French Consumer Law is a comprehensive and comparative overview of French and EU law in this field, covering: advertising, unfair commercial practices, conditions for the validity of contracts, unfair terms, product conformity, latent defects, product safety.

French Consumer Law

The reference, in fixing the maximum duration for the broadcasting of advertisements, to “a given one-hour period” , or to “a given hour” , has raised the question of the determination of the reference time.  Two hypotheses were considered: a clock hour or a continuous period of 60 minutes (sliding hour). The first solution has the effect of allowing an uninterrupted accumulation of two maximum ad …

Calculation

The airtime devoted to advertising is limited in order to protect viewers, as consumers, while taking into account the financial interests of broadcasters and advertisers .

Since its amendment by Directive No 2018/1808 , the directive provides that the proportion of television advertising spots and teleshopping spots in the period between 06.00 and 18.00 hours shall not exceed 20% of that period. The same applies to the proportion of television commercials and tele-shopping spots over the 18.00 to 24.00 hour period (Article 23(1) . 

The concept of “television advertising spots” includes conventional advertising commercials, infomercials, tele-promotion spots, sponsoring messages and micro-ads . Messages broadcast by the television broadcasting organization regarding its own programs and related products directly derived from these programs, sponsoring messages and product placements and neutral frames between editorial content and television advertising or teleshopping spots, and between individual spots  are excluded from the scope of application of Article 23.

French regulations adopt a different regime depending on the services concerned:

- National terrestrial broadcasters of the public sector: Article 30  of the Terms of Reference of France Télévisions  (of which the channel Arte is not a part)  set by Decree No 2009-796 as amended on June 23, 2009  providing that the time devoted to the broadcast of advertising messages may not exceed 6 minutes per hour of air time as a daily average, without being able to exceed 8 minutes for a given clock hour. In addition, the maximum duration of a sequence of advertising messages is limited to 4 minutes. Pursuant to Article 28 of this decree, the television service Franceinfo (with the exception of the local and regional programs)  is prohibited from broadcasting brand advertising between 8 pm and 6 am . 

-  Local public sector terrestrial broadcasters: for regional or local public television services specifically destined for overseas, Article 30 of Decree No 2009-1263 limits the broadcasting time of commercials to 6 minutes per hour of air time, without being able to exceed eight minutes for a given clock hour.

For services other than those operated by the national broadcasting companies, the maximum time devoted to advertising is subject to an agreement with the Regulatory Authority for Audiovisual and Digital Communication on behalf of the State (Arcom) pursuant to Article 28, 10° of Law No 86-1067 , under the conditions laid down in Article 15, V, 1° of Decree No 92-280.

-  National private sector terrestrial broadcasters: Article 15, V, 1° distinguishes between services previously broadcast in analogue terrestrial mode (TF1, M6 and Canal +) and the others (TNT channels) for which the legislation is a little less strict during “a period which may not exceed seven years from the date specified in the authorization for the effective start of programs”. As a result, the authorized duration of commercials is a daily average of nine minutes per air time hour for TF1, M6 and Canal+, without being able to exceed 12 minutes for a given hour while for TNT channels not broadcasting for more than seven years, the maximum air time for advertising is twelve minutes for a given hour . 

If a television channel exceeds the authorized duration of commercials, formal notice accompanied by a penalty proportionate to the duration of the breaches may be pronounced by Arcom . The Conseil d'État has nonetheless admitted that exceptional circumstances may justify a breach . This does not include the uncertainties of live broadcasting . 

 -  Local terrestrial television and television distributed by cable, ADSL and satellite: for services broadcast terrestrially on a geographical area with a recorded population of less than or equal to ten million inhabitants and for services distributed by networks not using frequencies assigned by Arcom, Article 15, V, 2° of Decree No 92-280 provides that the time devoted to the broadcast of advertising messages is set by the agreement based on the category to which the service in question belongs without, however, being able to exceed twelve minutes for a given clock hour. The limits can only be exceeded in very specific cases . 

Finally, some services may not broadcast advertising messages. Pursuant to Article 15-1 of Decree No 92-280, these are cinema services, pay-per-view services, programs that are subject to specific access conditions and programs whose unencrypted broadcast has been exceptionally authorized by the regulatory authority. However, for cinema services distributed by cable or broadcast by satellite or terrestrially in digital mode, programs that are subject to specific conditions of access may include advertisements for the film industry.

This purpose is also apparent from points 245 and 246 of the explanatory report accompanying the European Convention on Transfrontier Television, which entered into force on 1 May 1993 and to which Directive No 2010/13 refers in its Preamble (3).

Directive No 2018/1808 of 14 November 2018, OJ L 303 of 28 November 2018.

Article 53 of Law No 86-1067, VI bis states: “The programs of the national television services referred to in section I of Article 44 intended primarily for children under twelve years of age do not include advertising messages other than generic messages for goods or services relating to the health and development of children or campaigns of general interest. This restriction applies during the broadcast of such programs and for a time-limit of 15 minutes before and after such broadcast. It also applies to all messages broadcast on the internet sites of these same national television services that offer programs primarily intended for children under the age of twelve”.

 Law No 86-1067, Art 28: “The issuance of permits for use of the radio resource for each new service broadcast terrestrially other than those operated by the national program companies, is subject to the conclusion of an agreement between the Regulatory Authority for Audiovisual and Digital Communication (Arcom) on behalf of the State and the person seeking the authorization. Respecting honesty and pluralism of information and programs and the general rules laid down under this law and in particular Article 27, this agreement lays down the specific rules applicable to the service, taking into account the extent of the area served, the share of the service in the advertising market, respect for equal treatment between the different services and the conditions of competition specific to each one, and the development of terrestrial digital radio and television. The agreement includes one or more of the following points: […] 10° The maximum time devoted to advertising, sponsored programs, and the terms of their inclusion in programs”.

 For an application, see CSA, 12 July 2011, giving formal notice to BFM TV, LawLex201500000990JBJ.

 Article 42 of the Law of 30 September 1986.

 Cons. d'Ét., 21 September 1988, LawLex200300001846JBJ.

 Cons. d'Ét., 8 April 1994, LawLex200300003790JBJ.

 Decree 92-280 amended, Art. 15, V, 2: “[...] The agreement may, however, provide for periods longer than those specified in the preceding paragraph for the benefit of services which, on a channel assigned to a municipality, group of municipalities or an association, are intended for news on municipal, inter-municipal or local life. The maximum duration provided for in the first paragraph of 2° may be increased, for services intended solely for the national territory and which cannot be received, directly or indirectly, in one or more other Member States of the European Union, to a daily average of twelve minutes per air time hour and fifteen minutes for a given clock hour.”

Amended Decree No 92-280, Art. 15, V, 3°: “The duration devoted to the broadcasting of advertising messages that are not broadcast simultaneously throughout a publisher's service area shall not exceed an average of two minutes per hour per day for the publishers referred to in 1° and an average of four minutes per hour per day for the publishers referred to in 2° over all the programming periods during which such broadcasting is authorized, nor shall it exceed six minutes in any given clock hour”.

Previously Article 23(1) of Directive No 2010/13 limited the transmission time devoted to television advertising spots and teleshopping to a maximum of twelve minutes per airtime hour, i.e. 20% within a given clock hour. Under Directive 89/552 as amended by Directive 97/26, the limitation of the daily transmission time was set at 15%, except for offers made directly to the public for which the limit was raised to 20% (for an application see Case C-320/94 Reti Televisive Italiane SpA and others, Judgment of 12 December 1996, LawLex200900000309JBJ).

 See Case C-281/09 Commission v Spain, Judgment of 24 November 2011, LawLex201200000218JBJ.

For the application of this article, the given time of day is understood to be within the meaning of the last paragraph of See 15 of the aforementioned Decree of 27 March 1992.
When information of general interest is inserted in the sequences of advertising messages, they are not counted for the purposes of airtime limitations.

L.aw No 86-1067, Art. 44, I: "The national programming undertaking France Télévisions is responsible for designing and programming national, regional and local television programs, as well as radio programs from the French overseas territories. It also publishes and broadcasts several audiovisual communication services, including on-demand audiovisual media services, meeting the public service missions defined in Article 43-11 and in its specifications.

The respective characteristics of these services are specified in its specifications. It may publish them through subsidiaries whose entire capital is held, directly or indirectly, by public persons.

It takes into account the development of digital technologies to ensure access to its programs for all audiences.

While respecting the identity of the editorial lines of each of the services it publishes and broadcasts, France Télévisions ensures, through its programming choices and its acquisitions of programs and audiovisual and cinematographic works, that it guarantees the diversity of creation and production.

France Télévisions reflects the diversity of French society in its programming and ensures that it commits to appropriate action to improve the presence of this diversity in its programs.

France Télévisions designs and broadcasts programs in the regions that contribute to the knowledge and influence of these territories and, where appropriate, to the expression of regional languages. These programs are broadcast through specific offshoots, including during prime time, and may be repeated at the national level. They reflect the diversity of economic, social and cultural life in the regions and offer local information.

When broadcasting news, France Télévisions' undertakings have an independent editorial line.

The main source of funding for the France Télévisions undertaking is the revenue from the public broadcasting contribution". 

The Arte channel is not part of the France Televisions group and is not subject to the supervision of the CSA but only of its members “to the exclusion of the authority of any intervention of public authority, including independent authorities in charge of the regulation of the audiovisual sector in the country of the headquarters”. According to Article 19.1 of the contract for the formation of the Arte European Economic Interest Grouping (EEIG) does not broadcast advertising screens or cut its programs with advertising. Pursuant to Article 45-2 of Law No 86-1064, the Chaîne parlementaire (Parliamentary Channel) which includes, on an equal basis of airtime, the programs of two undertakings, one for the National Assembly and the other for the Senate, does not broadcast any advertising or teleshopping programs. It does not come under the supervision of the CSA either.

 OJ of October 21, 2009, amended by Decrees 2010-253 of March 10, 2010; 2011-1725 of 1 December 2011; 2012-758 of 9 May 2012; 2013-323 of April 16, 2013; 2014-1652 of December 26, 2014; 2015-916 of July 24, 2015.

 Law No 86-1067, Art. 53, IV: “Subject to the constraints related to the time difference of their rebroadcast overseas, the programs broadcast between 8:00 pm and 6:00 am of the national television services referred to in section I of Article 44, with the exception of their regional and local programs, contain no commercials other than those for goods or services presented under their generic name. This provision does not apply to public interest campaigns. The maximum time devoted to the broadcasting of advertising messages is assessed by given clock hour. On the extinction of broadcasting in analogue terrestrial mode on the territory of an overseas department, an overseas collectivity or New Caledonia, and no later than 30 November 2011, the regional and local television services of the company referred to in the same I broadcast on the territory of the collectivity in question shall contain no commercials between 8:00 pm and 6:00 am other than those for goods or services presented under their generic name, subject to the existence of a private local television offer broadcast terrestrially and unencrypted. No later than 1 May 2011, the Government will send Parliament a report assessing, after consulting the representative professional bodies in the advertising industry, the impact of the implementation of the first paragraph of section VI on the development of the advertising market and the situation of all television services. The implementation of the first paragraph of section VI gives rise to financial compensation from the State. Under conditions defined by each finance law enacted, the amount of this compensation is assigned to the company mentioned in I of Article 44. Where applicable, the amount of this compensation is reduced by the amount of own revenues in excess of the expected proceeds from these same revenue as determined by the contract of objectives and means and any amendments agreed between the State and the company referred to in section I”.

Principle

The reference, in fixing the maximum duration for the broadcasting of advertisements, to “a given one-hour period” , or to “a given hour” , has raised the question of the determination of the reference time.  Two hypotheses were considered: a clock hour or a continuous period of 60 minutes (sliding hour). The first solution has the effect of allowing an uninterrupted accumulation of two maximum advertising times, i.e. 24 minutes, allowing the broadcast of the maximum advertising time (12 minutes) at the end of a given hour, followed by a further advertising slot of 12 minutes broadcast over the next hour. The second solution requires television broadcasters to respect a minimum duration equal to 48 minutes between the end of an advertising spot and the beginning of another.

Under French law, the Council of State had opted for the latter by stating that the given hour may, but need not necessarily, be the start of a round hour and can be calculated from any point in day . Forty-eight minutes should therefore elapse after the broadcast of a 12-minute spot for a new advertising spot to begin. In addition, according to the Council of State, only commercials should be taken into account for their calculation, to the exclusion of elements such as opening credits, animations or intervals between commercials.

European law replaced the system of the “sliding hour” by that of the “clock hour” following the amendment in 1997  of Directive No 89/552, before its repeal and codification by Directive No 2010/13 . 

Article 15, V, last paragraph, of the decree now provides that “a clock hour means a period of sixty successive minutes starting at minute zero and ending on minute fifty-nine”.

The recent amendment of Directive No 2010/13 by Directive No 2018/1808 of 14 November 2018  again brings changes. Recital 41 of the latter provides that “It is important that broadcasters have more flexibility and are able to decide when to place advertising in order to maximise advertisers' demand and viewers' flow. It is also necessary, however, to maintain a sufficient level of consumer protection in that regard because such flexibility could expose viewers to an excessive amount of advertising during prime time. Specific limits should therefore apply within the period from 6.00 to 18.00 and from 18.00 to 24.00”. The reference to the clock hour has been abandoned in favor of a maximum percentage of television advertising spots and teleshopping spots within 2 periods - daytime between 6.00 and 18.00 and evening between 18.00 and 24.00 - which must not exceed 20% of those periods (Art. 23(1) amended) . Directive No 2018/1808 requires the legislator to take the necessary steps for its transposition into French law by 19 September 2020 .

Directive No 89/552, Art. 18 (OJ L 298 of October 17, 1989, 23) :" [...] The transmission time for advertising spots within a given one-hour period shall not exceed 20 %". 

 Cons. d'Ét., March 16, 1988, LawLex200400000763JBJ

 Directive No 97-36 of June 30, 1997 (OJ L 202/60). 

 Directive No 2010/13, former Art. 23: "The percentage of broadcasting time of television advertising spots and teleshopping spots within a given clock hour shall not exceed 20%."

 It is therfore implicit that no limit is imposed for the period from 24.00 to 06.00

French Consumer Law

91. Calculation

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91. Calculation

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