CJEC, 6th chamber, December 12, 1996, No C-320/94

THE COURT (Sixth Chamber)

1 By six orders of 19 October 1994, received at the Court on 8 (C-320-94), 12 (C-328-94 and C-329-94) and 28 December 1994 (C-337-94, C-338-94 and C-339-94), the Tribunale Amministrativo Regionale del Lazio (Regional Administrative Court for the Lazio Region) referred to the Court for a preliminary ruling under Article 177 of the EC Treaty a number of questions on the interpretation of Council Directive 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 activities (OJ 1989 L 298, p. 23; `the directive'), and in particular of Article 17(1) thereof, concerning sponsoring, and of Articles 1(b) and 18 thereof.

2 Article 1(b) of the directive defines `television advertising' as `any form of announcement broadcast in return for payment or for similar consideration by a public or private undertaking in connection with a trade, business, craft or profession in order to promote the supply of goods or services, including immovable property, or rights and obligations, in return for payment.' It also provides that `except for the purposes of Article 18, this does not include direct offers to the public for the sale, purchase or rental of products or for the provision of services in return for payment.'

3 Article 1(d) of the directive defines `sponsorship' as `any contribution made by a public or private undertaking not engaged in television broadcasting activities or in the production of audio-visual works, to the financing of television programmes with a view to promoting its name, its trade mark, its image, its activities or its products.'

4 Article 17(1) of the directive is worded as follows:

`1. Sponsored television programmes shall meet the following requirements:

(a) the content and scheduling of sponsored programmes may in no circumstances be influenced by the sponsor in such a way as to affect the responsibility and editorial independence of the broadcaster in respect of programmes;

(b) they must be clearly identified as such by the name and/or logo of the sponsor at the beginning and/or the end of the programmes;

(c) they must not encourage the purchase or rental of the products or services of the sponsor or a third party, in particular by making special promotional references to those products or services.'

5 Article 18 provides:

`1. The amount of advertising shall not exceed 15% of the daily transmission time. However, this percentage may be increased to 20% to include forms of advertisements such as direct offers to the public for the sale, purchase or rental of products or for the provision of services, provided the amount of spot advertising does not exceed 15%.

2. The amount of spot advertising within a given one-hour period shall not exceed 20%.

3. Without prejudice to the provisions of paragraph 1, forms of advertisements such as direct offers to the public for the sale, purchase or rental of products or for the provision of services shall not exceed one hour per day.'

6 By Article 3(2) of Decree Law No 408-92 of 19 October 1992 (Gazzetta Ufficiale No 246 of 19 October 1992), which became, after amendment, Law No 483 of 17 December 1992 (Gazzetta Ufficiale No 297 of 18 December 1992), the Italian Minister for Posts and Telecommunications was directed to modify Regulation No 439-91 of 4 July 1991 (Gazzetta Ufficiale No 19 of 24 January 1992) on sponsorship and direct offers to the public, in order to bring it into conformity with Community law.

7 On the basis of that provision, the Minister for Posts and Telecommunications, on a proposal from the Garante per la Radiodiffusione e l'Editoria (Press and Broadcasting Supervisory Board) and having consulted the relevant parliamentary committees and the Council of State, adopted Decree No 581-93 of 9 December 1993 regulating sponsorship of broadcasting and offers made to the public (Gazzetta Ufficiale No 8 of 12 January 1994, `Decree No 581-93').

8 Article 4 of that decree provides:

`1. Sponsorship of television programmes may appear only in invitations to view and in trailers immediately preceding the programme itself, and in appreciation for viewing or other messages of that type appearing at the end of the programme (known as "billboards"), and may be accompanied only by the name and/or logo of one or more undertakings, distinct from the concessionaire, to the exclusion of any advertising slogan or presentation of the products or services of those undertakings.

2. Prior announcements or invitations to view programmes to be broadcast subsequently by the concessionaire, not exceeding 8 seconds in duration (known as "promotions"), are also authorized, and may be accompanied only by the name and/or logo of the sponsor, to the exclusion of any advertising slogan or presentation of the products or services of the latter. There may not be more than three prior announcements or invitations to view in respect of each programme broadcast by concessionaires at national level.

3. Where the sponsored broadcast is longer than 40 minutes, the name or logo of the sponsor may appear once only during the broadcast and for not longer than 5 seconds. The duration of the programme is determined by including signature tunes and opening and closing titles, but without taking account of any breaks or of interruptions for advertising or any other type of interruption, including those due to technical reasons.

4. Where the sponsorship is intended to finance a programme featuring a game or competition, the sponsor's products or services may be awarded to individuals as prizes, even with the statement, where applicable, that they were provided by the sponsor, provided that they do not form the subject-matter of presentations or slogans and are shown only and discreetly at the time they are awarded. Under no circumstances may admission to the game or competition or the award of prizes be made conditional on proof of purchase of products or services of the sponsor or third parties.

5. Without prejudice to the provisions of Article 6, any form of promotional communication which is different or additional in character, or, in any event, is carried out in a manner other than as prescribed in the preceding paragraphs, must be regarded, for the purpose in particular of determining how much transmission time may be devoted to it, as an `advertising message'.

9 Article 12 of Decree No 581-93 lays down rules on advertising under the heading `Spots, telepromotions, announcements; direct offers to the public; limitation of transmission times'. Article 12(b) assimilates `the display of products, the oral or visual presentation of goods, services, the name, the trade mark or the activity of a producer of goods made by the broadcaster (known as "telepromotions")' to ordinary television advertisements for the purpose, in particular, of determining the amount of transmission time that may be devoted to them.

10 Reti Televisive Italiane SpA, Publitalia '80, Radio Torre, Rete A Srl, Vallau Italiana Promomarket Srl, Radio Italia Solo Musica Srl and others and GETE Srl (the applicants in the main action, hereinafter `the applicants') brought an action before the Tribunale Amministrativo Regionale del Lazio for the annulment of Decree No 581-93.

11 Amongst the various pleas raised, they maintain that the Italian provisions on telepromotions and sponsoring do not comply with the directive.

12 As regards telepromotions, the applicants challenge the way in which Decree No 581-93 assimilates them to spot advertising. They maintain that telepromotions constitute more time-consuming forms of advertising, comparable to direct offers to the public for which, pursuant to Article 18(1) of the directive and within the limits laid down by Article 18(3), transmission time may amount to 20% of the daily total.

13 As regards sponsoring, the applicants argue that Decree No 581-93 is more restrictive than Article 17 of the directive, which does not prohibit further references to the sponsor or its products in the course of the programme, provided those references do not encourage purchase in a particular manner by making special promotional references.

14 They also allege that the Minister exceeded the powers conferred upon him by the legislature, which authorized him to make only such amendments to the legislation previously in force as were necessary to bring it into conformity with Community law.

15 Taking the view that the outcome of the disputes before it depended on the interpretation of Articles 1(b), 17(1) and 18 of the directive, the national court decided to stay the proceedings and refer the following questions to the Court of Justice for a preliminary ruling:

`1. Is Directive 89-552-EEC and, in particular, Articles 1(b) and 18 thereof, to be construed as meaning that the expression "forms of advertisements such as direct offers to the public" in Article 18 is used under Community law, for the purposes of increasing the maximum amount of advertising permitted to 20% of daily transmission time,

(a) purely by way of example and is capable of covering other forms of advertising as well, apart from spot advertising, including for the purposes of this case "telepromotions" which, while not containing "offers to the public", could none the less be treated in the same way as such offers on account of some of their inherent characteristics (telepromotions themselves can be identified by the fact that, while suitable breaks clearly distinguish them from their editorial context, nevertheless there is generally an element of visual continuity and they are more time-consuming than spot advertising owing to the inclusion of entertainment and/or games), or

(b) by way of explanation or definition (in accordance with Article 12 of the contested legislation), as meaning that the possibility of increasing the daily concentration of advertising to 20% relates only to "offers to the public" in the strict sense and not to forms of advertising such as "telepromotions" as well, precisely because they lack the qualifying characteristics of an "offer"?'(C-320-94 and C-337-94).

`2. Is Directive 89-552-EEC, and in particular Article 17(1)(b) thereof, to be interpreted as precluding altogether any forms of sponsorship in which the sponsor's name and/or logo may be shown during the programme at times other than the beginning and/or the end of the programme (as provided for, subject to certain derogations, by Article 4 of the contested decree), or as freely permitting repeated forms of sponsorship even during the programme itself?' (C-320-94, C-328-94, C-329-94, C-337-94, C-338-94 and C-339-94).

16 By order of the President of the Court of Justice of 9 February 1995, those cases were joined for the purposes of the written and oral procedure and the judgment.

Question 1

Admissibility

17 The Coordinamento delle Associazioni per la Difesa dell'Ambiente e dei Diritti degli Utenti e Consumatori (Grouping of Associations for the Protection of the Environment and Users' and Consumers' rights, `Codacons'), the Associazione Utenti Radiotelevisivi (Radio and Television Users' Association, `AUR') and the Federazione Italiana Editori Giornali (Italian Federation of Newspaper Publishers, `FIEG'), who have intervened in the main action, consider that the first question referred by the national court is inadmissible.

18 They argue that an interpretation of Article 18(1) of the directive is not required in order to resolve the dispute, since Member States may, as regards the television organizations falling within their jurisdiction, lay down stricter or more detailed rules, especially in the area with which this provision is concerned.

19 FIEG further maintains that the arguments in the action before the national court refer essentially to the national provisions in Article 9c of Italian Law No 483 ratifying Decree Law No 408-92, whereas the Court of Justice may entertain only questions relating to Community law.

20 It should be noted that, under Article 177 of the EC Treaty, where a question concerning the interpretation of the Treaty or secondary measures adopted by the Community institutions is raised before a national court of a Member State, that court may, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court of Justice to give a ruling thereon.

21 In the context of that procedure, the national court, which alone has direct knowledge of the facts of the case, is the best placed to determine, in the light of the particular features of the case, whether a preliminary ruling is necessary to enable it to give judgment (see Case 83-78 Pigs Marketing Board v Redmond [1978] ECR 2347 and Case C-186-90 Durighello v INPS [1991] ECR I-5773).

22 Consequently, where the questions put by the national court concern the interpretation of a provision of Community law, the Court is, in principle, bound to give a ruling (see Case C-231-89 Gmurzynska-Bscher v Oberfinanzdirektion Koeln [1990] ECR I-4003, paragraph 20).

23 The Court does not give a preliminary ruling on a question raised by a national court where, inter alia, the interpretation of Community law or the examination of the validity of a rule of Community law sought by the national court bears no relation to the actual nature of the case or to the subject-matter of the main action (see Case 126-80 Salonia v Poidomani and Giglio [1981] ECR 1563, paragraph 6; Durighello, cited above, paragraph 9; and Case C-343-90 Lourenço Dias v Director da Alfândega do Porto [1992] ECR I-4673, paragraph 18).

24 Not only does the question raised by the national court in this case actually concern the interpretation of an act of the institutions, but it is also not manifestly irrelevant in resolving the main action.

25 The first question must therefore be regarded as admissible.

Substance

26 The first point to be made is that, whilst the directive defines television advertising, it does not define `direct offers to the public for the sale, purchase or rental of products or for the provision of services' or `spot advertising'. As for `telepromotion', the directive makes no mention of it whatsoever.

27 Accordingly, it must be determined in what circumstances a Member State may increase the time devoted to advertising from 15% to 20% of the daily transmission time.

28 That requires consideration of the precise meaning of the expression `forms of advertisements such as direct offers to the public for the sale, purchase or rental of products or for the provision of services' used in the second sentence of Article 18(1) of the directive.

29 It cannot be denied that the use of the words `such as' indicates that the reference by the Community legislature to `direct offers to the public' serves merely as an example, to illustrate the type of advertising which might justify increasing the maximum daily transmission time. If the legislature had intended to restrict the circumstances in which Member States were permitted to raise the maximum daily advertising time to the case where the transmission time devoted to advertising comprised `direct offers to the public', it would have made express provision to that effect.

30 Therefore, it is necessary to examine what, specifically, those offers involve.

31 Direct offers to the public are broadcasts presenting products which may be ordered directly by telephone, mail or videotext and which are delivered to viewers at home. Programmes intended to promote direct offers to the public are significantly longer than spot advertisements, which are forms of promotion usually lasting a very short time, having a very strong suggestive impact, generally appearing in groups at varying intervals during or between programmes, and produced either by those who supply the products or services or by their agents, rather than by the broadcasters themselves.

32 Amongst those features, only the duration of `direct offers to the public', which depends on how that type of promotion is presented, appears capable of justifying the possibility of increasing the maximum transmission time, in order not to disadvantage such offers by comparison with spot advertisements. The fact that the products may subsequently be ordered by telephone, mail or videotext can have no relevance whatever to the increase of transmission time, since the ordering of products is a wholly separate operation from the televised presentation which is the subject-matter of the provision in question.

33 Moreover, that analysis is confirmed by the Explanatory Report accompanying the European Convention of 5 May 1989 on Transfrontier Television, which was drafted at the same time as the directive and is referred to in the preamble to the latter. Paragraph 168 of the report indicates that the option of raising to 20% the ceiling for advertising space referred to in Article 12 of the Convention, the text of which is identical to that of Article 18(1) of the directive, is justified by the need to take account of the development of new forms of publicity such as teleshopping, which are generally more time-consuming than traditional spot advertisements.

34 It must therefore be concluded that the option introduced by the second sentence of Article 18(1) of raising the percentage of transmission time for advertising to 20% of the daily total may also be used for forms of publicity which, whilst not constituting `offers to the public', nevertheless, like them and because of the way in which they are presented, require more time than spot advertisements.

35 Since it appears from the wording of the first question and the observations made before the Court that `telepromotions' are forms of publicity which, by reason of their method of presentation, last longer than spot advertisements, they may, in principle, benefit from the option introduced by Article 18(1) of the directive of increasing the percentage of transmission time devoted to advertising.

36 It should be emphasized, however, that the second sentence of Article 18(1) of the directive in no way obliges Member States to increase the daily transmission time allowed for advertising. Likewise they are at liberty, should they choose to make use of the option introduced by the provision, to do so only in favour of certain more time-consuming forms of advertising. Indeed, inasmuch as Article 19 of the directive provides that `Member States may lay down stricter rules than those in Article 18 for programming time and the procedures for television broadcasting for television broadcasters under their jurisdiction', it must be interpreted as authorizing Member States to lay down stricter rules for the definition of the types of publicity which may benefit from the additional transmission time provided for in the second sentence of Article 18(1), provided however that those rules are compatible with the Treaty.

37 It follows from the above that the directive, and in particular Articles 1(b) and 18 thereof, must be interpreted as meaning that the expression `forms of advertisements such as direct offers to the public' in Article 18 is used in the context of the Community rules, with regard to the possibility of increasing maximum advertising time to 20% of daily transmission time, by way of example. Consequently, it may also cover other forms of promotion, such as `telepromotions' which, like `direct offers to the public', require more time than spot advertisements on account of their method of presentation.

Question 2

Admissibility

38 AUR and Codacons consider that interpretation of Article 17(1)(b) of the directive is not necessary in order to resolve the dispute, since Member States may lay down stricter or more detailed rules for the television organizations falling within their jurisdiction, especially in the area with which this provision is concerned.

39 They also consider that the Italian legislation introduces a scheme which is less restrictive than that laid down in the directive, since it permits the sponsor's name or logo to appear in invitations to view and thanks for viewing, as well as for a maximum duration of five seconds during daily broadcasts lasting for forty minutes or more. AUR and Codacons submit that the applicants in the main action have therefore no interest in challenging the legislation in question, which is the subject of subsidiary actions by the associations intervening in the main action alleging excessive invasion of the television screen by advertising.

40 As regards the need to interpret Article 17(1)(b) of the directive, the arguments of AUR and Codacons must be rejected for the same reasons as those set out in paragraphs 20 to 24 of this judgment.

41 As for the applicants' lack of interest in challenging Decree No 581-93, that is a question which falls within the jurisdiction of the national court, even if an interpretation of the directive is necessary before it can be resolved.

42 The second question must therefore be considered to be admissible.

Substance

43 Regarding the interpretation to be given to Article 17(1)(b) of the directive, there is nothing in the wording of that provision to suggest that the Community legislature intended to restrict reference to sponsorship to the beginning and/or the end of programmes.

44 The conclusion that that provision merely lays down a minimum requirement as regards the mentioning of the sponsor's name and/or logo is confirmed by the fact that the Commission's initial proposal (OJ 1986 C 179, p. 4), which expressly restricted mention of the sponsor to the beginning and the end of the programme, was not adopted, even though the European Parliament not only gave a favourable opinion on 20 January 1988 (OJ 1988 C 49, p. 53) but also sought, on the second reading, to introduce an amendment aimed at re-establishing the original provision (OJ 1989 C 158, p. 138).

45 Although Article 17(1)(b) must be interpreted as permitting mention of the sponsor's name and/or logo during a programme, it must be borne in mind that Article 17(1)(c) provides that sponsored television programmes must not encourage the purchase or rental of the products or services of the sponsor or a third party, in particular by making special promotional references to those products or services.

46 Moreover, under Article 3(1) of the directive, Member States remain free, as regards television broadcasters under their jurisdiction, to lay down stricter or more detailed rules in the areas which it covers. It is thus implicit that, even if Article 17(1)(b) does not prohibit the mentioning of the sponsor's name or logo during a programme, Member States may impose stricter rules in this area on broadcasters within their jurisdiction, provided they do not infringe the freedoms guaranteed by the EC Treaty and, in particular, the freedom to provide services and the free movement of goods.

47 It follows from the above that the directive, and in particular Article 17(1)(b) thereof, must be interpreted as permitting the insertion of the sponsor's name or logo at times other than the beginning and/or the end of the programme.

Costs

48 The costs incurred by the Italian, Greek, Austrian and Portuguese Governments and by the Commission of the European Communities, which have submitted observations to the Court, are not recoverable. Since these proceedings are, for the parties to the main proceedings, a step in the proceedings pending before the national court, the decision on costs is a matter for that court.

On those grounds,

THE COURT

(Sixth Chamber),

in answer to the questions referred to it by the Tribunale Amministrativo Regionale del Lazio, by orders of 19 October 1994 and 9, 12 and 28 December 1994, hereby rules:

1. Council Directive 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 activities, and in particular Articles 1(b) and 18 thereof, must be interpreted as meaning that the expression `forms of advertisements such as direct offers to the public' in Article 18 is used in the context of the Community rules, with regard to the possibility of increasing maximum advertising time to 20% of daily transmission time, by way of example. Consequently, it may also cover other forms of promotion, such as `telepromotions' which, like `direct offers to the public', require more time than spot advertisements on account of their method of presentation.

2. Directive 89-552, and in particular Article 17(1)(b) thereof, must be interpreted as permitting the insertion of the sponsor's name or logo at times other than the beginning and/or the end of the programme.