Keywords
Summary

Keywords

1 Freedom to provide services - Television broadcasting - Directive 89/552 - Television advertising - Number of advertising slots to be allowed during the broadcasting of audiovisual works - Method of calculation - Duration of advertisements to be taken into account

(Council Directive 89/552, Art. 11(3))

2 Freedom to provide services - Television broadcasting - Directive 89/552 - Option available to Member States to derogate from the rules on advertising - Number of advertising slots to be allowed during the broadcasting of audiovisual works - Method of calculation taking no account of the duration of advertisements - Whether permissible - Conditions

(EC Treaty, Arts 5 and 85 (now Arts 10 EC and 81 EC) and Arts 6 and 30 (now, after amendment, Arts 12 EC and 28 EC); Council Directive 89/552, Arts 3(1) and 11(3))

Summary

1 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. It follows that, when a provision of Directive 89/552 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities, as amended by Directive 97/36, 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.

Since Article 11(3) of Directive 89/552 - the wording of which is ambiguous - imposes a restriction as regards the possibility of interrupting the transmission of audiovisual works to allow advertising, that restriction must be interpreted in the strictest possible sense. It is common ground that the gross principle (under which the duration of advertisements is included in the period of time taken into consideration for determining the number of advertising interruptions allowed) allows a greater number of interruptions for advertising than the net principle (under which only the duration of the works themselves is included). It follows that Article 11(3) of Directive 89/552 is to be construed as prescribing the gross principle, which means that, in order to calculate the 45-minute period for the purpose of determining the number of advertising slots authorised in the broadcasting of audiovisual works, such as feature films and films made for television, the duration of the advertisements must be included in that period.

2 Article 11(3), in conjunction with Article 3(1), of Directive 89/552 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities, as amended by Directive 97/36, authorises Member States to prescribe, for television broadcasters under their jurisdiction, the net principle for advertisements which may be inserted during programmes, and thus to provide that, in order to calculate the 45-minute period for the purpose of determining the number of advertising slots authorised in the broadcasting of audiovisual works, such as feature films and films made for television, the duration of the advertisements must be excluded, on condition, however, that those rules are compatible with other relevant provisions of Community law.

In that connection, Article 5 of the Treaty (now Article 10 EC), Articles 6 and 30 of the Treaty (now, after amendment, Articles 12 EC and 28 EC), Article 85 of the Treaty (now Article 81 EC) and the general principle of equal treatment do not apply to national legislation which prescribes the application of the net principle for television broadcasters under their jurisdiction. Secondly, Article 59 of the Treaty (now, after amendment, Article 49 EC) does not preclude a Member State from prescribing, under Article 3(1) of Directive 89/552, application of the net principle.