C-320/94

* Original language: English. 6. The Directive is similar in content to the 1 — Council Directive 89/552/EEC of 3 October 1989 on the coordination of certain provisions laid down by law, regu­ European Convention on Transfrontier Tele­ lation or administrative action in Member States concerning vision of 5 May 1989 ('the Convention'). the pursuit of television broadcasting activities, OJ 1989 L 298, p. 23. That similarity appears to be no coincidence.

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9. Article 12 of Ministerial Decree No 581/93 provides that, unlike direct offers to the public, 'telepromotions' cannot benefit from the additional transmission time pro­ vided for in Article 18 of the Directive. 7. This is the first occasion upon which this Court has been required to address questions relating to the interpretation of these two provisions of the Directive. Questions relat­ ing to other provisions of the Directive arose for the first time in Leclerc Siplec v TF1 Pu- 10. Article 4 of Ministerial Decree blicité and M6 Publicité, 5 and arc also cur­ No 581/93 allows the sponsor to be named rently before the Court in Case C-222/94 only in the advance publicity for the pro­ Commission v United Kingdom, Case grammes and just prior to commencement of C-11/95 Commission v Belgium, Joined the programme, and/or in the information 9 Cases C-34/95, C-35/95 and C-36/95 De shown after the end of the programme. Agostini, Case C-14/96 Denuit and Case C-56/96 VT4 Limited. 6 — Official Journal of the Italian Republic No 246 of 19 Octo ber 1992. Alter amendment this was converted into Law No 483 of 1 7 December 1992 Official Journal of the Italian Republic No 297 of 18 December 1992. 2 Bullam of the EC, No 12/1988, p. 8, at p. 10. 7 Official Journal of the Italian Republic No 19 of 24 January 3 The fourth recital states 'Whereas the Council of Europe has 1992. adopted the European Convention on Translrontier Televi 8 — Official Journal of the Italian Republic No 8 of 12 January slon.' 1994. 4 Article 17(1) of the Convention provides that 'when a pro 9 Article (4) 1provides that 'sponsorship of television pro gramme or series of programmes is sponsored in whole or in grammes may lake the form exclusively of invitations to part, it shall clearly be identified as such by appropriate cred watch and offers of programmes which immediately precede its at the beginning and/or end of the programme'. the sponsored programme, and also of thanks or the like to 5 — Case C 412/93 [1995] ECU I 179. viewers for watching at the end of the programme'

12. It is relevant to note also that it is alleged that the Minister exceeded the powers con­ 11. RTI and Publitalia 80 (Case C-320/94), ferred on him by the legislature since it is Associazione Nazionale Teleradio Indipen­ contended that the transposition measure denti and Radio Torre (Case C-328/94), Rete permitted only those amendments to the law A s. r. 1. (Case C-329/94), Vallau Italiana previously in force which were necessary in Promomarket s. r. 1. (Case C-337/94), Radio order to bring it into conformity with Com­ Italia Solo Musica s. r. 1., Radio Montestella munity legislation. In Case C-320/94 and s. r. 1., Radio Peter Flower s. r. 1. and Radio Case C-339/94 it is argued that the Italian Dimensione Suono s. p. a. (Case C-338/94), law on sponsorship is in breach of the and GETE s. r. 1. (Case C-339/94), ('the national transposition measure which per­ applicants') brought actions before the Tri­ mitted only the 'necessary amendments' to bunale Amministrativo Regionale (Regional be made to the law previously in force in Administrative Court), Lazio, seeking annul­ order to implement Community law. Simi­ ment of Ministerial Decree No 581/93. The larly, in Case C-320/94 and Case C-337/94 it alleged grounds for annulment are numer­ is alleged that it was not a 'necessary amend­ ous. Not all are relevant to the questions ment' to provide that telepromotions should

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be subject to the same restrictions concern­ on account of some of their inherent ing concentration of advertising as govern characteristics (telepromotions themselves spot advertisements. can be identified by the fact that, while suitable breaks clearly distinguish them from their editorial context, nevertheless there is generally an element of visual continuity and they are more time- consuming than spot advertising owing to the inclusion of entertainment and/or games), or: The national court's questions

16. In my view, the reference can clearly not 14. Written observations have been submit­ be said to be inadmissible. It is necessary to ted by the following: Reti Televisive Italiane establish whether, on the proper interpreta­ S. p. a. (a plaintiff in Case C-320/94, 'RTI'); tion of the Directive, the Member States have Federazione Italiana Editori Giornali (Italian such a right. Moreover, even if Member Federation of Newspaper Publishers, States are entitled to adopt stricter rules than 'FIEG'), which is intervening in the national those required by the Directive, I consider proceedings on behalf of the defendants in that it is still necessary for the Court to all six cases; Coordinamento delle Associazi­ examine the exact requirements imposed by oni per la Difesa dell'Ambiente e dei Diritti these two articles as requested by the degli Utenti e Consumatori (Grouping of national court. Although the Court will associations for the protection of the envi­ examine the conditions under which a case ronment and users' and consumers' rights, has been referred to it by a national court so 'Codacons') and Associazione Utenti Radio­ as to ensure that it will not be giving a ruling televisivi (Radio and television users' associa­ on a general or hypothetical question, it has tion 'AUR'), both of which are intervening also recognized that the national court is in on behalf of the defendants in Cases the best position to appreciate the necessity C-320/94, C-329/94, and C-337/94; the Ital­ for a preliminary ruling on a particular ian, Greek, Austrian and Portuguese Gov­ 10 point. Whilst the Court will decline to ernments; and the Commission. answer questions referred by a national court on the grounds of irrelevance if it is manifest that the questions referred bear no relation 11 to the subject-matter of the main action, that is not so in the present case. The ques­ tions as to the exact requirements imposed by the two provisions are far from mani­ festly irrelevant because interpretation of both articles could be relevant to the ques­ Admissibility tion of the validity of the national legislation under national law. As I mentioned

previously, it is argued that the national docs not include direct offers to the public transposition measure permitted only the for the sale, purchase or rental of products or 'necessary amendments' to be made to the for the provision of services in return for law previously in force in order to imple­ payment.' ment Community law: thus, if the Directive itself does not limit the reference to the sponsor to the beginning and/or end of pro­ grammes, or if it does not exclude telepro­ motions from the category benefiting from the additional 5% transmission time, then, even if Italy was entitled to exercise its dis­ cretion so as to legislate to that effect, it was 18. Article 1(d) of the Directive defines arguably not 'necessary' for the implementa­ 'sponsorship' as 'any contribution made by a tion of Community law for Italy to do so, public or private undertaking not engaged in and the Italian legislation might be invalid as television broadcasting activities or in the a matter of Italian law. The decision on that production of audio-visual works, to the question is of course entirely a matter for the financing of television programmes with a Italian courts, but it can certainly be con­ view to promoting its name, its trade mark, tended that that question turns upon the its image, its activities or its products'. interpretation of the Directive and that the question of Community law posed arises directly from the facts of the case. The refer­ ence is accordingly admissible.

19. Article 17(1 )(c) of the Directive provides that sponsored television programmes 'must not encourage the purchase or rental of the products or services of the sponsor or a third party, in particular by making special pro­ motional references to those products or ser­ Definition of terms vices'.

21. Direct offers to the public appear to be products or provide the services or their what is otherwise known as teleshopping: i. e agents, rather than by the broadcasters them­ programmes showing products which are on selves. RTI observes that the emphasis on direct offer in the sense that they can be suggestive impact in spot advertisements is directly ordered by telephone, mail or video­ to be contrasted with the way in which more tex and will be delivered to viewers at time-consuming forms of publicity concen­ 12 home. Teleshopping has accordingly been trate on convincing the viewer by means of described as electronic retailing. Offer and description of the product. acceptance create a contractual tie and the aim is said to be direct sales rather than simple publicity. It appears that the owners of the goods or providers of the services make and present teleshopping programmes, which, in comparison to the length of spot advertisements (discussed below), are usually rather long. By virtue of Article 1(b) of the Directive (quoted at paragraph 17 above), direct offers to the public are to be consid­ ered as 'television advertising' only for the purposes of Article 18 of the Directive. 23. According to the Commission's observa­ tions and those of FIEG, telepromotions are a form of publicity which appears in the context of a particular programme and dur­ ing that programme; as a result they can sometimes appear to be an integral part of the programme, although they are supposed to be clearly distinct from the programme and identifiable as publicity. My understand­ ing is that one example of this would be a programme on dogs during which the pre­ senter promotes a certain type of dog food. The Commission and FIEG also explain that 22. According to the Commission's observa­ telepromotions are produced in the form of a tions, spot advertisements are short promo­ film by the television channel or the pro­ tions in the form of films which last usually ducer of the programme and are presented a very short time, have an important sugges­ directly by the presenter or actors involved tive impact, and appear in intervals during or in the programme. According to RTI, this between programmes. The Commission fur­ form of publicity is characterized by the fact ther explains that they usually appear in that it combines publicity with entertain­ groups of two or more ('isolated advertising ment, including games reserved to the pur­ spots' remaining 'the exception' as required chasers of the products in question or games by Article 10(2) of the Directive), and that which have those products as a prize. Article they are produced by those who own the 12(1)(b) of the Italian Ministerial Decree No 581/93 defines telepromotions as the dis­ play of products, the oral or visual presenta­ tion of goods, services, the name, the mark 12 — For a description of teleshopping see Programme sponsor- ship and new forms of commercial promotion on television, or the activity of a producer of goods or of a Dossier No 9 of the Council of Europe, p. 59, at para­ provider of services made by the broadcaster, graph 341.

Accordingly, various provisions of the Interpretation of the Directive Directive confer on the Member States dis­ cretion to adopt stricter rules, as I shall dis­ cuss at paragraphs 39 to 46 below.

24. Before turning to consider the interpre­ tation of the two particular provisions of the Article 18(1): meaning of 'such as direct offers Directive which arc in issue in the present to the public ... ' cases, it is useful to consider the general scheme and purpose of the Directive.

26. Numerous arguments, on both sides of the debate, have been advanced in relation to the question whether telepromotions should be capable of benefiting from the possibility 25. It is clear from the preamble to and text of the additional transmission time made of the Directive that its aim is merely to available by Article 18(1) of the Directive to

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OPINION OF MR JACOBS — JOINED CASES C-320/94, C-328/94, C-329/94, C-337/94, C-338/94 AND C-339/94

'forms of advertisements such as direct offers 27. Those who contend that telepromotions to the public ...'. Those who contend that should be capable of benefiting from the telepromotions cannot form part of that cat­ additional transmission time provided for in egory of advertisements (Italy, Greece, Article 18(1) (RTI and the Commission) FIEG, and Codacons) have concentrated on argue, inter alia, as follows: emphasizing the differences between direct offers and telepromotions. They make, inter alia, the following points:

(c) Telepromotions help finance smaller tele­ 28. Reference is also made to a proposed vision companies. revision of Article 18 which replaced the phrase 'such as direct offers to the public ...' with the phrase 'other forms of advertising 14 and/or teleshopping spots ...'. However, that can have no bearing on the meaning of the original text: no amendment has yet been (f) Were it not for the increase of the daily accepted by the Council and the European allowance for forms of advertisements Parliament and, moreover, it is not clear that other than spot advertisements, advertise­ there is agreement as to what the original ments other than spot advertisements text was intended to mean. would not exist: all 15% of the permitted transmission time would be devoted to spot advertisements since they arc more lucrative for the owners of the television channels.

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OPINION OF MR JACOBS - JOINED CASES C-320/94, C-328/94, C-329/94, C-337/94, C-338/94 AND C-339/94

tation can take us. It is thus necessary to Directive (which is identical to Article 12(2) consider next the correct approach to the of the Convention) provides that 'the Directive as a whole. amount of spot advertising within a given one-hour period shall not exceed 20 % ' of the transmission time, forms of advertise­ ments such as direct offers to the public are not subject to such an hourly limit under Article 18(2) but rather to a daily limit under Article 18(3). Article 18(3) is virtually identi­ 16 cal to Article 12(3) of the Convention and 30. Since, as discussed at paragraph 25 provides that forms of advertisements such above, the Directive is a minimum harmoni­ as direct offers to the public 'shall not exceed zation measure, I consider that any ambigu­ one hour per day'. As the Explanatory 17 ity in the Directive should be construed in Report to the Convention indicates it was favour of a broad discretion for Member probably considered necessary to introduce States when implementing its provisions. the two different types of time-limit because it could be difficult for forms of advertise­ ments which are more time-consuming than spot advertisements to comply with a rule limiting them to a time-limit within a given one-hour period.

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proviso that the telepromotions in question 35. Moreover, what appears to be the clear do not infringe any other provisions of the meaning of the provision is confirmed by the Directive, such as the prohibition in fact that in the Commission's original draft Article 10(4) of surreptitious advertising. of the Directive, submitted to the Council on 18 30 April 1986, mention of the sponsor was expressly limited to the beginning and end of the programme but that that express limita­ tion was dropped, despite an attempt by the European Parliament to have it reinstated. 19

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OPINION OF MR JACOBS - JOINED CASES C-320/94, C-328/94, C 329/94, C-337/94, C-338/94 AND C-339/94

37. In conclusion, therefore, I consider that 40. Article 3(1) (which appears under the Article 17(1)(b) provides that the name and/ heading General Provisions') provides (not­ or logo of the sponsor must appear at the withstanding the error in the English text) beginning and/or end of programmes but that Member States shall remain free, as that it does not prohibit reference to the regards television broadcasters under their sponsor's name and/or logo appearing dur­ jurisdiction, to lay down more detailed or ing programmes. stricter rules in the areas covered by the 20 Directive.

Member States' discretion 41. Article 8 provides that Member States may lay down stricter rules when they con­ sider it necessary for the purposes of lan­ guage policy, and is accordingly irrelevant to the present case.

38. It should be clear from the above discus­ sion of the interpretation of the wording of Article 17(1)(b) and Article 18(1) that, whilst the former does not prohibit references to the sponsors' names and logos during pro­ grammes, and the latter entitles Member 42. Article 19 provides that: States to include telepromotions within the extra 5% transmission time, those articles do not oblige Member States to allow references to sponsors during programmes or to include telepromotions within the extra 5% transmission time.

'Member States may lay down stricter rules than those in Article 18 for programming time and the procedures for television broad­ casting for television broadcasters under their jurisdiction ... .'

43. Finally, Article 20 provides that: 45. In Leclerc the national provisions at issue concerned the types of product or service that could be advertised; those provisions could thus not fall within the scope of Article 19 since Article 19 refers only to 'programming time and the procedures for television broadcasting'. In the present case, however, we are concerned with the amount 'Without prejudice to Article 3, Member of daily transmission time for certain adver­ States may, with due regard for Community tisements, which clearly falls within the law, lay down conditions other than those wording of Article 19. As I reasoned in my laid down in Article 11(2) to (5) and in 23 Opinion in Leclerc, since the Directive is a Article 18 in respect of broadcasts intended measure of minimal harmonization, I con­ solely for the national territory which may sider that it should not be construed as not be received, directly or indirectly, in one restricting the Member States' discretion or more other Member States.' unless the wording is clear, and the Court appears to have inclined to that view in its 24 judgment in Leclerc. The reference in Article 19 to 'stricter rules for programming time' should therefore be interpreted as allowing Member States to adopt stricter rules as to the definition of the type of 44. In its judgment in Leclerc the Court advertisements which can benefit from the addressed the question whether, by virtue of additional advertising time provided for in Article 3(1), Member States may impose on Article 18. television broadcasters under their jurisdic­ tion stricter rules than those laid down by the provisions of the Directive concerning television advertising and sponsorship where the circumstances are not covered by Articles 19 or 20. The Court pointed out that, while Article 20 states expressly that it applies without prejudice to Article 3, there is no such statement in Article 19. However, it concluded that 'it cannot be inferred from that that Member States' freedom to impose 46. With regard to the rules on sponsorship, stricter rules for televised advertising and I consider that Article 3(1) can apply. Thus, sponsorship is limited to the circumstances even if Article 17(1)(b) does not restrict ref­ 21 set out in Article 19' and that 'neither the erence to the sponsor to the beginning and/ recitals in the preamble nor the objective of or end of the programme, I consider that the Directive requires Article 19 to be Member States are not prohibited by the interpreted as divesting Member States Directive from passing legislation which of the freedom conferred on them by docs restrict reference to the sponsor in this 2 Article 3(1)'. 2 manner.

48. That does not, however, mean that Italy 50. However, no question on Article 59 or would be entitled to prevent or hinder the Article 30 has been referred by the national reception or retransmission of broadcasts court, and there is nothing to suggest that from other Member States on the grounds the measures infringe those articles (as might that they did not comply with the stricter be the case if the restrictions were dispropor­ 25 Italian laws. As I mentioned earlier, the tionate, selective, or discriminatory, or sub­ purpose behind the Directive is to establish stantially impeded access to the market). the 'minimum rules needed to guarantee freedom of transmission in broadcasting'. Thus whilst Member States may avail them­ selves of the discretion to adopt stricter pro­ visions for broadcasters under their jurisdic­ tion, as is made clear by Article 3(1) and Article 19, they may not require broadcasters 51. Finally, I should mention also Article 10 from other Member States to comply with of the European Convention on Human such provisions. Rights which concerns freedom of expres­ sion. Even on the assumption that, in impos­ ing restrictions on advertising of the kind in issue in these proceedings, Member States arc acting within the scope of Community law and that, in accordance with the Court's 26 case-law, regard should accordingly be had to that Convention, the case-law of the European Court of Human Rights does not 49. It should also be noted that a provision suggest that such restrictions will infringe in any Community measure which allows the Convention; on the contrary, it is note­ Member States to adopt stricter rules in a worthy that the European Court of Human particular area does not entitle Member Rights has shown itself willing to accept States to adopt whatever rules they like. considerable restrictions upon commercial They must still of course ensure that the 27 advertising. rules which they adopt comply with Com­ munity law. Thus, in the present case, Italy

(1) Article 18 of Directive 89 / 552 / EEC is to be interpreted as meaning that the expression 'forms of advertisements such as direct offers to the public' is used, for the purposes of increasing the maximum amount of advertising permitted to 20 % of daily transmission time , purely by way of example and is capable of covering other forms of advertising as well, apart from spot advertising, including for the purposes of these cases telepromotions .

(2) Article 17(1)(b) of Directive 89 / 552 / EEC is to be interpreted as permitting ref­ erences to the sponsor's name and / or logo during programmes .

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