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

Directive No 2010/13 aims to promote the free movement of television programs within the Union. When television programs and the advertisements that accompany them comply with the minimum standards laid down by the directive, they must be received in all Member States with no additional conditions or control.
Thus, Article 2(1) of the directive provides that each Member State shall ensure complian …

Supervision by Member States

Directive No 2010/13 aims to promote the free movement of television programs within the Union. When television programs and the advertisements that accompany them comply with the minimum standards laid down by the directive, they must be received in all Member States with no additional conditions or control.

Thus, Article 2(1) of the directive provides that each Member State shall ensure compliance, by the media service providers under its jurisdiction, with the rules applicable to them . As it is a minimum harmonization directive, the Member States may impose more stringent rules on media service providers under their jurisdiction , provided that they do not breach the principles of free movement laid down in the Treaty on the functioning of the European Union . Media service providers come under the jurisdiction of the Member State in which they are established  and, otherwise, of the Member State where the satellite toward which they use an uplink is located , or the one whose satellite capacity they use . If jurisdiction cannot be determined in accordance with those rules, Article 2(5) provides that the competent Member State is the one in which the media service provider is established within the meaning of Articles 49 to 55 TFEU. The Court of Justice has held that when a media service provider is established in several Member States, the Member State in which the supplier has its center of interests has jurisdiction, in particular the one where decisions concerning the scheduling policy and final assembly of the programs to be broadcast are taken .

Under Article 3(1) of the directive, Member States shall ensure freedom of reception and shall not restrict retransmissions on their territory of audiovisual media services from other Member States for reasons which fall within the fields coordinated by the directive. Indeed, the application by the receiving Member State of provisions specifically designed to control the content of television advertising in an area governed by the directive would amount to introducing a double control, contrary to the spirit of the directive. Therefore, the receiving Member State that opposes the retransmission of programs of other Members States containing advertising specifically intended for the national public restricts the principle of the free movement of services . Similarly, a Member State that maintains a system of prior authorization for the retransmission by cable of programs from other Member States breaches its obligations .

It is nevertheless possible in some cases  to temporarily derogate from the prohibition to impede the retransmission of audiovisual media services from other Member States. Such a derogation will occur, for example, in cases of obvious, serious and significant breach by an audiovisual media service from a provider subject to the jurisdiction of another Member State of Articles 6  and 6a  of the directive, which prohibit respectively, incitements to violence or hatred based on any of the grounds referred to in Article 21 of the Charter of Fundamental Rights of the European Union (i.e. sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority,property, birth, disability, age or sexual orientation) and the public provocation to commit a terrorist offense, as well as the making available of programs which may impair the physical, mental or moral development of minors, or if the audiovisual media service in question causes or poses a serious threat to public safety, including the safeguarding of national security and defense.

The Court of Justice clarified that the directive does not prevent the receiving Member State from adopting and applying rules other than those aimed specifically at the dissemination and distribution of television broadcasts, provided that they do not establish a second control of television programs, in addition to that which the issuing Member State is required to perform, and not preventing the retransmission on its territory of television broadcasts from this other Member State .

Finally, the destination Member State retains the possibility of banning indirect television advertising for some goods, which may for example take the form of panels visible on the screen during the broadcast of sporting events. Indeed, indirect advertising, which is not “television advertising” within the meaning of the directive, is not subject to the exclusive control of the issuing Member State .  

 These rules consist of the minimum standards of the Directive and any stricter rules adopted by the Member State under Article 4 of Directive No 2010/13.

Without prejudice to the obligation of Member States to respect and protect human dignity, Member States shall ensure by appropriate means that audiovisual media services provided by media service providers under their jurisdiction do not contain any: (a) incitement to violence or hatred directed against a group of persons or a member of a group based on any of the grounds referred to in Article 21 of the Charter; (b) public provocation to commit a terrorist offence as set out in Article 5 of Directive (EU) 2017/541. 2. The measures taken for the purposes of this Article shall be necessary and proportionate and shall respect the rights and observe principles set out in the Charter.’;

Directive No 2018/1808 of 14 November 2018 (OJ L 303 of 28 November 2018) introduced a new Article 6a which partially repeats former Article 27 of Directive No 2010/13. It provides that “Member States shall take appropriate measures to ensure that audiovisual media services provided by media service providers under their jurisdiction which may impair the physical, mental or moral development of minors are only made available in such a way as to ensure that minors will not normally hear or see them. Such measures may include selecting the time of the broadcast, age verification tools or other technical measures. They shall be proportionate to the potential harm of the programme. The most harmful content, such as gratuitous violence and pornography, shall be subject to the strictest measures. 2. Personal data of minors collected or otherwise generated by media service providers pursuant to paragraph 1 shall not be processed for commercial purposes, such as direct marketing, profiling and behaviourally targeted advertising. 3. Member States shall ensure that media service providers provide sufficient information to viewers about content which may impair the physical, mental or moral development of minors. For this purpose, media service providers shall use a system describing the potentially harmful nature of the content of an audiovisual media service. | For the implementation of this paragraph, Member States shall encourage the use of co-regulation as provided for in Article 4a(1). 4. The Commission shall encourage media service providers to exchange best practices on co-regulatory codes of conduct. Member States and the Commission may foster self-regulation, for the purposes of this Article, through Union codes of conduct as referred to in Article 4a(2)”.

 Case C-34/95, C-35/95, C-36/95 Konsumentombudsmannen (KO), Judgment of 9 July 1997, LawLex200900000391JBJ.

 See Case C-429/02 Bacardi France SAS, Judgment of 13 July 2004, LawLex200900000742JBJ, holding that an advertisement resulting from panels visible on the screen during the broadcast of sporting events does not constitute “television advertising”; Court of Cassation, Commercial Division, April 5, 2005, LawLex200500005262JBJ, considering that a Member State can prohibit indirect television advertising for alcoholic beverages, when such advertising which results from the appearance on the screen of panels that are visible during the retransmission of sporting events cannot be qualified as television advertising within the meaning of the Audiovisual Media Services Directive.

 For an example of national regulations contrary to the free provision of services and freedom of establishment, see , Case C-500/06 Corporación Dermoestética SA, Judgment of 17 July 2008, LawLex200900000991JBJ, holding that national regulations allowing advertising for medical and surgical treatments carried out in private health care establishments on local television channels, but prohibiting it on national television channels, constitutes an unjustified restriction on the free provision of services and freedom of establishment.

 	Directive No 2010/13, Art. 2(2)(a). Pursuant to Article 2(3): “For the purposes of this directive, a media service provider shall be deemed to be established in a Member State in the following cases: (a) the media service provider has its head office in that Member State and the editorial decisions about the audiovisual media service are taken in that Member State; (b) if a media service provider has its head office in one Member State but editorial decisions on the audiovisual media service are taken in another Member State, it shall be deemed to be established in the Member State where a significant part of the workforce involved in the pursuit of the audiovisual media service activity operates.  If a significant part of the workforce involved in the pursuit of the audiovisual media service activity operates in each of those Member States, the media service provider shall be deemed to be established in the Member State where it has its head office. If a significant part of the workforce involved in the pursuit of the audiovisual media service activity operates in neither of those Member States, the media service provider shall be deemed to be established in the Member State where it first began its activity in accordance with the law of that Member State, provided that it maintains a stable and effective link with the economy of that Member State;(c) if a media service provider has its head office in a Member State but decisions on the audiovisual media service are taken in a third country, or vice versa, it shall be deemed to be established in the Member State concerned, provided that a significant part of the workforce involved in the pursuit of the audiovisual media service activity operates in that Member State”. 

 Directive No 2010/13, Art. 2(b) and 4(a).

 Directive No 2010/13, Art. 2(b) and 4(b).

 See Case C-56/96  VT4 Ltd, Judgment of 5 June 1997, LawLex200900002174JBJ.

 See Case C-353/89 Commission v Netherlands, Judgment of 25 July 1991, LawLex200900000459JBJ.

 See Case C-11/95 Commission v Belgium, Judgment of 10 September 1996, LawLex200900000368JBJ; Case C-244/10 Mesopotamia Broadcast A/S METV, Judgment of 22 September 2011, LawLex201200000102JBJ, considering that a Member State can take action against a broadcaster established in another Member State on the grounds that the activities and objectives of this organization violates national law prohibiting the infringement of the principles of international understanding, provided that said measures do not prevent the actual retransmission on the territory of the receiving Member State of television broadcasts produced by said organization from the other Member State.

 See Article 3(2) of Directive No 2010/13.

French Consumer Law

106. Supervision by Member States

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

106. Supervision by Member States

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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