C-352/85

'the use of an antenna system to relay radio The Bond van Adverteerders (the and television programmes to the [Dutch] Netherlands Advertisers' Association, here- public shall be authorized [inter alia] in the inafter referred to as 'the advertisers') and a case of . . . further 15 advertising agencies applied to the President of the Arrondissement- srechtbank (District Court), The Hague, for the provisional suspension of those prohibitions on the ground that the (c) programmes supplied from abroad by provision cited above constituted a barrier cable, over the air or by satellite, by or to the production of advertising aimed at on behalf of an organization or group the Dutch public. To that end, the of organizations distributing the pro- applicants maintained that the prohibitions gramme in the country in which it is infringed Article 59 et seq. of the EEC established by means of a transmitter or Treaty and Article 10 of the European a cable network, provided that: Convention on Human Rights.

* Translated from the Italian.

BOND VAN ADVERTEERDERS v NETHERLANDS STATE

OPINION OF MR MANCINI — CASE 352/85

Yet that prohibition does not signify that Dutch television is devoid of advertising, since under Article 50 However, whilst this large distribution of the Omroepwet responsibility therefor is network is no friend to the storks it conferred on the Stichting Etherreclame facilitates the unhampered entry of (Television and Radio Advertising Foun- programmes from abroad. Everyone is dation, hereinafter referred to as the aware that until a few years ago foreign 'STER'), a public body completely inde- television programmes could be seen, in the pendent of the organizations with the right Netherlands as elsewhere, only by those in to broadcast. possession of a suitable aerial and hence by the inhabitants of frontier regions situated in the so-called 'natural' area of reception. With the advent of telecommunication Obviously, the STER does not make the satellites the possibility of receiving foreign advertisements, it merely sells air time, over transmissions has increased enormously, and which it has a monopoly, to the agents of it will increase even more when the direct the companies making them. It can broadcasting satellites are in operation. therefore be said that anyone has the right Today at all events it is sufficient to pipe the to transmit advertisements on the radio or signals from a satellite to a cable distri- television provided that he goes via the bution network for programmes broadcast bottleneck constituted by the STER and even in very distant locations to be available complies with the strict conditions laid immediately to all the network's subscribers. down in the Omroepwet (advertising is Indeed, it was because of that development prohibited on Sundays and on religious that the Netherlands Government, anxious festivals and is subject to time-limits ; about losing control over the national tele- tobacco products may not be advertised; vision market, decided to issue the Kabelre- advertisements may not interrupt geling.

BOND VAN ADVERTEERDERS v NETHERLANDS STATE

above). However, for the purposes of the because the point-to-point system enables implementation of the prohibitions which it transmissions intended for users of a sets out, the Kabelregeling draws a language other than that of the country in distinction between foreign programmes which they are produced to be made, transmitted over the air and those which without the problems of simultaneous may be received via telecommunication propagation — that the Kabelregeling satellite. Although the former may be makes the relaying of such transmissions received, or received and retransmitted, by subject to the two prohibitions laid down in cable or, in the near future, by direct broad- Article 4. And it is for the same reason that casting satellite in the Netherlands, they are the applicants in the main proceedings wish designed solely for the public in their to use such transmissions as a vehicle for country of origin where they are broadcast their advertising. inter alia over the air. Consequently they do not contain advertising directed at the

. . participate' (see the 'which cannot be received over the air' (see explanatory memorandum appended to the the aforementioned explanatory memo- decree). The programme in question, which randum, Section I) may not be freely is supplied by satellite link, has to satisfy the imported. Such programmes consist for the requirements laid down in Article 4 (1) (c) most part of transmissions propagated by of the Kabelregeling but, unlike the telecommunication satellite by means of the programmes covered by that provision, need so-called 'point-to-point' system. The point- not necessarily be transmitted in the State to-point system can be described in a few (Switzerland) in which the association

OPINION OF MR MANCINI —CASE 352/85

That case concerned the legality of Belgian rules prohibiting the retransmission of foreign 3. Let us now turn our attention to the advertisements by national cable operators Community rules, which consist in. only two while regarding as lawful the direct decisions of the Court: Sacchi and Debauve. reception of such advertisements in frontier Although the judgments in the two Coditei areas; in order to resolve the issue, it had cases (the judgment of 18 March 1980 in first to be established whether Article 59 et Case 62/79 [1980] ECR 881, and the seq. of the Treaty also applied to judgment of 6 October 1982 in Case 262/81 programmes transmitted by cable.

It provision . . . in the T r e a t y . . . the trans- is impossible to understand them without mission of television signals, including those referring to the discussion to which the in the nature of advertisements, comes, as question put to the Court gave rise in the such, within the rules . . . relating to services. course of the proceedings. The Government On the other hand, trade in material, sound of the Federal Republic of Germany argued recordings, films, apparatus and other that 'The Treaty does not prohibit Member products used for the diffusion of television States from resisting the broadcasting within signals is subject to the rules relating to the territory coming under their sovereignty freedom of movement for goods'. In order of advertising material.

BOND VAN ADVERTEERDERS v NETHERLANDS STATE

The service provided by the distributor thus becomes a 'new 4. Having thus clarified the national and service . . . [which] is specific and ident- Community legislative background to the ifiable . . . because it involves remuneration case, it is possible to decipher the questions paid by the television viewer' (my emphasis). submitted by the Gerechtshof. The original nine questions may be reduced 7 to the following six: Consequently the passage from the Court's judgment which I have cited constitutes a reply to those arguments.

OPINION OF MR MANCINI — CASE 352/85

(b) If the first question is answered in the (f) Whether in such a case the principle of affirmative, whether national rules proportionality and the fundamental which subject such transmission of rights enshrined in the Community legal programmes supplied from abroad to order (in particular freedom of requirements that they should not expression and freedom to receive infor- contain advertising or subtitles in the mation) are directly binding on the language of the Member State Member States ? concerned are compatible with Article 59 of the Treaty when such requirements do not apply, or do not apply in an identical manner, to similar 5. In the course of the proceedings before programmes supplied within that the Court written observations were Member State? submitted by the applicants in the main proceedings, the Governments of the Netherlands, France and the Federal Republic of Germany and the Commission of the European Communities. Only the (c) Whether it is relevant for the purpose of French representative did not take part in answering that question thatadver- the hearing. It is worth pointing out straight tisements contained in programmes away that, with the exception of the French supplied within that State may only be and Netherlands Governments, the inter- broadcast subject to the supervision of a veners consider the prohibitions laid down public organization which has a in the provision at issue to be discriminatory statutory monopoly of television adver- in intention. However, the Government of tising time and whose revenue goes the Federal Republic of Germany considers almost entirely to finance the activities that the restrictions in question are capable of domestic broadcasting organizations of being justified on the ground of the and to the press? public interest in safeguarding the pluralism and non-commercial nature of the national television system. The Commission takes the opposite view.

The objective of the question does not seem The Government of the Federal Republic of to have been understood by the French Germany takes a narrower view: it Government. After stating that it is for the considers that signals transmitted over a national court to ascertain whether the point-to-point system break down into only relevant elements of a given activity 'are two services, one supplied by the foreign confined within a single Member State', it broadcaster, the other by the operator of points out that Article 4 is directed at the cable television network. Only the first 'programmes supplied from abroad . . . [con- service is of a transnational nature, although taining] advertisements intended especially it is obvious that its free movement may be for the public in the Netherlands' and undermined by any restrictions imposed on considers therefore that the Netherlands the second service. The Commission starts court has found a relevant element which is from similar premisses but reaches funda- outside the Netherlands and hence justifies mentally different findings. In principle the application of Article 59. If that were there are two services : the service — all of the case, it would be unclear why the whose elements are carried out within a Gerechtshof had referred the matter to the single country — that the distributor Court. In any event, it is clear that, in this provides to its subscribers and the service connection at least, the national court's provided by the foreign broadcaster. interest is not focused on the fact that However, the service carried out by the advertising from abroad is intended for latter consists in making a programme for viewers in the Netherlands; what it wishes viewers in another Member State: it can to establish is whether foreign television therefore be said that that service absorbs programmes, with or without a commercial the activity of the cable operator and that, content, transmitted by the point-to-point as a result, a single service is involved. That system constitute the provision of a service service is manifestly a transnational one for the purposes of Community law. because it is extended 'by the broadcaster to the subscriber'.

OPINION OF MR MANCINI —CASE 352/85

The way in which contrarto argument. Supposing that in a the signals cross the frontier between the certain area of the national territory two States is of no significance; in affected by the foreign programme there are particular, the work of the distributor, who no distributors or, if there are distributors, does not alter the content of the initial they have no more channels available. broadcast but merely distributes it, N o o n e would claim — although logically constitutes merely an ancillary 'extension' of the view taken by the Federal Republic of the broadcast. Germany would require one so to argue — that in such a situation the supply In the final analysis it can be said that the of services by the foreign broadcaster is to a service provided by a broadcaster to greater or lesser extent lawfully 'restricted'; subscribers of a distributor in another

subscriber. From the technical point of view perplexity. But the doubts disappear given that argument overlooks the fact that, were that (a) Article 60 does not require the it not for the intervention of the cable remuneration to be transnational and does operator, the programme transmitted by a not require the service to be paid for by all telecommunication satellite would be its recipients and (b) the broadcaster in any incapable of being seen. Furthermore, from event receives payment from the viewers in the economic angle, that intervention is the State in which it is established plainly separate from the activity of the ('Radiodiffusion et traité CEE', in Revue du broadcaster, as can be seen from the fact Marché commun !986, p. 387). that the operator can distribute the programme only with the agreement of the persons to whom the copyright belongs. 6. None of these arguments appears Lastly, from the legal point of view there convincing to me.

Academic writers have expressed arguments I concede that the Netherlands Government very similar to those put forward by the bases itself on data and arguments which

BOND VAN ADVERTEERDERS v NETHERLANDS STATE

Now, a that those programmes are distributed to prohibition on advertising designed as a Dutch viewers not over the air but by cable restriction on broadcasting can obviously by a Dutch operator who receives them via only be applied uniformly, that is to say satellite; therefore it is true that those irrespective of the national origin of the programmes do not appear on television programme distributed by the distributor; screens in the Netherlands after having and that prevents it from being regarded as necessarily been seen and paid for by the an obstacle capable of unlawfully affecting public in the Member State of origin. the service provided by the foreign broad- Accordingly the Netherlands Government's caster. criticisms of the theory of the extended service and of the single transfrontier supply of services are on target. Indeed, that theory Moreover, the contrary view championed by presupposes that although the broadcast is the French Government is no less weak.

In distributor is as indispensable for the real other words, in addition to misunder- target of the programme, that is to say the standing the question referred by the subscriber, as the service supplied by the Gerechtshof, the French Government is no broadcaster. more successful than the Commission and the Federal Republic of Germany in trans- lating the whole reality of the transaction under consideration into legally telling But it is not only the Commission which terms. seems to come off badly against the argument adopted by the Netherlands

Government. In fact, that overlooks the (1) it treats as incidental the fact that the logical step which the is at the heart of the. cable operator distributes a signal which

has been received, as the actual television in the same way as normal tele- expression 'point-to-point' proves, vision transmission. In contrast, in this case across one or more frontiers; programmes are transmitted via telecommu- nication satellite and are not capable of being received over the air; as a result, it is not possible blindly to apply Debauvcs case. (2) it conflicts with the new Article 4 (1) (d) of the Kabelregeling which, by way of derogation from Article 4 (1) (c), auth- Secondly, as regards the criterion based on orizes a European programme to be the 'relevant elements', it is true, as the broadcast from and to the Netherlands French Government states, that the Court by telecommunication satellite and left it to the national court to ascertain the hence acknowledges that that pro- facts relating to the place and way in which gramme is intrinsically, that is to say the service is carried out. However, deter-

1974. States collaborate in order to carry it out. Yet it is equally possible to regard that activity as an aggregation of services which 7. What is the solution then? I consider that are similar but, precisely because they are there is no other solution than to return to carried out by several persons and in several the question put by the Gerechtshof and places, mutually independent. consider as a preliminary step whether for the purposes of Articles 59 and 60 of the Treaty a television signal is a single activity Now, the task of choosing between the first or whether it can be broken down into two and second of those two approaches — and or more independent supplies of services. between the substantially divergent legal Let us first clear the ground of a number of consequences of those approaches — is possible misunderstandings. As I pointed out bound to fall to the Court. In the case of in Section 3 above, Case 52/79 was the example which I have just given, the concerned with television programmes Court would probably hold that the service distributed by cable to viewers living outside by means of which the London newspaper the 'natural area' of the broadcaster. arrives in Amsterdam is an indivisible one However, since the programmes concerned (see moreover Article 34 of the Geneva had originally been broadcast over the air, Convention of 15 May 1956 on the contract they could have been received by the public for the international carriage of goods by at large; and it was for that very reason that road (CMR)). What is the position in the the Court considered it right to treat cable case of television broadcasting?

There are two definitions of broadcasting, are those services and, above all, what is the both set out in instruments concerning nature of the provision? We shall start by copyright: the International Telecommuni- observing that intrinsically the content, cations Union Convention (1947), which or perhaps better the essence, of the defines it in the following terms 'trans- phenomenon is the contemporaneous missions to be received directly by the remote broadcast of pictures and sounds, general public' and the International which, moreover, cannot be broken down Convention for the Protection of into segments, each with a value Performers, Producers of Phonograms and proportional to the whole. Consequently, Broadcasting Organizations (1961), which from that point of view the signal is a single defines it as 'transmission by wireless means and indivisible supply of services.

signal. Furthermore, on this view the station in which the signal originates or by technical means which make that process the network which distributes that signal to viewers (see Cohen Jehoram, 'Legal issues possible (radio waves yesterday, telecommu- of satellite television in Europe', in Revue nication satellites linked to cable operators internationale du droit d'auteur, 1984, p. 146 today, direct broadcasting satellites et seq.). On top of this, since international tomorrow) and the number of persons copyright law is governed by the principle involved have no importance.

There the Court stated that 'a television signal must, by reason of its nature, be regarded as a provision of services' and hence 'the trans- mission of television signals . . . comes, as such, within the rules of the Treaty\ The statement seems trivial; in reality, analysed, so to speak, in slow motion, it proves to be The conclusion which emerges from these full of significance. observations comes close to those reached by the Commission and the learned articles. However, it avoids those aspects which the Netherlands Government has rightly criticized: that is to say the assumption that The signal is by reason of its nature a the programme is deliberately aimed at an provision of services. Very good, but what audience on the other side of the frontier

and the conception of the role played by the General Warner's Opinion in the Debauve distributor as an 'ancillary* component of case). the point-to-point transmission. I could therefore stop at this point. However, I believe that the problem deserves a solution The requirement of transnationality de- which is both more Community-minded and mands more complex discussion. As I capable of taking into account not only the pointed out in Section 3 above, following present but also the future, a future, as I the reference made in the Debauve case to have already said, in which direct broad- the requirement that the activity should be casting satellites will be the dominant or carried out at least in part outside a single even the sole means of transmission. country, the Court formulated a concept of the supply of services which is no longer rigidly dependent on the crossing of frontiers but is geared to the intrinsic content of the service as an activity which is

It is are concerned the Court made no mention stated in that judgment that in order to of it in its decisions. For instance, in the enable services to be provided 'the person judgment in the Debauve case, the Court . providing the service may go to the Member drew the national court's attention to the •State where the person for whom it is fact that the supply of the service should not provided is established or else the latter may take place solely within one single State, but go to the State in which the person did not ask it to check whether the service providing the service is established.

viewer. Indeed, in my opinion, the supply of State. In my Opinion in that case I argued the service may still be economic in nature with particular regard to tourism, medical even where there is no remuneration at all treatment and education that the provisions (as in the case of charitable programmes in on freedom of movement are addressed not which well-known sportsmen or actors take only to providers of services but also to p a n ; however, for the opposite view see users. Now, the aim which the Court was Schwartz, op. cit, p. 394 and Advocate pursuing in that case — that of liberalizing

the movements of all activities falling guarantee the free movement within the outside the sphere of Articles 30, 48 and Community of all broadcasts which comply 67 — is bound also to affect television with the law of the Member State in which signals. Compared with the activities which they originate. It may be objected in some I have just mentioned, television is different quarters that Article 21 distinguishes only in so far as neither the provider or the between 'internal broadcasts' and 'cross- user is compelled to move. It is different in frontier broadcasts'; but that circum- that regard only because, owing to its indi- stance— although it may be open to visible nature and its ability to be enjoyed at criticism on account of its potential capacity increasing distances from the State in which to cause confusion — is of little importance the programmes are broadcast, it is a if it is true that the definitions relate provision of services which is neither substantially to internal broadcasts only and domestic or transfrontier but — and this is are relevant solely with regard to the rules the definitive outcome of my research — a on advertising and the protection of provision of services which is without copyright (see in any event Amendments

The consequences A final consideration. I consider that the are obvious. In order to enjoy the protection finding which I have reached is not only of Community law, television signals must consistent with the technical and legal fulfil one requirement only: they must have reality of television broadcasts, it is also been broadcast in a Member State of the more consistent than any other with the Community in accordance with its rules. It philosophy on which the Community edifice is not possible to make them subject to and, above all, recognition of the 'four great

freely throughout the territory of the following answer to proponents of the view Community, a television signal originating that Article 56 of the Treaty authorizes the in the United Kingdom (for instance, the Member States to prohibit the distribution I T N News on Super Channel) must be of foreign programmes if they fear that their entitled to circulate without hindrance proliferation might prejudice the fulfilment between London and Las Palmas or of the tasks consigned to national broad- Iraklion, whatever the means of transport casting: 'the access of Community citizens selected by its producer. to cultural programmes of other Member States is not restricted . . . to cases in which citizens make use of their . . . freedom of movement and go to the Member State whose broadcasting organization makes a Moreover, the proposal for a directive cultural service available.

OPINION OF MR MANCINI — CASE 352/85

In contrast, in order to safeguard the non-commercial and pluralistic character of the Netherlands system, the Omgroepor- I must therefore answer the first question as ganisaties and groups assimilated thereto follows: for the purposes of Articles 59 and may not receive commercial revenue but are 60 of the Treaty, a programme broadcast in financed by the State, which to that end a Member State by the authorized television draws inter alia on the proceeds of the organization or organizations must be STER. Consequently, if the contested regarded as a single provision of services prohibition did not exist, foreign broad- even if that programme is supplied to casters would be able to broadcast all the viewers in another Member State by satellite advertising they wanted and freely dispose or is distributed by cable. of the revenue therefrom while national organizations would continue to operate in a non-commercial environment subject to

Rather, the the Netherlands. authorization of the competent minister is intended to prevent evasion of the prohibition on advertising; in other words by laying down that provision the legislature Obviously the Netherlands Government took account of the possibility that adver- proposes that those questions should be tising not aimed at the public in the

Netherlands might be made comprehensible the Kabelregeling seem discriminatory; to it and end up by being aimed at it as a however, in general terms it argues that result of its being inserted in programmes restrictions designed to ensure that a variety subtitled in Dutch. of opinions are represented in the world of television must be regarded as being protected by the public-policy provision or Having dismissed the charge of discrimi- in any event, as having been lawfully nation, the Netherlands Government goes adopted in the public interest. The Federal on to argue, the prohibitions laid down in Republic of Germany also observes that no the Kabelregeling have no need to be scru- Member State leaves the organization of its tinized further. However, ad abundantiam it television system exposed to the free play of can be stressed that the measure was market forces. designed in order to guarantee Dutch citizens broadcasting which is accessible to all the elements of Dutch society and that 10. Let us begin by examining questions (b) its provisions contain nothing excessive and (c). According to the established when measured against the importance of case-law of the Court, Articles 59 and 60 of that public interest; indeed, in the judgment the Treaty are directly applicable and of 11 July 1985 (in Joined Cases 60 and prohibit any sort of discrimination. 61/84 Cinéthèque SA and Others v Therefore, they cover not only overt Fédération nationale des cinémas français discrimination based on the nationality of [1985] ECR 2605), the Court held that the person providing the service in question cultural-policy objectives pursued by the and on the place where the provider of the Member States constituted appropriate justi- service is established but also covert fication for restrictive measures, even if discrimination which is based on criteria those measures were coupled with economic which appear to be neutral (judgment of 17 and financial procedures. The Netherlands December 1981 in Case 279/80 Webb Government adds that the Kabelregeling is [1981] ECR 3305, paragraph 14; judgment anything but designed to impede compe- of 3 February 1982 in Joined Cases 62 and tition; on the contrary, competition would 63/81 Seco v Evi [1982] ECR 223, be distorted if Dutch distributors were able paragraph 8; judgment of 4 December 1986 to broadcast programmes from abroad in Case 205/84 Commission v Federal without being subject to the limitations Republic of Germany [1986] ECR 3755, imposed on national broadcasters with paragraph 25). regard to advertising.

advertisements on their own initiative, but Does this mean, therefore, that the Federal since it is equally true that broadcasts of the Republic of Germany has taken the correct two national networks contain adver- view? I do not think so. I do not take that tisements, that requirement and the fact that view because Article 56 refers to discrimi- the broadcasting of advertisements is nation vis-â-vis foreign nationals whilst in entrusted to a public body with a monopoly this case it is a service which is subjected to appear clearly irrelevant. different rules. Admittedly, the Court has

technology. In other words, by prohibiting without doubt more consonant with the the reception of advertisements intended for ratio legis and more consistent with the consumers in the Netherlands or translated interests at stake. for them by means of subtitles, the provisions of the Kabelregeling also prevent them from watching and listening to programmes provided from abroad by satellite. Moreover, the Netherlands legis- lature itself admits this; according to the I have another reason for rejecting the explanatory memorandum appended to the German Government's argument and it lies Kabelregeling 'generally, [the prohibitions precisely in the extreme strictness with set out in Article 4 seek to avoid] the which the Court has come to interpret the setting-up by indirect means in the concept of public policy after a long and Netherlands of a commercial cable télévision- difficult process of development.

discrimination here. However, as we have paragraph 9). In the judgment in seen, this does not yet signify that Article 4 Bouchereatis case the Court stated that that of the Kabelregeling conflicts with public policy could be invoked in order to Community law. As a result of the reference justify restrictions on the free movement of made in Article 66 of the Treaty, 'foreign persons only where there was 'a genuine nationals' may be subjected to 'special and sufficiently serious t h r e a t . . . affecting treatment' on grounds of public policy one of the fundamental interests of society*. (Article 56 (1)); and there is no doubt that In the judgment in the Adoui and Cornuaille that general clause is in principle broad case the Court added that conduct on the enough to cover safeguarding a pluralistic, part of a Community national in the non-commercial television system through territory of another Member State may not the financing of broadcasting organizations. be considered as being of a sufficiently

In the light of that dual criterion, it does not seem to me to be necessary to ascertain T o return to the Kabelregeling, it seems to and subject to critical analysis the political me therefore reasonable to conclude that and social values which the contested the link between its restrictions and safe- provision claims to protect on public-policy guarding pluralism in broadcasting is grounds. I have already repeatedly pointed extremely thin or, in the course of disap- out that Dutch television is not free of pearing. N o matter what the Netherlands advertising. On the contrary, the Government says, we now know definitely programmes broadcast by the national that the restrictions are designed to a very networks are subject to frequent commercial considerable extent to protect domestic breaks consisting of advertisements programmes from competition from 'Dutch' broadcast through the STER, although programmes coming from abroad; and it is there is no interruption of programmes by that eminently economic objective which, in advertisements; and it certainly cannot be the final analysis, precludes the application said that Dutch programmes lack subtitles of the derogation provided for in Article 56. because they are prohibited by a specific As the judgment in the Sacchi case states, provision. T o employ the terminology of the the Member States may protect their tele- judgment in the Adotti and Comuaille case, vision transmissions from foreign compe- the advertising contained in transmissions tition inter alia by setting up a monopoly made by satellite or cable is therefore but, in every case and only, 'for consider- 'repressed' by means of measures which the ations . . . of a non-economic nature' Netherlands does not adopt with respect to (paragraph 14, my emphasis). advertisements of domestic origin. It is clear, in fact, that the constraints laid down by the Omroepwet — although they are 11. Since questions (d) and (e) assume that many in number and, it is correct to say, the prohibitions set out in the Kabelregeling strict — are not as radical as the are not discriminatory — which in my view prohibitions laid down in the Kabelregeling. is untenable — I shall consider them solely in order to comply with the practice that the Advocate General considers all the aspects of the case with which he is dealing. The But it will be objected that to say this is to Gerechtshof wishes to know whether overlook that, in order to ensure that the national rules limiting advertising must be television system achieves its desired proportional to the objectives of the relevant pluralism, the Omroepwet itself provides for legislation and justified on grounds related the public funding of authorized broad- to the public interest. The latter coincide in casting organizations, and that the relevant p a n with those which the Government of resources are drawn from a source of the Federal Republic of Germany considers income to which foreign broadcasters and from the different point of view of public cable operators do not contribute. That is policy as justifying the restrictions in correct. However, that argument in turn question: safeguarding the pluralistic and

non-commercial nature of the television systems of law in the various Member system and protecting domestic programmes States, passing from almost total pro- against unfair competition from foreign hibition . . . to systems affording broad . . . broadcasters. freedom. In the absence of any approxi- mation of national laws . . . [it] falls within the residual power of each Member State to regulate, restrict or even totally prohibit television advertising on its territory on grounds of general interest. The position is

Has the national provisions are applied 'to all there been a change in the situation persons or undertakings' operating within described in the first part of the passage the territory of the State in which the quoted? To some extent, yes; and not only service is provided and if they are justified because of the technical advances which by the 'general good'; the latter interest, in have made it possible for foreign television turn, must not already be 'safeguarded by programmes to be watched in almost all the the provisions to which the provider of a countries of the Community.

Member States. Furthermore, in the adver- tising sector those and other systems have adopted codes of conduct or will do so in coming years on the basis of Recommen- The second premiss concerns those dation No R(84)3 adopted on 23 February particular services, television programmes. 1984 by the Committee of Ministers of the T h a t they are free to move within the area Council of Europe. But the fact remains that of the Community was acknowledged as those processes of deregulation and self- early as 1974, and I have argued in Section regulation are still marginal (the only 8 that that right is unaffected by the means national markets to be substantially affected used to transmit them. However, it is stated are the Italian and, for some time now, the in the judgment in the Debauve case that French). Bearing in mind that it was only 'the television broadcasting of adver- last year that a proposal for a directive was tisements is subject to widely divergent promised, it will presumably be a very long

time before we have common rules on tele- therefore tends to make very cautious use of vision. it and, in particular, to allow it to operate as a derogation only when the difference between the rules to which a given service is subject in the several Member States is so great as to make it appear premature — and hence counterproductive for the general In other words, the observations which the interest of the Community — to have Court made in paragraph 13 of the Debauve absolute freedom of movement.

If they of commercial advertising from other are they certainly conflict with the Member States to specific conditions must Community's economic order, of which the therefore be regarded as being compatible free movement of services is a cornerstone with Articles 59 and 60 of the Treaty if (a) (see paragraph 14 of the judgment in the it sets out to protect a general (or public) Sacchi case, which is quoted at the end of interest; (b) it treats equally all services in the previous paragraph in a not dissimilar the sector, irrespective of their origin or

'unfair': It is doubtless unfair in so far as the advertisements contained in those programmes do not comply with the rules What is the reason for adding that qualifi- which apply to domestic advertisements. cation? Since its scope is practically However, it is not permissible to react unbounded, the clause relating to the against that danger by issuing prohibitions; general interest lends itself to all kinds of the only acceptable remedies are adminis- abuse. As can be seen from the judgments trative supervision and the stipulation of which I have mentioned, the Court effective pecuniary sanctions.

13. In view of the foregoing considerations I propose that the Court should answer the questions referred for a preliminary ruling by the Gerechtshof, The Hague, by order of 30 October 1985 in the proceedings pending before it between the Bond van Adverteerders and Others and the State of the Netherlands in the following terms:

T o r the purposes of Articles 59 and 60 of the Treaty, broadcasts of television programmes in one Member State by the authorized television organization or organizations must be regarded as being, by reason of their nature, a single and indivisible provision of services even if the broadcasts are received by viewers in another Member State via a cable linked to a telecommunication satellite;

BOND VAN ADVERTEERDERS v NETHERLANDS STATE

It is contrary to the Treaty provisions on freedom to supply services for the legis- lation of a Member State to make the distribution of programmes supplied from abroad as described above subject to the requirements that they should not contain advertising or subtitles in the language of that State when such conditions are not laid down, or are not laid down with equal effectiveness, with regard to similar domestic programmes; The fact that advertising contained in domestic programmes can be broadcast solely subject to the supervision of a public organization with a legal monopoly over advertising time and that the revenue of that organization goes almost entirely to finance the activities of domestic broadcasting organizations and the press does not change or attenuate the incompatibility of that legislation with the Treaty provisions relating to freedom to provide services.'