C-245/01

RTL TELEVISION

OPINION OF ADVOCATE GENERAL JACOBS delivered on 22 May 2003 1

1. In these proceedings, the Court is asked interruptions. The second concerns the by the Niedersächsisches Oberverwaltungs- criteria which must be satisfied for the gericht (Lower Saxony Higher Adminis- broadcast of several films made for televi- trative Court) to interpret the scope of sion to be classified as a series so as to take Article 11(3) of Council Directive them outside the ambit of Article 11(3). 89/552/EEC of 3 October 1989 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activ- ities 2 (hereinafter the 'Television Directive' or the 'Directive') as amended by Directive 97/36/EC of the European Parliament and of the Council of 30 June 1997. 3That Legal framework provision regulates the frequency with which advertising interruptions are per- mitted during the course of feature films and films made for television. It imposes a longer duration between such interruptions than is required in the case of other programmes. Series and serials are, how- ever, expressly excluded from the appli- Community law cation of Article 11(3).

3. The Television Directive was adopted on 3 October 1989 and its provisions were to be implemented by 3 October 1991. It was amended by Directive 97/36 of 30 June 2. The questions referred to the Court raise 1997 which was to be implemented by two issues. The first is whether Article 11 (3) 31 December 1998. Although the litigation of the Directive applies to films made for in the present case commenced before the television which have from the outset been latter directive was adopted, the order for designed for the insertion of advertising reference was not made until June 2001 and is accordingly phrased in terms of both directives. Article 1(13) of the latter direc- tive amended Article 11 of the Directive, 1 — Original language: English. 2 — OJ 1989 L 298, p. 23. but left intact those parts of that provision 3 —OJ 1997 L 202, p. 60. which are of relevance to the present case.

7. Article 11(4) lays down the general rule (hereinafter 'the general rule') that a period of at least 20 minutes should elapse between each successive advertising break within a programme. Article 11(3) provides 9. The Directive is closely modelled on the for a special rule in respect of 'the trans- European Convention on Transfrontier Television, adopted within the Council of Europe shortly before the Directive was 4 —Case C-412/93 Leclerc-Siplec [1995] ECR I-179, para- enacted, work on both instruments having graphs 28 and 29 of the judgment. proceeded simultaneously. Article 14 of the I - 12492

RTL TELEVISION

Convention is for present purposes ident- achieve a balance between a number of ical to Article 11 of the Directive. potentially conflicting interests: those of viewers, of broadcasters, or advertisers on whom broadcasting is financially depend- ent, and of the makers of the programmes. 7

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15. In any event, what is necessary for 2. The exercise of these freedoms, since it present purposes in construing the exclu- carries with it duties and responsibilities, sion is to determine in what circumstances may be subject to such formalities, con- several audiovisual works will be suffi- ditions, restrictions or penalties as are ciently linked to constitute a series or serial prescribed by law and are necessary in a and therefore to fall within the exclusion. democratic society, in the interests of Provided that the outer limits of those two national security, territorial integrity or concepts are made clear, it does not seem to public safety, for the prevention of disorder me necessary to arrive at a precise demar- or crime, for the protection of health of cation of the line between the two, morals, for the protection of the reputation especially given that they appear, in at least or rights of others, for preventing the some language versions, to be imprecise disclosure of information received in con- and overlapping in their meanings. fidence, or for maintaining the authority and impartiality of the judiciary.'

European Convention on Human Rights

National law

16. Article 10 of the Convention has been cited in the course of the proceedings. It reads as follows:

Factual background and questions referred common characters. As a consequence, they fell within the provisions of national law implementing the special rule and could therefore be interrupted less fre- quently than the general rule provides. 18. In the proceedings before the national court, the plaintiff, RTL Television GmbH (hereinafter 'RTL') seeks the annulment of a decision dated 12 November 1993, taken by the Landesrundfunkausschuss (Lower Saxony Broadcasting Board, hereinafter 'the Board') which was at that time the body responsible for the regulation of private television channels in the state of 21. RTL brought proceedings in which it Lower Saxony, but which has since been challenged the validity of the Board's replaced in that role by the defendant, the decision on various grounds, one of which Niedersächsische Landesmedienanstalt für was that the Board's interpretation of p r i v a t e n R u n d f u n k (hereinafter ' t h e 'series' (Reihe) failed to accord with the NLM'). correct meaning of that term as a matter of Community law. RTL argued that for a number of works to constitute a 'series', it was sufficient if they were characterised both by criteria of content, such as film genre, similarity of script and similarity of theme, and by criteria of external form, 19. The contested decision concerned cer- such as length of broadcast and broadcast- tain films broadcast and to be broadcast by ing slot, and various other factors, for RTL. The films in question were made for example a particular director. television and were grouped together into a sequence, under the title of 'Great Televi- sion Stories', comprising various thematic categories, which were in their turn given such titles as 'Family Fortunes', 'Dangerous Liaisons' and 'Fateful Encounters'. They were specifically designed to incorporate advertising interruptions at the frequency permitted under the general rule. 22. On that definition, RTL claimed, 'Great Television Stories' amounted to a series and therefore fell within the exclu- sion rather than the special rule. As regards content, the films which comprised it were distinguished by similarity of theme. This 20. The Board held that, despite RTL's was reflected in a uniform basic structure in attempts to group the films in question, which there was always a central character they could not be considered to form part as the focal point of each film who as the of a 'series' (Reihe) because the individual plot progressed had to overcome an broadcasts lacked any identity of content in extreme life situation, closely related to the form of a shared plot structure or reality and the present day. The films were

(4) Does the interpretation of the term '(1) Does Article 11(3) of Council Directive series for the purposes of Article 11(3) 89/552/EEC of 3 October 1989 on the of Directive 89/552/EEC as amended coordination of certain provisions laid by Directive 97/36/EC permit common down by law, regulation or adminis- points of theme or content of the trative action in Member States con- episodes to be wholly or largely cerning the pursuit of television broad- regarded as unnecessary and predomi- casting activities (OJ 1989 L 298, p. 23) nantly points of form or form of as amended by Directive 97/36/EC of reception taken as the criterion?' the European Parliament and of the Council of 30 June 1997 (OJ 1997 L 202, p. 60), by restricting advertising breaks, pursue the objective of protect- ing the artistic value of feature films and films made for television, irrespec- 24. The first question therefore concerns tive of whether films made for televi- the scope of the special rule itself, and more sion have from the outset been pro- precisely whether films made for television duced for television and provided with fall within it even when designed to incor- breaks designed for the insertion of porate advertising slots. The remaining advertising spots? questions are concerned with the scope of the exclusion. They seek clarification of the criteria for determining whether several films constitute a series. In particular, they are aimed at establishing whether the films (2) What criteria must be satisfied for a in question must be linked by a close broadcast of several feature films and connection of content or whether a shared films made for television to be classi- general theme and/or formal points in fied as a series, derogating from the common are sufficient.

26. By its first question, the referring court wishes in essence to know whether, in the light of the objectives pursued by the special rule, that rule extends to films made for television which have, from the outset, been designed for the insertion of advertis- ing breaks. 29. RTL therefore asserts that if the creator of a film can be shown to have intended it to be interrupted more frequently than the special rule provides, there is no longer any legitimate purpose for applying the special rule in restriction of fundamental rights. Such a restriction would not be permissible 27. RTL submits that the regulation of in order to protect the rights of the work's advertising constitutes a restriction of the creator, given that it would run directly producer's and broadcaster's fundamental counter to the creator's own wishes. It rights to freedom of expression and artistic would also compromise the pluralism of freedom, rights which are enshrined in the the audiovisual media, given that the post- general principles of the Community legal financing of films depends on the ability of

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broadcasters to insert advertising breaks provision lays down is clearly stated to more frequently than the special rule apply to films made for television as well as allows. to feature films, and makes no distinction on the basis of whether a film made for television was designed to incorporate advertising breaks.

30. RTL concludes that, where possible, Community legislation should be inter- preted in such a way as to ensure its conformity with fundamental rights, and that accordingly, the special rule is to be construed as only applying to films in so far as that is the wish of the films' creators, whose rights go to justify that rule.

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RTL TELEVISION

legislative process tends to support the 37. The question remains whether such an notion that the special rule is intended, as interpretation of the special rule would, as its wording indicates, to encompass all RTL claims, constitute an unjustified films for television without the distinction infringement of the fundamental rights for which RTL contends. enshrined in the general principles of Com- munity law.

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special rule would not constitute a propor- of the fundamental rights enshrined in the tionate method of furthering that purpose. general principles of Community law. RTL For reasons which I explain below, I do not submits that each such method of inter- accept that the special rule is dispropor- pretation points in favour of a broad tionate when interpreted in the manner interpretation of 'series', whereby several which I propose. works will constitute a series when they are broadcast at a fixed time, and are bound together by other formal and conceptual criteria, and by a general common theme, as in the case of 'Great Television Stories'.

The second, third and fourth questions 42. In RTL's view, a contextual interpre- tation of 'series' suggests that, in order to avoid rendering that term redundant, it should be given a definition which suffi- ciently differentiates it from 'serial'. The exclusion would not have contained both terms unless they were intended to convey different meanings. The former term should not therefore entail such a close connection 40. The remaining questions referred all between its various component parts as is concern what criteria should be applied to required by the latter concept. According to determine whether a given work constitutes RTL, whereas a serial requires a unity of a 'series' for the purposes of Article 11(3) action, place and persons, a series will exist of the Directive. according to the more general criteria set out in the preceding paragraph.

43. RTL argues further that the purposes of 41. RTL submits that the term 'series' is the Directive militate in favour of a broad ambiguous, not receiving any clear defini- interpretation of 'series'. It points, first, to tion in the Directive, and not having any the Directive's primary objective of pro- clear and consistent meaning across the moting the free movement of services. It various language versions of the Directive. suggests that advertising restrictions which It must therefore be interpreted according are too severe run counter to that objective. to its context and to the objectives of the Any ambiguity in those restrictions must Directive, and so as to avoid any restriction therefore be interpreted in restrictive

47. The referring court, the Commission, 45. Lastly, RTL submits that there is no the United Kingdom Government, and the legitimate basis for construing the concept NLM, all reject RTL's proposed interpre- of 'series' narrowly, and accordingly it tation of the concept of 'series'. must be given as broad as possible a reading in order to minimise the restriction of fundamental rights represented by the special rule. A narrow interpretation of the concept would not be justified by the protection of the quality of audiovisual works, given the subjective nature of quali- 48. I am equally unconvinced by RTL's tative judgments and the need to avoid submissions on the second, third and fourth conferring the power to make such judg- questions referred.

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51. Moreover, it seems to me reasonable to presume that films are singled out for 50. Such an approach also accords better, special treatment in Article 11(3) because in my view, with the objectives pursued by of the more sustained concentration Article 11(3) of the Directive than RTL's required of viewers when both plot and proposed interpretation. As I have already characters must be developed during the stated in my analysis of the first question, I course of a single and self-standing work, consider that the special rule can be under- which would be unduly disrupted if adver- stood to protect viewers against excessive tising interruptions occurred with the fre- advertising when viewing feature films and quency permitted by the general rule. Such films made for television. The intention is a rationale provides a further basis for clearly that viewers should enjoy a higher interpreting series and serial as I have level of protection when watching those proposed. Those categories appear in the types of work than ordinary programmes, exclusion precisely because, where the except in cases where the exclusion applies. narrative or the characters involved in a However the exclusion is interpreted, it work are developed over the course of a must be given a meaning which would not number of parts, there is not the same need entirely undermine the special rule itself. As to preserve the sustained concentration of the Commission, the United Kingdom viewers by imposing greater limitations

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RTL TELEVISION

54. In any event, I do not share RTL's reservations as to the proportionality of the interpretation of the special rule and the exception which I have here proposed. As appears from the case-law of the European Court of Human Rights applying the right- to freedom of expression enshrined in Article 10 of the European Convention on Human Rights, that Court has shown itself 53. Even assuming that the special rule as I willing to accept considerable restrictions have interpreted it and the exclusion to it on commercial advertising, 9 and has constitutes a restriction of fundamental emphasised the particular importance of rights, I consider it a proportionate method according to national authorities a margin of protecting viewers. I would note, first of of appreciation in commercial matters, all, that RTL's argument on the question of especially in an area as complex and proportionality appears to me to possess a fluctuating as that of advertising. 10 more radical logic than RTL attributes to it. If it were true, as RTL appears to suggest, that it would be sufficient, in order 9 — Gasado Coca v Spain, jedgment of 24 February 1994, to protect viewers from excessive advertis- ECHR Reports Series A N o 285. ing, for broadcasters to inform viewers of 10 — VGT Verein gegen Tierfabriken v Switzerland, judgment of 28 June 2001, Reports of Judgments and Decisions the frequency of advertising breaks, and 2001-VI, at paragraph 69.

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OPINION MR JACOBS — CASE C-24J/01

Conclusion

55. I am therefore of the opinion that the questions referred to the Court should be answered as follows: