C-412/93

OPINION OF MR JACOBS — CASE C-412/93

OPINION OF ADVOCATE GENERAL JACOBS delivered on 24 November 1994 *

1. Leclerc-Siplec distributes petrol and other Tribunal de Commerce de Paris. It invited fuels at service stations in France. The service that court to seek a preliminary ruling from stations are, it appears, integrated into super­ the Court of Justice on the question whether markets operated by the same group under a provision of national law excluding the dis­ the name E. Leclerc. Leclerc-Siplec asked the tribution sector from television advertising is French television advertising companies compatible with certain provisions of the TF1 Publicité and M6 Publicité to broadcast Treaty and with the provisions of the Coun­ cil Directive known as 'Television without an advertisement for its petrol stations on frontiers' (Directive 89/552/EEC). 1 The television. TF1 Publicité and M6 Publicité defendants were in agreement that the matter refused on the ground that a provision of should be referred to the Court of Justice French law — namely Article 8 of Decree but TF1 Publicité asked for the scope of the No 92/280 of 27 March 1992 — prevents the question to be widened, so as to ascertain distribution sector from advertising on tele­ whether 'whole sectors of economic activity' vision. That provision also prohibits the (i. e. not just the distribution sector) can be advertising on television of alcoholic bever­ excluded from television advertising. ages with an alcohol content in excess of 1.2 degrees, literary publications, the cinema and the press. It appears that one of the main purposes of the prohibition is to protect France's regional daily press by forcing the sectors in question to advertise in regional daily newspapers rather than on television.

4. By judgment of 27 September 1993, the 6. It is clear from the cases cited by the Tribunal de Commerce referred to the Court Commission that the Court does not have of Justice the question: jurisdiction to deliver advisory opinions on general or hypothetical questions. It is also clear from Foglia v Novello (Nos 1 and 2) that the Court will in certain circumstances refuse to entertain a request for a prelimi­ nary ruling on the ground that Article 177 of 'Whether Articles 30, 85, 86, 5 and 3(f) of the the Treaty is being used as a 'procedural 6 7 EEC Treaty and Directive 89/552 of 3 Octo­ device' or an 'artificial expedient' by par­ ber 1989 are to be interpreted as prohibiting ties who are in complete agreement with a Member State from banning, by statute or each other and engage in contrived litigation by regulation, televised advertising in respect in order to obtain a preliminary ruling estab­ of certain sectors of economic activity, in lishing that national legislation is incompat­ particular the distribution sector, and more ible with Community law. generally whether Article 8 of the decree of 27 March 1992 may be considered compat­ ible with the aforesaid provisions.'

Admissibility

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10 — See for example Case C-150/88 Parfiimerie-Fabrik 4711 v 9 — See paragraphs 28 to 30 of the judgment in Foglia v Novello Provide [1989] ECR3891, paragraphs 11 and 12 of the (No 2), cited in note 2. judgment.

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The scope of the question referred broadcasting is a specific manifestation of the principle of freedom of expression laid down in Article 10 of the Convention.

12. The question referred by the French 14. In view of the terms of the question court suggests three ways in which the con­ referred I will not deal with Article 59 of the tested decree might be incompatible with Treaty, which certainly applies to restrictions Community law. First, it may constitute a on television advertising, 11or with the issue measure equivalent in effect to a quantitative of commercial free speech under Arti­ restriction on imports contrary to Arti­ cle 10 of the Convention. On the latter point cle 30 of the Treaty; secondly, it may be con­ I will merely note that, if the restrictions in trary to the competition rules laid down in question were held to fall within the scope of Articles 85 and 86 of the Treaty, read Community law, the Court would have together with Article 5; thirdly, it may be jurisdiction to examine their compatibility 12 inconsistent with the terms of Directive with the Convention. 89/552.

by the legislation in question. The Commis­ fundamental. Advertising is the means by sion contends that the issue raised by the which manufacturers and distributors of French court is entirely hypothetical as goods, and providers of services, seek to per­ regards the exclusion from television adver­ suade consumers that their goods or services tising of those other sectors of economic are worth buying. As was stated in a leading activity. The Commission implies that, if the case in the United States Supreme Court, 'So Court admits the reference, it should confine long as we preserve a predominantly free itself to considering the validity of the con­ enterprise economy, the allocation of our tested legislation only in so far as the prohi­ resources in large measure will be made bition of television advertising for the distri­ through numerous private economic deci­ bution sector is concerned. sions. It is a matter of public interest that those decisions, in the aggregate, be intelli­ gent and well informed. To this end, the free flow of commercial information is indispen­ 13 sable.'

17. The Commission's view has much to commend it, and I propose to concentrate on the distribution sector, confining myself to certain general comments on the other sec­ tors.

lize existing patterns of consumption, to requirements', provides ample scope for ossify markets and to preserve the status quo. Member States to subject advertising to rea­ sonable restrictions. These may be based inter alia on the protection of health, public morality, consumer protection and fair trad­ ing, and protection of the environment. There is thus no reason to fear that by rec­ ognizing a general principle of freedom to advertise the Court will deprive Member 21. These findings have important implica­ States of the power to curb the worst tions for the basic freedoms created by excesses of the advertising industry. Community law. In markets that are still, notwithstanding the process of economic integration initiated by the Treaty, to a large extent divided and compartmentalized along the lines of national frontiers, it is likely that the established brands will predominantly The free movement of goods belong to domestic producers. Without advertising it would be extremely difficult for a manufacturer located in one Member State to penetrate the market in another Member State where his products have not (a) The case-law on Article 30 prior to the previously been sold and so enjoy no repu­ Keck judgment tation among consumers. Thus measures that prohibit or severely restrict advertising tend inevitably to protect domestic manufacturers and to disadvantage manufacturers located in other Member States. Such measures prevent the interpénétration of markets and are inimi­ cal to the very concept of a single market. 23. Article 30 of the Treaty prohibits — sub­ The Court should therefore be extremely ject to certain exceptions laid down in Arti­ vigilant when appraising the compatibility cle 36 — quantitative restrictions on trade with Community law of restrictions on between Member States and measures having advertising. equivalent effect. The concept of measures having equivalent effect to a quantitative restriction has been broadly construed by 1 the Court. In Dassonville 4 the Court held that:

15 24. Until the Keck judgment, which I will consider below, it was a well established and fundamental principle that a measure does not lie outside the scope of Article 30 simply because it applies without distinction to domestic and imported products. In Rewe- Zentral v Bundesmonopolverwaltung für 26. More difficult questions arise when 16 Branntwein (commonly known as the national legislation, instead of simply pro­ 'Cassis de Dijon' judgment) the Court held hibiting the sale of certain goods lawfully that, where a product has been lawfully mar­ marketed in another Member State, restricts keted in one Member State, its sale in the circumstances in which certain goods — another Member State cannot be prevented or indeed all goods — may be marketed. on the ground that it does not comply with Such legislation is sometimes referred to as the legislation of that other State, unless such rules stating when, where, how, by whom, a restriction is justified in order to satisfy 17 and at what price goods may be sold. This mandatory requirements relating, in particu­ type of legislation does not normally have lar, to consumer protection and fair trading. such an obvious propensity to interfere with the free movement of goods as legislation of the type at issue in 'Cassis de Dijon'. But it would be wrong to say that such legislation has no effect on trade between Member States. The effect may indeed be very signifi­ cant. For example, legislation under which parapharmaceutical products may be sold only in pharmacies may, by severely restrict­ 25. The importance of the 'Cassis de Dijon' ing sales outlets, substantially restrict the principle cannot be overstated: if a Member access to the market of goods from other State were allowed to prevent the importa­ Member States. The same is true of legisla­ tion and sale of products lawfully manufac­ tion under which alcoholic beverages may be tured in another Member State, simply sold only in licensed stores for consumption because they were not made in the manner off the premises.

28. More frequently, in relation to measures regulating marketing, the Court has inter­ preted the scope of Article 30 broadly. The 21 first such case, Oosthoek, concerned a Netherlands law which prohibited the offer­ ing or giving of products as free gifts within

The Court then proceeded to enquire, as in is — Case 155/80 Oebel [1981] ECR 1993. the 'Cassis de Dijon' case, whether the 19 — Case 75/81 Bksgcn v Belgium [1982] ECR 1211. obstacle to imports was justified in order to 20 — Case C-23/89 Quietlynn v Southend Boroiivh Comicii [1990] ECR I-3059. £ satisfy mandatory requirements relating to 21 — Case 286/81 [1982] ECR 4575. consumer protection or fair trading. It con-

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24 — Case C-362/88 [1990] ECR I-667. 25 — Case C-241/89 [1990] ECR I-4695. 22 — Case 382/87 [1989] ECR 1235. 26 — Case C-126/91 [1993] ECR I-2361. 23 — Joined Cases C-1/90 and C-176/90 [1991] ECR I-4151; see 27 — Paragraph 7 of the judgment in GB-INNO-BM. also Case 152/78 Commission v France [1980] ECR 2299, in particular at paragraph 11 of the judgment. 28 — Paragraph 29 of the judgment.

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32. In GB-INNO-BM, SARPP and Yves were not excessive in relation to the aim pur­ Rocher the Court proceeded on the basis sued. In reaching that view the Court stated that the obstacle to trade between Member that: States was due to disparities in national law. It then applied a principle similar to the one formulated in 'Cassis de Dijon', namely that a trader who produces advertising material in accordance with the law of one Member State should be able to use it in other Mem­ ber States, unless the imperative require­ ments of consumer protection and fair trad­ ing dictate otherwise. If traders had to 'Appraising the proportionality of national modify their publicity brochures in accor­ rules which pursue a legitimate aim under dance with the legislation of each Member Community law involves weighing the State, they would incur the same sort of national interest in attaining that aim against additional burden that is imposed when the the Community interest in ensuring the free goods themselves have to be modified. movement of goods. In that regard, in order to verify that the restrictive effects on intra- Community trade of the rules at issue do not exceed what is necessary to achieve the aim in view, it must be considered whether those effects are direct, indirect or purely specula­ tive and whether those effects do not impede the marketing of imported products more 30 than the marketing of national products.'

some of the confusion created by the contra­ only one which need be considered here is dictions in the previous case-law. As is Hünermund. The effect of the Keck judg­ apparent from the judgment itself, the Court ment is still uncertain: perhaps it is best was concerned to discourage what it understood as excluding from the scope of regarded as excessive resort to Article 30. Article 30 only measures of an entirely gen­ The Court, having reaffirmed 'Cassis de eral character which do not preclude Dijon' in relation to measures laying down imports, which operate at the point of sale, requirements to be met by the goods in and which have no effect on trade other than question (such as requirements as to designa­ to reduce the overall quantity of goods sold tion, form, size, weight, composition, pre­ and which in doing so affect imports and sentation, labelling, packaging), held that a domestic products alike. law prohibiting the resale of goods at a loss by retailers lay outside the scope of Arti­ cle 30, observing that:

'... contrary to what has previously been decided, the application to products from other Member States of national provisions restricting or prohibiting certain selling 35. In Hünermund the Court applied the arrangements is not such as to hinder Keck judgment to a restriction on advertis­ directly or indirectly, actually or potentially, ing. The case concerned rules of professional trade between Member States within the conduct laid down by the body responsible meaning of the Dassonville judgment, pro­ for regulating the activities of pharmacists in vided that those provisions apply to all Baden-Württemberg. Under those rules 34

37. Were it not for the judgment in Hiiner- mund, it would perhaps not have been clear that the phrase 'national provisions restrict­ ing or prohibiting certain selling arrange­ ments' in Keck covered rules on advertising. For the reasons set out above, advertising restrictions may pose a particularly serious threat to the integration of markets. Possibly the Court was influenced in Hiinermund by the relatively insignificant nature of the 36. The Court recited paragraph 16 of the 35 restrictions in issue there, and did not envis­ Keck judgment and then stated that the age the same test applying to more serious conditions laid down in that paragraph for restrictions. If the test laid down in Keck is excluding a measure from the scope of Arti­ to be applied to the French rules in issue cle 30 were satisfied as regards the applica­ here, it will be necessary to consider whether tion of rules of professional conduct laid those rules 'apply to all affected traders oper­ down by a professional body which prohib­ ating within the national territory and ... ited pharmacists from advertising, outside affect in the same manner, in law and in fact, their pharmacies, parapharmaceutical prod­ the marketing of domestic products and ucts which they were authorized to sell. The those from other Member States'. In my Court observed that the rules applied, with­ view they do. First, just as in Keck the pro­ out distinguishing according to the origin of hibition on resale at a loss applied to all trad­ the goods in question, to all pharmacists in ers reselling goods in an unaltered state, so the area over which the professional body too in this case the prohibition on television had jurisdiction and did not affect the mar­ advertising is a general measure applicable to keting of products from other Member the distribution sector as a whole. Secondly, States differently from the way they affected except in certain specific cases — not in issue the marketing of domestic products. here — such as that of goods sold by the technique of direct television marketing (see paragraph below), die prohibition is likely to 35 — Paragraph 22. have an equal impact on the marketing of

39. Secondly, the exclusion from the scope of Article 30 of measures which 'affect in the same manner, in law and in fact, the market­ ing of domestic products and those from other Member States' amounts to introduc­ ing, in relation to restrictions on selling 38. I prefer however to take a different arrangements, a test of discrimination. That approach, even if that approach may lead in test, however, seems inappropriate. The cen­ this case to the same conclusion. In my view tral concern of the Treaty provisions on the the Court's reasoning — although not the free movement of goods is to prevent unjus­ result — in Keck is unsatisfactory for two tified obstacles to trade between Member reasons. First, it is inappropriate to make States. If an obstacle to inter-State trade rigid distinctions between different catego­ exists, it cannot cease to exist simply because ries of rules, and to apply different tests an identical obstacle affects domestic trade. I depending on the category to which particu­ have difficulty in accepting the proposition lar rules belong. The severity of the restric­ that a Member State may arbitrarily restrict tion imposed by different rules is merely one the marketing of goods from another Mem­ of degree. Measures affecting selling arrange­ ber State, provided only that it imposes the ments may create extremely serious obstacles same arbitrary restriction on the marketing to imports. For example, a rule permitting of domestic goods. If a Member State certain products to be sold only in a handful imposes a substantial barrier on access to the of small shops in a Member State would be almost as restrictive as an outright ban on market for certain products — for example, importation and marketing. The point is par­ by providing that they may be sold only in a ticularly well illustrated by restrictions on very limited number of establishments — advertising: the type of restriction in issue in and a manufacturer of those products in Hünermund may have had little impact on another Member State suffers economic loss

as a result, he will derive little consolation is that all undertakings which engage in a from the knowledge that a similar loss is sus­ legitimate economic activity in a Member tained by his competitors in the Member State should have unfettered access to the State which imposes the restriction. whole of the Community market, unless there is a valid reason for denying them full access to a part of that market. In spite of occasional inconsistencies in the reasoning of certain judgments, that seems to be the underlying principle which has inspired the Court's approach from Dassonville through 'Cassis de Dijon' to Keck. Virtually all of the cases are, in their result, consistent with the 40. Equally, from the point of view of the principle, even though some of them appear Treaty's concern to establish a single market, to be based on different reasoning. discrimination is not a helpful criterion: from that point of view, the fact that a Member State imposes similar restrictions on the mar­ keting of domestic goods is simply irrele­ vant. The adverse effect on the Community market is in no way alleviated; nor is the adverse effect on the economies of the other Member States, and so on the Community economy. Indeed the application of the discrimination test would lead to the frag­ mentation of the Community market, since traders would have to accept whatever restrictions on selling arrangements hap­ pened to exist in each Member State, and would have to adapt their own arrangements 42. If the principle is that all undertakings accordingly in each State. Restrictions on should have unfettered access to the whole trade should not be tested against local con­ of the Community market, then the appro­ ditions which happen to prevail in each priate test in my view is whether there is a Member State, but against the aim of access substantial restriction on that access. That to the entire Community market. A discrimi­ would of course amount to introducing a de nation test is therefore inconsistent as a mat­ minimis test into Article 30. Once it is recog­ ter of principle with the aims of the Treaty. nized that there is a need to limit the scope of Article 30 in order to prevent excessive interference in the regulatory powers of the Member States, a test based on the extent to which a measure hinders trade between Member States by restricting market access seems the most obvious solution. Indeed it is perhaps surprising that, in view of the avowed aim of preventing excessive recourse 41. The question then is what test should be to Article 30, the Court did not opt for such applied in order to determine whether a a solution in Keck. The reason may be that measure falls within the scope of Article 30. the Court was concerned lest a de minimis There is one guiding principle which seems test, if applied to all measures affecting trade to provide an appropriate test: that principle in goods, might induce national courts, who

43. Clearly it would not be appropriate to 45. Where, on the other hand, a measure apply a de minimis test to measures which applicable without distinction simply overtly discriminate against goods from restricts certain selling arrangements, by other Member States. Such measures are pro­ stipulating when, where, how, by whom or hibited by Article 30 (unless justified under at what price goods may be sold, its impact Article 36) even if their effect on inter-State will depend on a number of factors, such as trade is slight: there is a per se prohibition of whether it applies to certain goods (as in overtly discriminatory measures. Blesgen, Buet or Quietlynn), or to most goods (as in Torfaen), or to all goods (as in Keck), on the extent to which other selling arrangements remain available, and on whether the effect of the measure is direct or indirect, immediate or remote, or purely 36 37 speculative and uncertain. Accordingly, the magnitude of the barrier to market access may vary enormously: it may range from the insignificant to a quasi-prohibition. Clearly, 44. Only in relation to measures which are this is where a de minimis test could perform applicable without distinction to domestic a useful function. The distinction recognized goods and goods from other Member States in Keck between a prohibition of the kind in would it be necessary to introduce a require­ issue in 'Cassis de Dijon' and a mere restric­ ment that the restriction, actual or potential, tion on certain selling arrangements is there­ on access to the market must be substantial. fore valuable: the former inevitably creates a The impact on access to the market of mea­ substantial barrier to trade between Member sures applicable without distinction may States, whereas the latter may create such a vary greatly, depending on the nature of the measure in issue. Where such a measure pro­ hibits the sale of goods lawfully placed on the market in another Member State (as in 36 — As in paragraph 15 of the judgment in Stoke-on-Trent Council v B & Q (quoted above in paragraph). 'Cassis de Dijon'), it may be presumed to 37 — As in Case C-69/88 Krantz [1990] ECR I-583, para­ have a substantial impact on access to the graph 11 of the judgment.

47. A final point that should be noted is that the position is different with the prohibition of charges having equivalent effect to cus­ toms duties under Articles 12 and 16 of the Treaty. The Court has rightly held that that prohibition applies to all charges, however 43 46. It might be objected that the approach small. The scope of that prohibition, how­ advocated above is contrary to a number of ever, is far more specific than the scope of judgments in which the Court has expressly Article 30; moreover such charges, however rejected the idea that a measure should small, necessarily entail impeding the flow of be excluded from the scope of Arti­ goods by reason of the fact that they cross a cle 30 because its effect on imports is slight. frontier, when it is the object of those Treaty 44 However, in most of those cases the measure provisions to eliminate such frontiers; that in question was plainly discriminatory, as in rationale does not apply with the same force 3 e to the prohibition of measures having equi­ Franti, 8 Commission v Franc 39and Com- 40 valent effect under Article 30. mission v Italy; and in the last case the effect of the measure was in any event recog­ 41 nized to be substantial. It is true that in 42 Van de Haar and Kaveka de Meem the Court rejected a de minimis test in relation to a measure applicable without distinction (namely, a price-fixing regulation); however, it did so purely in the abstract and went on to rule, in the same judgment, that a price- fixing regulation is contrary to Arti­ 48. In Keck itself, the result is consistent cle 30 only if prices are fixed at such a level with the view taken above. A law which pro­ hibits all retailers of all goods from reselling goods at less than cost price is unlikely to have a significant impact on the marketing of 38 — Case 16/83 [1984] ECR 1299. 39 — Case 269/83 [1985] ECR 837. 40 — Case 103/84 Commission v Italy [1986] ECR 1759. 41 — Paragraph 18 of the judgment. 43 — See. for example, Case 24/68 Commission v Italy [1969] 42 — Joined Cases 177/82 and 178/82 [1984] ECR 1797, para­ ECR 193, paragraph 9 of the judgment. graph 13 of the judgment. 44 — Ibid.

51. The measure directly in issue in this case is the prohibition of advertising on television for the distribution sector imposed by the French legislation. But the reality of the bar­ 50. How is that test to be applied to restric­ rier to imports which even a partial ban on tions on advertising? As I have already sug­ the advertising of specific products may rep­ gested, in view of the significance of freedom resent may be illustrated by the example of to advertise, a total ban on the advertising of another prohibition in the same legislation. a product which may lawfully be sold in the In France it is against the law to advertise on television alcoholic beverages with an alco­ hol content in excess of 1.2 degrees. Such a measure might prove to be justified under 45 — See also Roth, Comment on Keck and Hünermund, Com- Article 36 of the Treaty, but it cannot be con- mon Market Law Review 1994, 845, especially at p. 853.

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tended that it falls outside Article 30. If a advertising has no substantial effect on inter- German brewer whose beers have not hith­ State trade and does not constitute a barrier erto been marketed in France decides to to market penetration for imported goods, enter the French market, he is unlikely to there is no objection to excluding it from the have a significant impact on the market ambit of Article 30. unless he can promote his products by advertising. Television is recognized as a par­ ticularly effective medium for advertising, especially as regards consumer products intended for a mass market. If the German brewer is prevented from advertising on tele­ vision, he will find it more difficult to pene­ trate the French market, which will continue to be dominated by the well-established domestic brands.

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54. However, although the effects of a of legislation restricting the opening hours of restriction applicable only to the distribution shops, mentioned above, the measure may sector are generally internal to the Member result in a slight reduction in the total vol­ State concerned, it is possible to imagine ume of sales of goods, including imports. situations in which a genuine obstacle to But it cannot be said to have a substantial imports may arise. One example is provided impact on access to the market. It therefore by the system of direct television marketing falls in my view outside the scope of Arti­ which has become increasingly common in cle 30. Europe in recent years. A distributor adver­ tises goods on television and then displays telephone numbers through which the goods can be ordered in the various countries in which the television channel is received. If such a system were prohibited in France, the resulting obstacle to trade could hardly be described as insubstantial. That type of obstacle is moreover inimical to the concept of a single market, because it prevents dis­ (e) The issue of justification tributors from developing a global marketing strategy. If in such a case a distributor estab­ lished in another Member State sought to rely on the Treaty, then an issue might well arise under Article 30 or Article 59. Again, it is possible to envisage that an undertaking from another Member State might seek to establish a supermarket chain in France: in that case, the prohibition of televised adver­ tising in the distribution sector might raise an issue under Article 52 of the Treaty.

57. In order for the measure to be justified it on the advertising of alcoholic beverages is necessary to establish (a) that the measure may be justified on grounds of protection of pursues a legitimate aim, (b) that it is an public health, provided that they are non­ appropriate means of pursuing that aim and discriminatory and not disproportionate. An (c) that the aim could not be pursued just as assessment of the proportionality of the ban effectively by alternative means that would on advertising alcoholic beverages on televi­ be less restrictive of trade between Member sion would require a detailed analysis of the States. effects of that ban, as regards both trade and public health, and an examination of the available alternatives. These matters have not been fully discussed before the Court in the present case, doubtless because the case is not directly concerned with the advertising of alcoholic beverages, and it would not 58. According to the French Government, therefore be appropriate to rule definitively the purpose of the contested decree, at least on whether the advertising ban is justified in as far as the distribution sector is concerned, so far as it extends to alcoholic beverages. I is to protect the regional daily press and to will simply note that the threshold of guarantee pluralism in the media, the 1.2 degrees seems unusually low and would assumption being that advertisers who are appear to preclude even the advertising of prevented from using the medium of televi­ low-alcohol beers, that it is not easy to see sion will instead advertise in regional daily why the advertising of alcoholic beverages newspapers. It is not entirely clear whether on television is more harmful to public that is also the reason (or one of the reasons) health than the advertising of alcoholic bev­ for prohibiting television advertising for erages in newspapers, magazines and cin­ alcoholic beverages, literary publications, the emas, and that it is arguable that more limited press and the cinema. It seems probable that restrictions (for example, rules about the the main purpose of restricting the advertis­ content of advertisements, such as those laid ing of alcoholic beverages is to protect public down in Article 15 of Directive 89/552) health by discouraging the excessive con­ would protect public health just as effec­ sumption of alcohol. It is also conceivable tively. that the restrictions on advertising books, magazines, newspapers and cinematographic works are motivated by the underlying belief that vigorous competition is not desirable in the cultural field.

61. There is however no need to dwell on that issue because it is in any event difficult to see how the contested measures can sat­ isfy the requirements of proportionality. In the first place, it is questionable whether those measures can be an effective means of protecting the regional daily press, since 62. Even if the contested measure were an there is no guarantee that those who are pre­ effective means of assisting regional daily vented from advertising on television will newspapers, there remains the further objec­ advertise instead in regional daily news­ tion that no good reason has been advanced papers; in the absence of an obligation to for imposing the burden of supporting direct a part of their advertising budget to regional daily newspapers on distributors, regional daily newspapers, they might literary publishers, cinema owners and film choose alternative forms of advertising, makers. The choice of those sectors of the economy as the vehicle for maintaining plu­ ralism in the press seems arbitrary. In my view, it would be difficult to hold that a mea­ 48 — See most recently Case C-23/93 TV10 SA, judgment of 5 October 1994, [1994] ECR 1-4795, paragraphs 18 and 19; sure having equivalent effect to a quantitative see also Article 19 of the 'Television without frontiers' directive, set out below, paragraph 65. restriction on imports is justified when it

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operates in an arbitrary manner. Accord­ inasmuch as it allows Member States, subject ingly, if I had taken the view that the restric­ to stringent conditions, to suspend broad­ tion on advertising fell within Article 30, I casts which 'manifestly, seriously and would not regard it as capable of being jus­ gravely' infringe Article 22 of the directive. tified. The latter provision requires Member States to ensure that broadcasters under their juris­ diction do not broadcast programmes which might seriously impair the physical, mental or moral development of minors, in particu­ lar those that involve pornography or gra­ Council Directive 89/552/EEC tuitous violence.

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However, this percentage may be increased for televised advertising with the public to 20% to include forms of advertisements interest, talcing account in particular of: such as direct offers to the public for the sale, purchase or rental of products or for the provision of services, provided the amount of spot advertising does not exceed 15%.

(a) the role of television in providing infor­ mation, education, culture and entertain­ ment;

2. The amount of spot advertising within a given one-hour period shall not exceed 20%. (b)the protection of pluralism of informa­ tion and of the media.'

3. Without prejudice to the provisions of paragraph 1, forms of advertisements such as Article 20 provides: direct offers to the public for the sale, pur­ chase or rental of products or for the provi­ sions of services shall not exceed one hour per day.'

more detailed or stricter rules in the areas down in the directive: Articles 3(1), 19 and covered by the directive. 20, which I have already cited, and Article 8, which allows Member States to lay down more detailed or stricter rules 'for purposes of language policy'. The last-mentioned pro­ vision is clearly not relevant. Hence it is nec­ essary to examine Articles 3(1), 19 and 20 in order to determine whether they authorize Member States to prohibit television adver­ tising, as regards broadcasters under their 66. The directive expressly prohibits televi­ jurisdiction, for any product, service or sec­ sion advertising for only two classes of prod­ tor of economic activity other than those uct or service: namely, cigarettes and other expressly excluded from television advertis­ tobacco products (Article 13) and medicinal ing by the directive itself. products and medicinal treatment available only on prescription (Article 14). The ques­ tion that arises in these proceedings is whether the directive allows Member States to prohibit television advertising, as regards broadcasters under their jurisdiction, for other classes of product or sectors of eco­ nomic activity, such as the distribution sec­ tor. On that point, the directive is somewhat ambiguous: it does not state clearly whether other products or services may or may not be excluded from television advertising.

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'broadcasts intended solely for the national would itself be devoid of purpose. It could territory which may not be received, directly be that the explanation for this apparent con­ or indirectly, in one or more other Member tradiction in the scheme of the directive lies 50 States'. Here, it is sufficient to note that both in its complicated legislative history. TF1 and M6 may be received in other Mem­ ber States, at least in frontier zones.

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73. This argument must clearly fail. As Leclerc-Siplec recognizes, Articles 85 and 51 — Case C-2/9I [1993] ECR I-5751, paragraph 14 of the judg­ 86 are concerned, not with measures adopted ment. 52 — Case C-245/91 [1993] ECR I-5851, paragraph 10 of the by the State, but with the conduct of under­ judgment.

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Conclusion

75. I am accordingly of the opinion that the question submitted by the Tribunal de Commerce de Paris should be answered as follows:

(1) A measure enacted by a Member State which prevents distributors established in that Member State from advertising on television does not constitute a meas­ ure equivalent in effect to a quantitative restriction on imports, within the meaning of Article 30 of the EEC Treaty.