similar way.

The context and the manner in which the events are described in the programme must be taken into account when assessing the harmful nature of an audiovisual programme.’

15

Paragraph 16 of the Law on audiovisual programmes is worded as follows:

‘Where an audiovisual programme is harmful to the development of a child in the manner referred to in Paragraph 15, it shall, depending on its content, be classified with the age limit of 7, 12, 16 or 18 years, and a symbol describing its content must be allocated to it. Where the programme is not deemed to be harmful to the development of the child, it must be classified as being suitable to be offered for all ages.

Where a programme is explicitly intended to be offered solely to persons aged 18 years and over, it shall not be classified. Such a programme may be offered only where it contains or is accompanied by a clearly visible indication of the age limit of 18 years.

[KAVI] may approve the age limit and the symbol describing the content of the programme which have been allocated within the territory of the European Union, for the purposes of the use of that programme in Finland in accordance with this Law, without that programme being classified in Finland.’

16

According to Paragraph 19 of that law, KAVI is to be responsible for ensuring compliance with that law.

17

Paragraph 30 of that law provides that an appeal may be lodged against the classification decision adopted by KAVI.

18

Booky.fi is a Finnish undertaking which markets via its online store audiovisual programmes recorded on physical media such as DVDs and Blue-ray discs.

19

In an inspection carried out in 2018, KAVI found that Booky.fi offered for sale recordings of audiovisual programmes without providing the information relating to the permitted age limit and the content of the audiovisual programmes required by the Law on audiovisual programmes.

20

By decision of 9 July 2018, KAVI, inter alia, ordered Booky.fi to display those indications among the information relating to the recordings of programmes which it markets, then, by decision of 9 October 2018, it rejected the complaint lodged by Booky.fi against that decision.

21

Booky.fi lodged an appeal against KAVI’s decision before the Helsingin hallinto-oikeus (Administrative Court, Helsinki, Finland), which dismissed that appeal by decision of 9 December 2019. That court held that, since, in the case of an online store, the supply to the public of an audiovisual programme, within the meaning of Paragraph 5(1) of the Law on audiovisual programmes, takes place when the recording of such a programme is offered for sale or when it can be ordered by other means, the recording must include or be accompanied by the indication relating to age laid down in that law.

22

In support of the appeal against that decision which it lodged before the Korkein hallinto-oikeus (Supreme Administrative Court, Finland), the referring court in the present case, Booky.fi claims that the requirement that the audiovisual programmes which it markets in its online store must be classified and labelled in accordance with the age limits applicable in Finland, although they have already been the subject of such classification in another Member State and although indications of the age limit have already been affixed to them in accordance with the legislation of that other Member State, constitutes a measure having equivalent effect to quantitative restrictions on imports, within the meaning of Article 34 TFEU.

23

In Booky.fi’s submission, the provisions of the Law on audiovisual programmes go beyond what is necessary to attain the objective of protecting children when the supply of audiovisual programmes is exclusively aimed at adult purchasers. It maintains, moreover, that the requirement to classify, in accordance with the Finnish legislation, all recordings of audiovisual programmes offered in an online store is contrary to the principle of proportionality and that it would be less restrictive for the free movement of goods if only recordings actually imported into Finland were subject to that requirement. In that respect, Booky.fi states that it orders the recordings of audiovisual programmes which it offers in its online store from international wholesalers solely on the basis of the orders which it has received.

24

According to the referring court, the supply of recordings of audiovisual programmes via an online store comes within the concept of the supply of audiovisual programmes, within the meaning of Paragraph 5(1) of the Law on audiovisual programmes, so that an indication relating to the age limit corresponding to the classification based on that law must be included in the information relating to the recording when it is offered for sale, irrespective of the fact that the programme which it contains has also been classified by the competent body of another Member State.

25

The marketing of recordings of audiovisual programmes accompanied by age limit indications corresponding to the classification of another Member State does not permit the purchaser to be informed, at the time of sale, of the content of the audiovisual programme and of the labelling in accordance with the age limits in force in Finland, which does not allow the level of protection of the child intended by the Law on audiovisual programmes to be achieved.

26

Nonetheless, the referring court is uncertain whether, in circumstances such as those of the dispute before it, the requirement for the classification and labelling of programmes according to age laid down in that law goes beyond what is necessary to attain the objective of protection of the child intended by that law.

27

In particular, the referring court considers that the circumstances of that dispute may be distinguished from those of the case that gave rise to the judgment of 14 February 2008, Dynamic Medien (C‑244/06, EU:C:2008:85), in that, in the present case, there can be no derogation from the requirement relating to the indication of age limit provided for in the Law on audiovisual programmes, even where there is no doubt that the purchaser of the recording of the audiovisual programme has reached the age of majority.

28

The provisions of that law also differ from the German legislation at issue in the case that gave rise to the judgment of 14 February 2008, Dynamic Medien (C‑244/06, EU:C:2008:85), in that that legislation applied both to sellers of audiovisual recordings established within the national territory and to those established in other Member States, whereas that is not the case of the Law on audiovisual programmes.

29

In those circumstances, the Korkein hallinto-oikeus (Supreme Administrative Court) decided to stay the proceedings and to refer the following questions of the Court of Justice for a preliminary ruling:

30

By its first question, the referring court asks, in essence, whether Articles 34 and 36 TFEU must be interpreted as meaning that they preclude legislation of a Member State that, with the aim of protecting minors against audiovisual content likely to harm their well-being and their development, requires audiovisual programmes recorded on a physical medium and marketed via an online store to have previously been subject to an inspection procedure and classification in accordance with age limits and corresponding labelling, in accordance with the law of that Member State, including where those programmes have already been subject to such a procedure and comparable classification and labelling, in accordance with the law of another Member State.

31

The referring court also asks the Court to clarify whether it is relevant for the purposes of that assessment, first, that the national legislation in question does not provide for a derogation from such a requirement where it may be established that the purchaser of a recording covered by that legislation has reached the age of majority and, second, that that legislation applies only to programmes supplied by undertakings or traders registered or established in the Member State concerned or by an individual who is a citizen of or who has his or her habitual residence in that Member State, or where the decision to supply those programmes was taken in that Member State.

32

As a preliminary point, it must be recalled that the free movement of goods between Member States is a fundamental principle of the FEU Treaty which is expressed in the prohibition, set out in Article 34 TFEU, of quantitative restrictions on imports between Member States and all measures having equivalent effect (judgment of 18 June 2019, Austria v Germany, C‑591/17, EU:C:2019:504, paragraph 119 and the case-law cited).

33

In accordance with settled case-law, the prohibition of measures having equivalent effect to quantitative restrictions on imports laid down in Article 34 TFEU covers any measure of the Member States that is capable of hindering, directly or indirectly, actually or potentially, intra-Union trade (judgment of 18 June 2019, Austria v Germany, C‑591/17, EU:C:2019:504, paragraph 120 and the case-law cited).

34

Further, a measure, even if it has neither the object nor the effect of treating goods coming from other Member States less favourably, also falls within the scope of the concept of a ‘measure having equivalent effect to quantitative restrictions’, within the meaning of Article 34 TFEU, if it hinders access to the market of a Member State of products originating in other Member States (judgment of 18 June 2019, Austria v Germany, C‑591/17, EU:C:2019:504, paragraph 121 and the case-law cited).

35

In the present case, a measure such as that at issue in the main proceedings, under which audiovisual programmes must, in accordance with the law of the Member State in which they are marketed via an online store, have first been subject to an inspection procedure and also classification and labelling in accordance with age limits determined for the purpose of protecting minors has the effect of making the importation of recordings of audiovisual programmes originating in another Member State more restrictive and more expensive.

36

Therefore, such a measure is likely to hinder the access to the market of the Member State concerned of recordings of audiovisual programmes originating in other Member States and, in accordance with the case-law referred to in paragraphs 32 to 34 of the present judgment, it thus constitutes a measure having equivalent effect to quantitative restrictions within the meaning of Article 34 TFEU which, in principle, is incompatible with the obligations arising from that article (see, to that effect, judgment of 14 February 2008, Dynamic Medien, C‑244/06, EU:C:2008:85, paragraphs 34 and 35).

37

According to settled case-law, national legislation which constitutes a measure having equivalent effect to quantitative restrictions may nonetheless be justified by one of the public-interest grounds set out in Article 36 TFEU or by overriding requirements of general interest. In either case, the national provision must be appropriate for securing the attainment of the objective pursued and must not go beyond what is necessary in order to attain it (see to that effect, in particular, judgment of 12 November 2015, Visnapuu, C‑198/14, EU:C:2015:751, paragraph 110 and the case-law cited).

38

In the present case, it is apparent from the order for reference that the measure at issue in the main proceedings aims, as stated in Paragraph 1 of the Law on audiovisual programmes, to protect minors against audiovisual programmes the content of which is harmful to their development.

39

In that regard, it must be recalled that the protection of children is enshrined in the Charter of Fundamental Rights of the European Union, Article 24(1) of which provides that children are to have the right to such protection and care as is necessary for their well-being. It is also recognised by a number of international legal instruments, including, inter alia, the Convention on the Rights of the Child, which has been ratified by all Member States, Article 17(e) of which states that States parties are to encourage the development of appropriate guidelines for the protection of the child from information and material injurious to his or her well-being.

40

As regards, more particularly, audiovisual programmes, the EU legislature emphasised, in recital 59 of Directive 2010/13, the need to protect minors against the presence of content likely to be harmful to them, while stating, in recital 104 thereof, that such protection is a public-interest objective worthy of a high level of protection.

41

Consequently, the protection of minors against audiovisual programmes the content of which is likely to harm their well-being and their development is an overriding requirement of general interest such as to justify, in principle, a restriction on the free movement of goods (see, to that effect, judgments of 14 February 2008, Dynamic Medien, C‑244/06, EU:C:2008:85, paragraph 42 and the case-law cited, and of 19 November 2020, ZW, C‑454/19, EU:C:2020:947, paragraph 40).

42

As is apparent from paragraph 37 of the present judgment, it is still necessary to assess whether the legislation at issue in the main proceedings is appropriate for securing the attainment of the legitimate objective pursued and whether it goes beyond what is necessary in order to attain it.

43

In that regard, it is ultimately for the referring court, which has sole jurisdiction to assess the facts of the main proceedings and interpret the national legislation, to determine whether and to what extent such legislation satisfies those conditions (judgment of 7 September 2022, Cilevičs and Others, C‑391/20, EU:C:2022:638, paragraph 72 and the case-law cited). For that purpose, it is necessary to examine objectively, with the help of statistical or ad hoc data or by other means, whether it may reasonably be concluded from the evidence submitted by the authorities of the Member State concerned that the means chosen are appropriate for the attainment of the objectives pursued and whether it would be possible to attain those objectives by measures less restrictive of the free movement of goods (see, to that effect, judgment of 19 October 2016, Deutsche Parkinson Vereinigung, C‑148/15, EU:C:2016:776, paragraph 36 and the case-law cited).

44

However, the Court, which is called on to provide answers of use to that court, may provide guidance based on the documents relating to the main proceedings and on the written observations which have been submitted to it, in order to enable the court in question to give judgment (judgment of 7 September 2022, Cilevičs and Others, C‑391/20, EU:C:2022:638, paragraph 73 and the case-law cited).

45

In the first place, as regards the appropriateness of the national legislation at issue in the main proceedings for achieving the objectives mentioned, it must be observed that the condition that audiovisual programmes marketed in a Member State must have been previously classified and/or supplied with an indication of the minimum recommended age for viewing them, as that allows consumers to be informed of the nature of the content of those programmes and thus to determine which of them are suitable for the age of the children for whom they are responsible, is appropriate for protecting minors against programmes whose content is likely to harm their well-being and their development (see, to that effect, judgment of 14 February 2008, Dynamic Medien, C‑244/06, EU:C:2008:85, paragraph 47).

46

However, the legislation providing for such a measure can be considered to be appropriate for securing the attainment of that objective only if it genuinely reflects a concern to attain that objective and if it is implemented in a consistent and systematic manner (see, to that effect, judgment of 4 July 2019, Commission v Germany, C‑377/17, EU:C:2019:562, paragraph 89 and the case-law cited).

47

In that regard, it must be observed, first, that the legislation at issue in the main proceedings makes provision for a number of derogations from the requirement for audiovisual programmes to be classified and labelled in Finland.

48

As is apparent from the request for a preliminary ruling, those derogations, which are laid down in Paragraphs 9 and 10 of the Law on audiovisual programmes, are based on the content of the programme concerned or the context in which the programme is supplied. Under Paragraph 11 of that law, moreover, a derogation may, on certain conditions, be granted upon application.

49

However, such derogations, in that they are strictly defined and/or that they relate to audiovisual programmes the content of which, prima facie, is unlikely to be harmful to the development of minors, are limited in scope. Thus, subject to verification by the referring court, it does not appear that they are likely to hinder the attainment of the objective pursued by that law.

50

Second, it follows from Paragraph 2 of the Law on audiovisual programmes that a recording of the audiovisual programme is governed by that law only if it is marketed, in Finland, by an undertaking or trader registered or having an establishment in that Member State, by a Finnish citizen or by a person habitually resident in Finland, or if the decision to market that recording was taken in Finland.

51

Such a provision, in that it has the consequence of excluding from the scope of the Law on audiovisual programmes some of the recordings likely to be marketed in Finland from another Member State, thus allowing recordings of programmes having no label relating to the minimum age required to view them to be marketed in Finland, seems likely to limit the effectiveness of the legislation at issue in the main proceedings, to the detriment of the attainment of the objective of the protection of minors.

52

In its written observations, the Finnish Government stated that it had not been possible to introduce in Finland a legal regime under which recordings of audiovisual programmes sold remotely from another Member State might be subject to the classification requirement provided for in the Law on audiovisual programmes. In any event, it would have been impossible in practice to monitor compliance with such a requirement in an effective manner.

53

Furthermore, according to the Finnish Government, the majority of Finnish consumers make their purchases in online stores established in Finland, so that the attainment of the objective pursued by the Law on audiovisual programmes is not fundamentally compromised by the fact that the provisions of that law do not extend to all foreign suppliers of recordings of audiovisual programmes.

54

As is apparent from the case-law referred to in paragraph 43 of this judgment, it is for the referring court to examine objectively, on the basis of, in particular, the evidence supplied by the authorities of the Member State concerned, whether, in the light, in particular, of the scope of the legislation at issue in the main proceedings, the requirement for the classification and labelling of recordings of audiovisual programmes marketed in Finland genuinely reflects a concern to attain the objective of protecting minors against those recordings the content of which is likely to be harmful to their well-being and their development.

55

To that end, it is appropriate to take account, in particular, of the underlying rationale of the limitation of the scope of the legislation at issue in the main proceedings and the consequences which that limitation actually has on the attainment of the objective pursued.

56

In the second place, as regards the assessment of the need for the measure at issue in the main proceedings, it should be emphasised that, in the absence of harmonisation at EU level of the rules applicable to the classification and labelling of audiovisual programmes, it is for the Member States to determine the level at which they intend to ensure the protection of minors against audiovisual programmes likely to harm their well-being and their development.

57

Thus, the measures adopted by a Member State to protect minors against such content do not necessarily correspond to a conception shared by all Member States as regards the level of protection and the detailed rules relating to it. As that conception may vary from one Member State to another on the basis of, inter alia, moral or cultural views, Member States must be recognised as having a margin of discretion in that regard (see, to that effect, judgment of 19 November 2020, ZW, C‑454/19, EU:C:2020:947, paragraph 42 and the case-law cited).

58

Accordingly, the fact that one Member State has opted for rules on the protection of minors against content likely to harm their well-being and their development that are different from those adopted by another Member State cannot in itself affect the assessment of the proportionality of the national provisions enacted to that end, which must be assessed solely by reference to the objective which they pursue and the level of protection which the Member State in question intends to provide (see, to that effect, judgment of 14 February 2008, Dynamic Medien, C‑244/06, EU:C:2008:85, paragraph 49 and the case-law cited).

59

It follows, in particular, that a Member State may lawfully consider that the consumers present within its territory must be able to rely on indications of age limit and content which reflect the moral and cultural views which prevail in that Member State so that they may reach an informed decision as to whether a particular audiovisual programme is appropriate for the age of the minors for whom they are responsible.

60

Therefore, a Member State cannot be required to waive the requirement that audiovisual programmes marketed via an online store have previously been subject, in that Member State, to classification and labelling according to age limits for the purposes of protecting minors, on the ground that such a programme has already been subject, in another Member State, to classification and labelling for the same purpose.

61

Likewise, a Member State cannot be required to provide for a derogation from the requirement for the classification and labelling of audiovisual programmes according to age limits where it might be established that the person acquiring a recording has reached the age of majority. If the classification and labelling of audiovisual programmes according to age limits were carried out before the medium on which they are recorded is dispatched, but only after the medium has been purchased, consumers would not be in a position to reach an informed decision as to whether a programme is appropriate for the age of the minors for whom they are responsible, or who may have access to that recording. There would thus be a greater risk that a minor would have access to a programme inappropriate for his or her age. Nor, in the light of those considerations, can a Member State be required to subject to the classification and labelling requirement only programmes the recordings of which are actually delivered in that Member State.

62

Furthermore, it must be observed that the harm occasioned to the free movement of recordings of audiovisual programmes by a measure such as that at issue in the main proceedings does not appear to go beyond what is necessary in order for the objective pursued by that measure to be attained, which it is nonetheless for the referring court to ascertain.

63

In that regard, it must be observed, in particular, as is clear from the order for reference, that the Finnish legislature restricted the scope of the measure at issue by means of Paragraph 2(1) of the Law on audiovisual programmes and provided for a number of derogations from the requirement for the classification and labelling of such programmes in Paragraphs 9 to 11 thereof.

64

Furthermore, there is nothing in the case file before the Court to support the view that the classification procedure followed in application of that law is not readily accessible, that it cannot be completed within a reasonable period or that, if it leads to a refusal, it cannot be open to challenge before the courts. Nonetheless, the referring court must ascertain whether that is the case (see, to that effect, judgment of 14 February 2008, Dynamic Medien, C‑244/06, EU:C:2008:85, paragraphs 50 and 51).

65

In the light of all of the foregoing considerations, the answer to the first question referred for a preliminary ruling is as follows:

66

In the light of the answer to the first question, there is no need to answer the second question.

67

Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On those grounds, the Court (Tenth Chamber) hereby rules:

Articles 34 and 36 TFEU must be interpreted as meaning that they do not preclude legislation of a Member State which, with the objective of protecting minors against audiovisual content capable of harming their well-being and their development, requires that audiovisual programmes recorded on a physical medium and marketed via an online store have previously been the subject of an inspection procedure and classification, according to age limits, and corresponding labelling in accordance with the law of that Member State, including where those programmes have already been the subject of a comparable procedure and of comparable classification and labelling in application of the law of another Member State, provided that that legislation is appropriate for securing the attainment of that objective and does not go beyond what is necessary in order to attain it;

In that regard, the fact that some of the recordings that may be marketed in the Member State in question from another Member State are excluded from the scope of that legislation is not of decisive importance, provided that such a limitation does not compromise the attainment of the objective pursued. Nor is it decisive that the national legislation concerned does not provide for a derogation from that requirement where it may be established that the purchaser of a recording covered by that legislation has reached the age of majority.