C-318/00

Relevant law

2. As far as Community law is concerned, 5. That prohibition is expressly confirmed relevant to the present case is Article 49 EC by Article 8 of Decree No 92-280 of which, as we know, guarantees the freedom to provide services within the Community. 2 —journal Officie! de la République Francaise of 12 January 1991, p. 615. 3 — This later became Article L. 3323-2 of the Code de la santé 1 — Original language: Italian. publique.

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27 March 1992 on television advertising 7. Moreover, an important supervisory role and sponsorship, 4which provides: was conferred on the 'Conseil supérieur de l'audiovisuel' (hereinafter 'the CSA'), which can impose administrative penalties on French broadcasters for failing to comply with the Loi Evin. In the exercise 'The advertising of products which, by law, of that role, the CSA drew up, in 1995, a must not be advertised on television and 'Code of Good Conduct' explaining its the advertising of the following goods and intended interpretation of the Loi Evin in economic sectors: so far as concerns broadcasts of sporting events at which advertisements for alco- holic beverages are shown (for example, on athletes' shirts or on billboards around the playing field). drinks having an alcohol content greater than 1.2°...

shall be prohibited.'

abroad'. 5 In the case of 'multinational must not suggest that alcoholic drinks are events' broadcast to a number of nations capable of enhancing mental or physical and thus not regarded as being intended capacity (and, in particular, sexual ability), mainly for French viewing audiences, popularity, attractiveness, masculinity or broadcasters cannot be accused of com- femininity, personal relationships, or social plicity even if advertisements appear on or sporting achievement. screen, provided that the pictures trans- mitted are not within their control. 'Other events', however, regarded as being intended for the French viewing public, are treated differently. In the case of such 'other events', where the law of the host country allows the advertising of alcoholic drinks at the venue, the parties who negotiate with the owners of the broadcast- ing rights must use every possible means to ensure that such advertisements do not appear in France and must inform their Facts and procedure foreign counterparts of the rules prevailing in France.

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12. The contractual relations between the 13. On the day of the match, shortly before parties may be summarised as follows: it was to begin, Newcastle became aware that Bacardi and Cellier had purchased advertising space from Dorna in order to promote their alcoholic drinks. Newcastle informed Dorna that the match was to be broadcast in France, where the televised advertising of alcoholic drinks is not (i) under an agreement concluded in 1994 allowed, and asked Dorna to remove the between the Football Association Pre- advertisements for the two French com- mier League Limited and the clubs panies from its billboards. affiliated to it (including Newcastle) on one side and Dorna on the other, Dorna was appointed to sell and man- age advertising space located around the perimeter of the pitch for all home matches played by Premier League clubs; 14. The advertisements could not be removed before the beginning of the match and so the electronic display system was programmed so that they should not appear during the match for periods of more than a second or two. (ii) under two agreements concluded by Dorna in November 1996 with Bacardi and Cellier, Dorna undertook to make advertising space available to the two French companies during a match between Newcastle and the French team Metz, which was to be played in 15. Bacardi and Cellier took the view that England on 3 December 1996 in the they had suffered damage as a result of the third round of the UEFA Cup; substantial suppression of their advertise- ments and on 23 July 1998 commenced proceedings in the High Court against Dorna and Newcastle, seeking, inter alia, 'damages, declarations and injunctive relief'. The action against Dorna was sub- sequently withdrawn, having been settled by agreement between the parties. (iii) under a separate agreement Newcastle then granted to CSI the broadcasting rights for the match. In particular, in so far as is relevant here, Newcastle undertook to permit and/or procure the live broadcast of the match on French television. The rights to broad- cast the match in France were sub- 16. Bacardi and Cellier argued before the sequently sold by CSI to CANAL+. High Court that Dorna had failed to fulfil I-910

17. In its order for reference, the High Court was careful to note that, according to an experts' report, in its application of 18. Thus, taking the view that the issue of the Code of Good Conduct, the CSA gave the compatibility of the Loi Evin with the impression that it was only in relation Article 49 EC is central to the resolution to the advertising of French alcoholic of the dispute and regarding it as inappro- beverages that it wished to curb infringe- priate for it to give a ruling thereon without ment of the Loi Evin. Owners of television allowing the French Government an oppor- rights for sporting events taking place tunity to state its position, the High Court outside France thus allegedly refrain from decided to stay the proceedings and refer to

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the Court the following questions for a (a) the advertising of alcoholic drinks preliminary ruling: at sporting events taking place in Member States other than France when the events are to be televised in France, and

'1. Are Articles L.17 to L.21 of the Code des débits de boissons (the so-called "Loi Evin" provisions), Article 8 of (b) the broadcasting in France of Decree No 92-280 of 27 March 1992 sporting events taking place in and the provisions of the Code de other Member States at which Bonne Conduite of 28 March 1995 there is advertising of alcoholic contrary to Article 59 of the EC Treaty beverages?' (now Article 49 EC) in so far as they prevent or restrict:

(Dorna) to disregard certain contractual The jurisdiction of the Court of Justice obligations it had assumed for the benefit of certain other companies (Bacardi and Cellier), regards as decisive for the resol- ution of the matter the question of the compatibility with Community law of a Arguments of the parties French law (the Loi Evin), which, whilst not directly applicable to the facts of the case, has nevertheless been relied upon by the first company as justification for its conduct. The case is peculiar also for the fact that, according to indications in the order for reference, 7as a quite separate 22. As I have mentioned, the French Gov- matter from the proceedings in question, all ernment maintains that the reference for a the parties to the dispute seem to have a preliminary ruling is inadmissible. It broader interest in obtaining a declaration emphasises in particular that the French that the French law in question is incon- law in question has no extraterritorial sistent with Community law. application and argues that, consequently, only the French broadcaster which pur- chased the broadcasting rights (namely CANAL+) could potentially be liable for breach of the Loi Evin and certainly not Newcastle, which in reality took action only out of fear of losing the income from 21. Given those special features, it seems the sale of the television rights. appropriate, before assessing the compati- bility with Community law of a piece of national legislation such as the Loi Evin, to consider whether the Court of Justice has jurisdiction to give a ruling on the ques- tions referred. Indeed, the admissibility of this reference for a preliminary ruling has 23. Similarly, the Commission takes the been expressly disputed by both the French view that the questions referred are inad- Government and the Commission, the missible because Newcastle was under no latter going so far as to restrict its own obligation to comply with the Loi Evin written observations to that particular anyway. Thus, the Commission too argues aspect, saying nothing whatsoever on the that Newcastle's conduct was dictated substantive merits of the questions. Whilst solely by its fear of losing the agreed fee it draws the opposite conclusion, the for the television rights relating to the United Kingdom Government itself is also match in question or, more generally, by mindful of the issue and has devoted part of its concern not to compromise its ability to its observations to the question of the sell in the future broadcasting rights relat- admissibility of the reference. It is therefore ing to its own matches to French television appropriate to address this aspect of the channels. Moreover, in the Commission's case as preliminary point. opinion, the national court has not given sufficient reasons for its decision to refer the questions. That is for two reasons: first, 7 — In this connection one might cite in particular the statement made by Newcastle's finance director, reported by the High it failed to clarify the basis on which Court and cited in paragraph 17 of the present Opinion. Newcastle might rely on the French law

24. The United Kingdom, on the other hand, takes the view that the questions referred are relevant to the resolution of the Assessment main dispute. However, its reasons for doing so are not the same as those expressly set out by the national court. According to the United Kingdom, the broadcasting on French television of the match between Newcastle and Metz was the subject of a 26. Coming now to the assessment of this clause of the contract between Newcastle issue, I think it appropriate first of all to and CSI. Therefore, Newcastle intervened point out that, according to settled case- in the contract between Bacardi and Cellier law and as a general principle, 'it is solely and Dorna not because it was directly for the national court before which the required to do so by the provisions of the dispute has been brought, and which must Loi Evin, but in order to avoid a breach of a assume responsibility for the subsequent contractual obligation which implicitly or judicial decision, to determine in the light explicitly called for compliance with the of the particular circumstances of the case French law governing the broadcasting of both the need for a preliminary ruling in the match. To that degree, and on that order to enable it to deliver judgment and condition, the United Kingdom considers the relevance of the questions which it the questions regarding the validity of the submits to the Court'. 8 French law as indeed being relevant to the main proceedings.

27. As is well-known, however, the Court of Justice nevertheless retains a margin of discretion as regards the views of the 25. Bacardi and Cellier, which expressed national court and may, where appropriate, no view on the point during the written procedure, pointed out at the hearing that, before the High Court, Newcastle had 8 — Case C-36/99 Idéal Tourisme [2000] ECR I-6049, para- sought to justify giving its instructions to graph 20. See, to the same effect, Case C-415/93 Bosnian [1995] ECR I-4921, paragraph 59, and Case C-421/97 Dorna on the ground that, had it not done Tarantik [1999] ECR I-3633, paragraph 33, inter alia.

find that a reference for a preliminary whether the legislation of another Member ruling is inadmissible. On a number of State is in accordance with Community occasions, the Court has 'held that it law'. 12 cannot give a preliminary ruling on a question submitted by a national court where it is quite obvious that the ruling sought by that court on the interpretation or validity of Community law bears no relation to the actual facts of the main action or its purpose or where the problem is hypothetical'. 9In accordance with that precedent, therefore, '[i]f it should appear that the question raised is manifestly irrel- evant for the purposes of deciding the case, the Court must declare that there is no need to proceed to judgment'. 10 In this con- 29. That being so, I must observe that, in nection it has also been made plain that, 'in the order for reference, the relevance of the order that the Court of Justice may perform questions referred is asserted essentially by its task in accordance with the Treaty it is reiteration of the points made by the essential for national courts to explain, parties, which, moreover, as the Commis- when the reasons do not emerge beyond sion has emphasised, as a quite separate any doubt from the file, why they consider matter from the current proceedings, seem that a reply to their questions is necessary to have a common interest in obtaining a to enable them to give judgment'. 11 declaration that the Loi Evin is inconsistent with Community law. 13 More specifically, the order states that, according to Bacardi and Cellier, Newcastle's interference in Bacardi's and Cellier's agreements with Dorna 'could not be justified by reference to the Loi Evin provisions because those provisions are unlawful under Article 59 of the EC Treaty (now Article 49 EC)' and 28. For the purposes of the present that, in its defence, Newcastle pleads, inter opinion, it is also of interest to note that, alia, that 'it was justified in instructing according to case-law, in assessing the Dorna to remove the Bacardi and Cellier admissibility of a reference for a prelimi- advertisements on the basis of the Loi Evin nary ruling, 'the Court of Justice for its part provisions because the Loi Evin provisions must display special vigilance when, in the are compatible with Article 59 of the EC course of proceedings between individuals, Treaty'. For its part, in explaining the a question is referred to it with a view to reasons which led it to refer the questions permitting the national court to decide for a preliminary ruling, the High Court limited itself to asserting that the 'issue of the legality of the Loi Evin provisions is 9 — Idéal Tourisme, cited above, paragraph 20. See also Case C-343/90 Lourenço Días [1992] ECR I-4673, paragraphs central to resolution of the proceedings 17 and 18, Case C-83/91 Meilicke [1992] ECR I-4871, before the national court'. paragraph 25, Dosniau, cited above, paragraph 6 1 , and Case C-437/97 EKW and Wem & Co. [2000] ECR I - 1 1 5 7 , paragraph 52. 10 — Lorenço Días, cited above, paragraph 20. 11 — Case 244/80 Foglia v Novello [1981] ECR 3045, para- 12 — Ibidem, paragraph 30. graph 17. 13 — Sec paragraph 17 above.

32. In so doing, however, the High Court appears to ascribe relevance to the ques- tions which it refers solely on the basis of arguments raised by the parties: in the order for reference, there is no sign of any appraisal, not even a prima facie appraisal, of the merits of those arguments and, in particular, of the legal assumptions on the basis of which the parties allege that the resolution of the main dispute depends on 31. It seems to me that it can be inferred the French law's compatibility or otherwise from that reply that the reference for a with Community law.

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35. By not expressing its position on these preliminaries, the High Court has thus 14 — See, in this connection, the statement or the Newcastle's finance director, repotted at paragraph I " of the present failed to make plain why, for the resolution Opinion. of the dispute in the main proceedings, it is

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necessary, in its opinion, for the Court of affairs not because it was directly required Justice to decide whether a law such as the to do so by the provisions of the Loi Evin, Loi Evin is compatible with Article 49 EC. but so as not to find itself in breach of Given the particular features of the case obligations arising under its contract with under consideration, I therefore consider CSI. Indeed, that is not the reason for that, in the absence of any evaluation of the which the High Court regards the questions legal arguments on the basis of which the referred as relevant. In its reply to the reference for a preliminary ruling is Court of Justice's request for clarification, regarded as necessary, the questions posed the High Court did not even mention the remain merely hypothetical inasmuch as it contract between Newcastle and CSI. Even remains doubtful, to say the least, whether if it were so, it nevertheless remains unclear a decision of the Court of Justice will be of why the justification afforded by New- use in resolving the main dispute, rather castle's desire to comply with the terms of than simply representing a useful precedent its contract with CSI should fall away if the of which the parties might avail themselves Court declares laws such as the Loi Evin to in other circumstances. be incompatible with Article 49 EC.