C-34/95

1 — Law 1975: 1418. It was stated at the hearing that that law had been replaced with effect from 1 January 1996 by a new Mar- keting Practices Law, the relevant provisions of which are to * Original language: English. the same effect.

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alia to order the trader to provide such (a) marketing which conflicts with manda­ information in its advertising. tory legal provisions may be considered to be unfair within the meaning of the Marketing Practices Law and

(b) advertising which is misleading is nor­ 7. In the preamble to the Marketing Prac­ mally considered to be unfair within the tices Law it is stated that that law is appli­ meaning of that law. cable to all marketing practices directed at the Swedish public even if they consist of, for instance, advertisements produced abroad but distributed from there to recipients in Sweden.

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Marknadsdomstol in accordance with the product is not normally sold at the Marketing Practices Law (a) to prohibit the same price as that indicated in the publisher of the magazine from marketing its advertising at issue; product in a way designed to attract the attention of children under 12 or (b) in the alternative to order it to make the price of the entire series of 18 issues clear in its advertising and to prohibit it from implying (iv) price comparisons which the adver­ in its advertising that complete parts for a tiser cannot show to relate to the fluorescent dinosaur model can be collected same or equivalent products; and for the price of one issue rather than the price of the entire series.

(v) indications that in order to receive 12. The second case concerns television certain extra items the consumer advertising for skin-care products. The Con­ must order within 20 minutes or in sumer Ombudsman asks the Marknadsdom­ a comparably short period of time; stol in accordance with the Marketing Prac­ and tices Law

(b) to order the advertiser to indicate clearly (a) to prohibit the advertiser from making, additional costs for postage, delivery etc. in connection with the marketing of skin-care products,

13. The third case concerns television adver­ (i) statements as to the products' effect tising for detergents. The Consumer on the skin which are not suscep­ Ombudsman asks the Marknadsdomstol in tible of corroboration at the time of accordance with the Marketing Practices marketing; Law to prohibit the advertiser from (a) mak­ ing statements about the products' effective­ ness and environmental effect which are not susceptible of corroboration and (b) using (ii) statements that the products have imprecise phrases suggesting that the prod­ healing or therapeutic effects when uct is beneficial to the environment. they have not been approved as authorized pharmaceuticals;

15. TV3 is a company established in the United Kingdom. It broadcasts television programmes by satellite from the United 17. The advertisement in the first case had, Kingdom to Denmark, Sweden and Norway. before being shown on TV3 in September It appears from the observations of the 1993, already been shown in different lan­ respondent company in the second and third guage versions in all the then EC Member cases that the signal retransmitted from the States except Greece, where it was not satellite may be received either directly by launched until January 1995 and where it has viewers with parabolic antennae (satellite apparently since been advertised. Nowhere dishes) or by cable companies which then except in the United Kingdom was there any retransmit to viewers by cable. Although the suggestion that the advertisement might con­ same video signals are broadcast to all receiv­ flict with domestic legislation. In the United ing States, recipients receive the sound sig­ Kingdom, the Independent Television Com­ nals in the language of the region concerned. mission reviewed the advertisement and found no grounds to object to it.

16. The respondent company in the first case, De Agostini (Svenska) Förlag AB ('De 18. The respondent company in the second Agostini'), is a Swedish company which is and third cases, TV-Shop i Sverige AB ('TV- part of an Italian group, Istituto Geografico Shop'), is a Swedish company belonging to De Agostini, with companies in several an international group with subsidiaries European countries. The group's activities throughout Europe (both Member States and consist mainly in publishing, including the non-member States) and beyond. TV-Shop's publication of magazines in various Euro­ business consists in the television marketing pean languages. The children's magazine in and telephone selling of imported goods: question is described by De Agostini as an potential customers telephone their orders

19. De Agostini and TV-Shop argue essen­ 21. It may be noted that the EFTA Court tially that the Swedish law prohibitions in gave judgment in two joined cases involving question are contrary to Articles 30 and 59 Norway brought under the Television Direc­ of the EC Treaty and to Council Directive tive and Articles 11 and 13 of the EEA 89/552/EEC of 3 October 1989 on the coor­ Agreement, which are equivalent to dination of certain provisions laid down by 6 Articles 30 and 59 of the EC Treaty. Those law, regulation or administrative action in cases are analogous to Case C-34/95 De Member States concerning the pursuit of Agostini in that they concern a Norwegian television broadcasting activities ('the Televi­ 5 prohibition on television advertisements spe­ sion Directive'). cifically targeting children. The EFTA Court advised that the directive precluded a prohi­ bition imposed on an advertiser whereby he is prevented from showing an advertisement contained in a television programme of a broadcaster established in another EEA State if that arose as a consequence of a general prohibition laid down in national law of advertisements which specifically target chil­ 20. The references were originally directed 7 dren. At the hearing of the present cases to the EFTA Court by way of requests for before this Court, it was stated on behalf of an advisory opinion made by the Marknads­ the Norwegian Government (which submit­ domstol on 30 August 1994. Those requests ted observations pursuant to Article 20 of were withdrawn after Sweden's accession to the Statute of the Court of Justice of the EC) the European Union on 1 January 1995. By that the Norwegian prohibition had not been orders of 7 February 1995 the Marknads­ enforced since that judgment. domstol requested a preliminary ruling from this Court on the question whether

... this Directive, being confined specifically to television broadcasting rules, is without 23. The preamble provides as follows: prejudice to existing or future Community acts of harmonization, in particular to satisfy mandatory requirements concerning the pro­ tection of consumers and the fairness of 1 commercial transactions and competition; 1 '... it is consequently necessary and sufficient that all broadcasts comply with the law of [the] Member State from which they ema­ 8 nate;

... in order to ensure that the interests of consumers as television viewers are fully and ... it is necessary, in the common market, that properly protected, it is essential for televi­ all broadcasts emanating from and intended sion advertising to be subject to a certain for reception within the Community and in number of minimum rules and standards and particular those intended for reception in that the Member States must maintain the another Member State, should respect the right to set more detailed or stricter rules law of the originating Member State appli­ cable to broadcasts intended for reception

9 — 14th recital. 10 — 15th recital. 8 — 12th recital. 11 — 17th recital.

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and in certain circumstances to lay down dif­ for the sale, purchase or rental of products or ferent conditions for television broadcasters for the provision of services in return for 1 1 under their jurisdiction; 2 payment.' 4

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which fall within the fields coordinated by mentioned below. Article 16, which concerns this Directive.' the protection of minors, provides:

27. The only exception to that principle envisaged by the directive relates to repeated 'Television advertising shall not cause moral manifest, serious and grave infringements of or physical detriment to minors, and shall Article 22, which seeks essentially to protect therefore comply with the following criteria minors from exposure to programmes for their protection: involving pornography or gratuitous vio­ lence or other specified offensive content. Although none of the situations there described is relevant to these cases, the fact that it is only in those highly specific and extreme circumstances that a Member State is permitted by the directive to suspend (a) it shall not directly exhort minors to buy retransmission of broadcasts from another a product or a service by exploiting their Member State demonstrates the significance inexperience or credulity; in the scheme of the directive of the trans­ mitting State principle.

(b) it shall not directly encourage minors to persuade their parents or others to pur­ 28. Article 3(1) (which is unfortunately chase the goods or services being adver­ incorrectly translated in the English version tised; of the directive) permits Member States to lay down more detailed or stricter rules in the areas covered by the directive with regard to television broadcasters under their jurisdiction. Article 3(2) requires Member States to ensure that television broadcasters under their jurisdiction comply with the (c) it shall not exploit the special trust provisions of the directive. minors place in parents, teachers or other persons;

34. That proposition is in my view unten­ able. For the reasons given by the Court in 15 The argument that TV3 is a Swedish channel Commission v United Kingdom with regard to the meaning of the same term in Article 2(1) of the Television Directive, I consider that the Member State under whose jurisdiction a broadcaster comes is the Member State in which that broadcaster is established. Since TV3 is established in the

32. First, the Consumer Ombudsman argues in effect that TV3 must in practice be regarded as a Swedish television channel in 15 — Case C-222/94, [1996] ECR I-4025; see paragraphs 35 to 42 of the judgment and see also paragraphs 32 to 75 of the the same way as TV4, on the basis that (a) all Opinion of Advocate General Lenz.

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35. Secondly, it is argued by the Consumer 39. Finally, to regard the activity of broad­ Ombudsman and the Swedish, Finnish and casting as intrinsically distinct from ancillary Norwegian Governments that the directive activities such as advertising could pave the in general and the transmitting State prin­ way for Member States to frame legislative ciple in particular cover only the conduct of measures so as to be applicable only to pro­ broadcasters and not that of advertisers, so ducers, advertisers, sponsors, etc., thereby in that the directive does not prevent a Member fact fettering broadcasting activities as a State from taking action, as in this case, whole albeit without formal contravention of against an advertiser in respect of television the directive. Such a construction cannot be advertisements broadcast from another consistent with the objectives of the directive Member State. or the intentions of the legislature.

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44. In TV10 the Court ruled that the Treaty 41. That argument is based on Van Binsber- provisions on freedom to provide services 16 gen v Bedrijfsvereniging Metaalnijverheid, did not preclude a Member State from treat­ in which the Court first formulated the prin­ ing as a domestic broadcaster a broadcasting ciple that a Member State is entitled to take body constituted under the law of another measures in order to prevent a provider of Member State and established in that State services whose activity is entirely or princi­ whose activities were wholly or principally pally directed towards its territory from directed towards the territory of the first exercising the freedom to provide services in Member State if that broadcasting body had order to avoid the legislation applicable in been established there in order to enable it to the State of destination. avoid the rules which would have been applicable to it had it been established within 20 the first State.

42. The Court has recently (albeit in respect of facts which arose before the Television Directive was required to be transposed into national law) applied that principle to the 45. The Van Binsbergen principle may be broadcasting sector in Veronica Omroep seen simply as an application of the general 17 18 principle of abuse of rights, recognized in Organisatie and TV10. most systems of law. As such, it might be

16 — Case 33/74 [1974] ECR 1299. 17 — Case C-148/91 [1993] ECR I-487. 19 — Paragraph 13 of the judgment. 18 — Case C-23/93 [1994] ECR I-4795. 20 — Second paragraph of the operative part of the judgment.

46. To allow the principle to be invoked in a case such as the present where the interests protected by the rules allegedly sought to be 47. There is in any event nothing in this case avoided are within the scope of the directive to suggest that TV3 was in fact established in would moreover fundamentally undermine the United Kingdom in order to avoid the the transmitting State principle, which is Swedish rules in question. It cannot be itself the primary expression of the direc­ inferred from the mere fact that a broad­ tive's aim to abolish obstacles to freedom of caster established in one Member State trans­ movement for services with a view to bring­ mits broadcasts intended for reception in 24 ing about the internal market. It was another Member State that the broadcaster is seeking to avoid legislation applicable in the Member State of reception: the broadcaster 21 — Sec paragraph 74 of the Opinion in Case C-11/95 Commis- sion v Belgium, [1996] ECR I-4115, I-4117. 22 — Ibid., paragraph 75. 23 — Paragraph 65 of the judgment. 25 — Cited in note 15; see paragraph 55 of the Opinion. 24 — See the second recital in the preamble. 26 — Cited in note 6, paragraphs 51 to 53 of the judgment.

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48. Furthermore, the fact that in these cases the broadcasts by TV3 were, as appears from the observations of the parties, transmitted (albeit with different language signals) to Denmark and Norway as well as to Sweden 50. It is obvious that, where the laws in suggests that application of the principle — question are to all intents and purposes the designed to preempt reliance on Community same, there will be no scope in practice for law by a provider of services whose activity application of the principle since there will be nothing to be gained in avoiding one sys­ tem of legislation by opting for the other. 27 — TV10, cited in note 18, paragraph 21 of the judgment. The Where differences in legislation are sufficient French is perhaps stronger, 'de manière abusive'. However there appears to be no equivalent adverb at all in Dutch, the to warrant an undertaking's establishing language of the case. itself in another Member State purely in 28 — Veronica, cited in note 17, paragraph 13 of the judgment: the French is 'abusivement'; again there appears to be no order to exploit those differences then ex equivalent in Dutch, the language of the case. hypothesi there is scope for application of the 29 — See paragraph 74 of the Opinion of Advocate General Lenz in Commission v Belgium, cited in note 21. See further principle. In my view it is neither desirable Advocate General Lenz's analysis in TV10, cited in note 21 nor feasible to lay down any general rule as (paragraphs 62 to 68 of his Opinion), of the factors relevant to determining avoidance of legal provisions by a legal per- to the degree of parity necessary as a matter son. of law in order to preclude or to trigger 30 — See the Opinion of Advocate General Lenz in Commission v Belgium, cited in note 21, paragraph 75. application of the principle.

52. I am not in any event convinced that the principle, even if applicable, would assist those who invoke it in this case. A distin­ guishing feature is that, in contrast to Veronica and TV 10, enforcement of the measure at issue in this case is being sought not against TV3, the provider of services, which is established in another Member State, but against the advertiser, which is clearly established in Sweden. It would require a further development of the Van Binsbergen principle for it to be applicable in these circumstances. Moreover, any attempt to argue that the advertiser was seeking to 54. Article 2(2) of the directive, set out use an undertaking established in another above, prohibits Member States from Member State solely in order to avoid its restricting retransmission on their territory own national legislation would surely of television broadcasts from other Member founder given that the advertisements at States for reasons which fall within the fields issue were also broadcast on domestic chan­ coordinated by the directive. The answer to nels (TV4 in De Agostini and Homeshopping the national court's question accordingly Channel in TV-Shop). depends on whether the regulation of adver­ tisements of the type at issue falls within those fields. De Agostini primarily concerns advertising directed at children; in addition, the order sought by the Consumer Ombuds­ man in the alternative appears to be based on the assumption that the advertising is in part misleading and hence contrary to the Mar­ keting Practices Law. In TV-Shop the ground on which the Consumer Ombudsman seeks 53. I am accordingly unconvinced by any of to prohibit the advertiser from making cer­ the general arguments seeking to demon­ tain claims and suggestions in its advertise­ strate that the Television Directive is not ments appears to be that the advertisements applicable in the circumstances of these are misleading and hence contrary to the cases. I shall now turn to the specific ques­ Marketing Practices Law. I will consider the tion referred by the national court, namely two types of advertising separately.

59. Article 12 requires compliance with cer­ tain general ethical and public-interest stan­ dards. Article 13 contains a strict prohibition on all forms of television advertising for cigarettes and other tobacco products. Article 14 prohibits television advertising for 57. It is clear from the 27th recital in the certain medicinal products and treatment. preamble that the directive lays down 'a cer­ Article 15 lays down a number of criteria tain number of minimum rules and stan­ with which advertising for alcoholic bever­ dards' for television advertising in the inter­ ages must comply, among which are that it ests of consumer protection. The 29th, 30th may not be aimed specifically at minors or and 32nd recitals give various further reasons depict minors consuming such beverages. for prohibiting or limiting certain types of Finally, Article 16 provides that television television advertising, such as for tobacco advertising must not cause moral or physical and medicinal products; those reasons detriment to minors and must therefore include (in the 32nd recital) the protection of comply with specified criteria for their pro­ the physical, mental and moral development tection.

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60. Article 21 requires Member States to Misleading advertising ensure that, in the case of television broad­ casts that do not comply with the provisions of Chapter IV, appropriate measures are applied to secure compliance with those pro­ visions.

64. Although the advertisements in TV-Shop are what is known as 'tele-shopping', and hence fall outside the definition of 'television advertising' for the purposes of Chapter IV of the Television Directive, they none the less unquestionably constitute television 61. It is in my view clear from the combined broadcasts for the purposes of Chapter II of effect of the provisions considered above that the directive, 'General provisions'; thus the directive lays down minimum rules and Article 2(2) prohibits restrictions on retrans­ standards regulating television advertising, mission for reasons which fall within the including standards for the protection of fields coordinated by the directive. minors.

69. Since there is nothing to that effect in the 67. The Misleading Advertising Directive proposed directive — which on the contrary aims to improve consumer protection and to expressly refers to the adverse effect on the put an end to distortions of competition and free movement of goods and services of dis­ hindrances to the free movement of goods parities in the field of broadcast advertis­ and services arising from disparities between ing 36 — it must be assumed that the Con­ the Member States' laws against misleading sumer Ombudsman is referring to the 33 advertising. With those objectives in mind, Commission's Explanatory Memorandum it seeks to establish minimum objective crite­ concerning the proposed directive. 37

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for a Member State to invoke its national not adopted against the background of exist­ laws in that area to restrict cross-border ing harmonization measures. The drafters of broadcasts. the Convention presumably considered that, in order to benefit from the freedom of reception the Convention sought to put in place, advertisements should comply with a general requirement that they should not be misleading and should not prejudice the 71. That construction is consistent not only interests of consumers. Since there was no with the Explanatory Memorandum referred existing instrument imposing such a require­ to by the Consumer Ombudsman but also ment, it was included in the Convention. with the objectives of harmonization in gen­ The drafters of the Television Directive, on eral. the other hand, had no need to legislate to that effect, since the Misleading Advertising Directive, adopted five years before the directive, already required Member States to enact legislation protecting consumers against misleading advertising. The fact that 72. The Consumer Ombudsman also refers the Convention makes provision for mis­ to Article 11 of the European Convention on leading advertising does not therefore in my Transfrontier Television, which provides in view support the argument that the directive its second paragraph that advertisements does not extend to such advertising. shall not be misleading and shall not preju­ dice the interests of consumers. Although not developed further, it may be surmised that the Consumer Ombudsman's argument is that the fact that misleading advertising is expressly dealt with in the Convention but not mentioned in the directive suggests that the omission in the latter instrument was deliberate and hence supports his view that the directive does not apply to misleading advertising.

76. The various submissions made as to the affect the free circulation of goods and provi­ meaning and effect of the 17th recital are not sion of services: for that reason inter alia it always wholly easy to disentangle. The com­ seeks to approximate the laws, regulations mon thread, however, appears to be that the and administrative provisions of the Member 'Community acts of harmonization' there States concerning misleading advertising. It referred to include in particular the Mislead­ would be perverse if a directive explicitly ing Advertising Directive, and that the effect seeking to encourage the free movement of is that a Member State may continue to pro­ goods and services by facilitating cross- hibit broadcast advertising which is mislead­ border advertising could be used to the ing within the meaning of that directive and, opposite effect. presumably, its national legislation imple­ menting that directive.

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which is crucial in determining whether that such an interpretation would to a large Article 2(2) applies. extent destroy the liberalization pursued by the directive, which is based on the funda­ mental principle of Member States' mutual confidence. The prohibition of a second 'control' of broadcasts by the receiving State 4 is the expression of that principle. 3The 81. The fields coordinated by the directive Court endorsed the Advocate General's 44 comprise the promotion of distribution and approach. production of television programmes (Chap­ ter III), television advertising and sponsor­ ship (Chapter IV), the protection of minors (Chapter V), and the right of reply (Chap­ ter VI). That construction is in my view clear from the scheme and objectives of the direc­ tive; that it is the correct construction is 83. Admittedly Advocate General Lenz moreover apparent from the travaux prépa- 45 appears to imply earlier in his Opinion ratoires, which indicate that the directive was that the effect of the 17th recital in the pre­ intended to coordinate the abovementioned amble is that the areas there mentioned are fields (with, originally, the addition of copy­ not among the fields coordinated for the right) by, inter alia, coordinating national purposes of Article 2(2). That suggestion, laws which may be invoked so as to hinder 4 however, was made in the context of several reception of cross-border broadcasts. 1A doomed arguments based on areas which are narrow construction of the concept of 'the clearly not within those fields, namely fields coordinated' by the directive is accord­ ingly not appropriate.

cate General's passing remark about the That comment, however, was clearly made effect of the 17th recital in the preamble obiter, and it appears from the wording of should perhaps therefore not be con­ the judgment and from the report for the strued too widely. hearing in those cases that the EFTA Court heard no argument on the matter from any of the parties. In an area where laws have already been harmonized, it is difficult to see any rationale for the view that those laws may be invoked against broadcasts in respect of which the Television Directive guarantees 84. It may finally be noted that the view that freedom of reception and retransmission. national laws on misleading advertising may Moreover — as indeed these cases demon­ be invoked so as to prevent retransmission of strate — the result of such a view would be broadcasts from another Member State both unsatisfactory and anomalous, requir­ would not only gravely undermine the trans­ ing individual broadcasts to be conceptually mitting State principle but also give rise to 47 dismantled in order to determine which frag­ significant practical difficulties. In the ments were within the scope of that directive present cases, admittedly, the advertisers in and which were not. question are Swedish, so that remedies for misleading advertising available under Swed­ ish law could be enforced against them with­ out difficulties of principle. Frequently, how­ ever, it may be envisaged that in an analogous situation the advertiser concerned will be established in another Member State. In such circumstances, the practical difficul­ 86. In my view, therefore, Article 2(2) of the Television Directive prevents a Member State

88. That conclusion would be the same even if it were the case — as has been suggested in 90. It may be noted that the Commission 50 De Agostini — that the United Kingdom, recently brought proceedings under notwithstanding apparently imposing more Article 169 against the United Kingdom stringent rules than required by the directive seeking a declaration that the United King­ with regard to advertising directed at chil­ dom had failed correctly to implement the 51 dren, does not in fact monitor compliance Television Directive. 53 One of the Commis­ with those controls in the case of broadcasts sion's heads of claim concerned the fact that transmitted abroad, thus infringing in the United Kingdom there are two sepa­ Articles 2(1) and 21 of the directive. The rate regimes for domestic and non-domestic proper course in those circumstances would satellite services; the rules applicable to the be for the dissatisfied State of reception to latter are less stringent than those applicable bring proceedings against the transmitting to the former (and moreover it appears from State under Article 170 of the Treaty or to an exchange of letters with the United King­ bring the matter to the attention of the dom Independent Television Commission, Commission with a view to proceedings annexed to the observations of TV-Shop, 52 under Article 169. that compliance with those rules is not monitored at all in the United Kingdom when the broadcasts are not in English). The Commission alleged that that distinction 50 — See paragraph 90 of this Opinion. 51 — See paragraph 40 of the judgment of the EFTA Court in the constituted a breach of Articles 2(1) and 3(2) Norwegian cases, cited in note 6. of the directive. 52 — See Commission v Belgium, cited in note 21, paragraphs 34 to 37 of the judgment and paragraphs 50 and 51 of the Opinion of Advocate General Lenz. See also the Court's judgment of 23 May 1996 in Case C-5/94 The Queen v Ministry of Agriculture, Fisheries and Food, ex parte Hedley Lomas (Ireland) Ltd, in particular paragraphs 19 and 20. 53 — See note 15.

The Treaty provisions

Article 30

93. The national court in addition asks, first, in relation to all three cases referred whether Article 30 or Article 59 of the Treaty pre­ vents a Member State from taking action against television advertisements which an advertiser arranges to have broadcast from 95. De Agostini argues in essence that the national restrictions on advertising sought to

54 — Sec paragraphs 70 to 75 of the judgment. See also para­ graphs 84 and 85 of the Opinion of Advocate Genera Lenz. 55 — Paragraph 30.

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97. With regard to the first issue, namely whether the measures restrict or prohibit selling arrangements, the Court ruled in Lederc-Siplec v TF1 Publidté and M6 Pub- 58 licité that a prohibition of televised adver­ tising in a particular sector (distribution) 99. The first condition is clearly satisfied in concerned selling arrangements since it pro­ all these cases. In my view however the posi­ hibited a particular form of promotion (tele­ tion is not so clear with regard to the second vised advertising) of a particular method of condition: I share the Commission's concern marketing products (distribution). 59 A that the effect of the prohibition of all televi­ measure prohibiting that form of promotion sion advertising directed at children might in in relation to a particular category of poten­ fact be greater on products from other Mem­ tial consumers, or a particular category of ber States. As I argued in my Opinion in Leclerc, it would be inconsistent with the objectives of the Treaty to interpret Keck so as to exclude from the scope of Article 30 a 56 — Joined Cases C-267/91 and C-268/91 [1993] ECR I-6097. total ban on the advertising of a product 57 — Paragraph 16 of the judgment. which may lawfully be sold in the Member 58 — Case C-412/93 [1995] ECR I-179. 59 — Paragraph 22 of the judgment. State where the ban is applied and in other

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Member States: the effect of such a ban 102. It is settled law that the fairness of would be that manufacturers in other Mem­ commercial transactions and consumer pro­ ber States would find it virtually impossible tection in general figure among the objec­ to penetrate the market in which the ban was tives which can justify restrictions on the 62 imposed, so that the measure would be tan­ free movement of goods. The protection of tamount to a quantitative restriction on trade a particularly vulnerable sector of consumers 60 between Member States. However the dis­ such as children must a fortiori also consti­ crimination test laid down by Keck is inter­ tute an overriding public-interest ground preted, it is difficult to resist the conclusion capable of justifying such restrictions. that in practice such a ban will almost cer­ tainly have a perceptible effect on imports.

60 — See paragraph 50 of my Opinion. 61 — Case 120/78 Rewe v Bundesmonopolverwaltung für Branntwein [1979] ECR 649 ('Cassis de Dijon'). 62 — Ibid., paragraph 8 of the judgment.

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has accepted — in the parallel field of justi­ advertisements in particular come within the fication of measures to which Article 59 Treaty rules relating to services: see in par­ applies — that certain types of prohibition of ticular the early case of Sacchi. Although advertising, for example a prohibition on that case concerned only terrestrial transmis­ advertising particular products or on certain sions (or 'over the air' broadcasts) and trans­ days or restrictions designed to enable view­ missions by cable television, the principle it ers not to confuse advertising with other laid down applies equally to the form of parts of the programme, may be permissible: broadcasting at issue in these cases, namely 63 65 see Collectieve Antennevoorziening Gouda transmission by satellite. (albeit in that case the Court ruled that the restrictions were not in fact justified since their object and effect were to protect the revenue of the national television advertising foundation).

107. The Court has on a number of occa­ sions considered the compatibility with Article 59 of restrictions on television adver­ 66 67 tising. In Bond van Adverteerders it 105. I accordingly conclude that Article 30 analysed the effect of a ban on advertising of the Treaty does not preclude application and concluded that such a ban involves a of a national law prohibiting advertising twofold restriction on the freedom to pro­ directed at children under 12. vide services: first, it prevents cable network operators established in a Member State from relaying television programmes sup­ plied by broadcasters (in that case, via satel­ lite transmission) established in other Mem­ ber States; secondly, it prevents those broadcasters from scheduling for advertisers Article 59 established in particular in the Member State where the programmes are received adver­ tisements intended for the public in that 68 State.

Conclusion

111. Accordingly, I am of the opinion that the questions put by the Marknadsdomstol should be answered as follows:

(1) Article 2(2) of Council Directive 89 / 552 / EEC of 3 October 1989 on the coor­ dination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities prevents a Member State from taking action against television adver­ tisements broadcast from another Member State;

69 — Sec for example Debauve, cited in note 66, paragraph 9 of the judgment, and TV10, cited in note 18, paragraph 14 of the judgment.

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