CJEU, 1st chamber, November 24, 2011, No C-281/09

THE COURT (First Chamber),

1 By its action, the Commission of the European Communities asks the Court to declare that, by tolerating flagrant, repeated and serious infringements of the rules set out in Article 18(2) 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), as amended by Directive 97/36/EC of the European Parliament and the Council of 30 June 1997 (OJ 1997 L 202, p. 60) ('Directive 89/552'), the Kingdom of Spain has failed to fulfil its obligations under Article 3(2) of that directive, read in conjunction with Article 10 EC.

Legal context

European Union law

2 The 27th recital in the preamble to Directive 89/552 states that 'in order to ensure that the interests of consumers as television viewers are fully and properly protected, it is essential for television advertising to be subject to a certain number of minimum rules and standards and that the Member States must maintain the right to set more detailed or stricter rules ...'.

3 Article 1 of Directive 89/552 provides:

'For the purpose of this Directive:

...

(c) "television advertising" means any form of announcement broadcast whether in return for payment or for similar consideration or broadcast for self-promotional purposes 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, rights and obligations, in return for payment;

...

(e) "sponsorship" means 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;

(f) "teleshopping" means direct offers broadcast to the public with a view to the supply of goods or services, including immovable property, rights and obligations, in return for payment.'

4 Article 3(2) of Directive 89/552 provides:

'Member States shall, by appropriate means, ensure, within the framework of their legislation, that television broadcasters under their jurisdiction comply with the provisions of this Directive.'

5 Under Article 17(1) of that directive:

'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.'

6 Article 18 of Directive 89/552, in its original version, provided:

'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%.

...'

7 Following its amendment by Directive 97/36, Article 18 of Directive 89/552 provides:

'1. The proportion of transmission time devoted to teleshopping spots, advertising spots and other forms of advertising, with the exception of teleshopping windows within the meaning of Article 18a, shall not exceed 20% of the daily transmission time. The transmission time for advertising spots shall not exceed 15% of the daily transmission time.

2. The proportion of advertising spots and teleshopping spots within a given clock hour shall not exceed 20%.

3. For the purposes of this Article, advertising does not include:

- announcements made by the broadcaster in connection with its own programmes and ancillary products directly derived from those programmes;

- public service announcements and charity appeals broadcast free of charge.'

National law

8 Directive 89/552 was incorporated into the Spanish legal order by Law 25/1994 of 12 July 1994 (BOE No 166 of 13 July 1994, p. 22342), as amended by Law 22/1999 of 7 June 1999, Law 15/2001 of 9 July 2001, and Law 39/2002 of 28 October 2002 ('Law 25/1994').

9 The Spanish authorities apply the legislation on advertising in accordance with the interpretation criteria relating to advertising broadcasts applied by the Sub-directorate-general for contents of the Information Society as part of its inspection and monitoring services (criterios interpretativos de emisiones publicitarias aplicados por la subdirección general de contenidos de la S. I. en sus servicios de inspección y control), of 17 December 2001 ('the interpretation criteria').

10 On page 5 of the interpretation criteria, under the heading 'Forms of presentation of television advertising', a distinction is made between 'spots' and 'other forms of advertising', a distinction which, according to those criteria, 'has significant consequences in relation to the restrictions on the duration of a given broadcast time'.

11 On page 25 et seq. of the interpretation criteria, the restrictions applicable to advertising in relation to duration are stated as follows:

'Limit per hour

In each clock hour of the day, the broadcasting time available to advertising in all its forms and to teleshopping spots shall not exceed 17 minutes.

Subject to the limits stated above, the time available to advertising spots and to teleshopping spots, excluding self-promotional advertising, shall not exceed 12 minutes in the same period.'

12 The daily limits are set as follows in the interpretation criteria:

'The total broadcasting time allocated to advertising in all its forms and to teleshopping, with the exception of teleshopping programmes governed by paragraph 3 of this article, shall not represent more than 20% of the daily broadcasting time.

The broadcasting time allocated to advertising spots shall not represent more than 15% of the total daily broadcasting time.'

13 The interpretation criteria specify the levels of the daily limits as follows:

'Advertising (in all its forms) and teleshopping spots: 20% of the daily broadcasting time.

This restriction shall apply to advertising in all its forms and to all forms of teleshopping, with the exception of teleshopping programmes.

Advertising spots: 15% of the daily broadcasting time.

This restriction shall not apply to other forms of advertising or to teleshopping spots and programmes.'

14 The interpretation criteria define advertising spots as follows:

'Spot: an audiovisual advertisement of short duration (normally between 10 and 30 seconds) independent of programming. A stock production (maintained in durable form) capable of being re-broadcast.'

15 The interpretation criteria define 'other forms of advertising' as follows:

'Advertorial: an advertisement of a duration longer than a spot, generally with a story line, informative or descriptive. Also a stock production capable of being re-broadcast although, given its specific characteristics of duration and story line, it is generally not re-broadcast.

Telepromotion: an advertisement associated with a programme which uses the same set, the same props, the same staging and/or the same costumes as the programme with which it is associated. A 'fluid' production which is intended to be re-broadcast not independently but solely in connection with the re-broadcasting of the programme in which it occurred. Given that telepromotions of the same product in successive broadcasts of a programme correspond to different recordings (those of the different episodes of the programme), they are never identical.

A telepromotion may consist of an announcement which is entirely oral by the presenter to the extent that that announcement has an advertising objective. ...

Sponsorship credits: at the request of certain television companies, the previous Secretary-General with responsibility for communications decided that a particular type of spot - the 'euroclaqueta', which is a name used by one company - in which the sponsorship of a programme and the advertising of the sponsor are effected simultaneously, is to be included among other forms of advertising, provided that it satisfies the following three conditions:

- maximum duration of 10 seconds;

- broadcast immediately before or after the programme in question;

- production features which are clearly distinct from the production of conventional spots. ...

Micro-ad slots: micro-slots containing advertising announcements shall be considered to be an "other form of advertising" where their duration is greater than 60 seconds and where they do not consist of a mere accumulation of spots with a vague common theme'.

The pre-litigation procedure and the procedure before the Court

16 The Commission instructed Audimetrie, an independent consulting company, to carry out a study of the programming of several major Spanish television channels over a reference period of two months in 2005. Having found that, as it believed, a number of infringements of Articles 11 and 18 of Directive 89/552 had been committed, the Commission sent to the Kingdom of Spain a letter, dated 26 January 2007, in which it requested the Kingdom of Spain to submit its observations on the results of that study.

17 Following a meeting, held on 13 March 2007, of Commission staff and the Spanish authorities, the Kingdom of Spain sent to the Commission a letter from the Directorate General for the development of the Information Society of the Ministry for Industry, Tourism and Commerce, which contained more detailed information on the practice followed by the Spanish authorities. The Commission inferred from that reply that the Kingdom of Spain had failed to fulfil its obligations under Article 3(2) of Directive 89/552. Consequently, the Commission sent to the Kingdom of Spain a letter of formal notice, dated 11 July 2007, inviting it to submit its observations within a period of two months.

18 In that letter, the Commission raised three grounds of complaint, the first being that the Kingdom of Spain had failed to fulfil its obligations by restrictively defining the concept of 'advertising spots' referred to in Article 18(2) of Directive 89/552, while interpreting the concept of 'other forms of advertising' so broadly that it included certain types of advertising which, in the Commission's opinion, fall to be classified as advertising spots. Since the other grounds of complaint were later abandoned by the Commission, they have no relevance to this case.

19 The Kingdom of Spain replied to that letter of formal notice by letter dated 26 October 2007, annexing a report from the Ministry for Industry, Tourism and Commerce. As regards the concept of 'advertising spot', the Kingdom of Spain maintained that there continued to be differences of opinion on the interpretation of that concept.

20 Taking the view that it was clear from that reply that the Kingdom of Spain had not adopted the measures required to ensure compliance with the obligations laid down in Article 18(2) of Directive 89/552, on 8 May 2008 the Commission sent a reasoned opinion to the Kingdom of Spain and called on it to take the necessary measures to comply with the directive within the period of two months from the date of service.

21 As the Commission found the reply provided in that regard by the Kingdom of Spain on 8 September 2008 to be unsatisfactory, it decided to bring the present action.

22 The Kingdom of Spain and the United Kingdom of Great Britain and Northern Ireland, which has intervened in support of the defendant Member State, contend that this action should be dismissed.

The action

Arguments of the parties

23 It must be borne in mind that the Commission's action relates to four types of advertising broadcast on the Spanish television channels, namely advertorials, telepromotions, sponsorship credits and micro-ads. The Commission considers that the broadcast in Spain of those four types of advertising falls within the scope of the concept of 'advertising spots'. Conversely, the Kingdom of Spain takes the view that these constitute 'other forms of advertising', and that, as such, they qualify for broadcasting time which is subject to different hourly and daily limits.

24 The Commission claims that it can be inferred from the judgment in Joined Cases C-320/94, C-328/94, C-329/94 and C-337/94 to C-339/94 RTI and Others [1996] ECR I-6471 that there is a presumption that, in principle, any type of advertising broadcast between programmes or during breaks constitutes an 'advertising spot' within the meaning of Directive 89/552, and, consequently, is subject to the hourly limit laid down in Article 18(2) of that directive. Only the markedly greater length of certain types of advertising, required by the way in which they are presented, would exceptionally justify such types of advertising not being subject to that limit.

25 The Commission thus considers that the four types of advertising at issue do not generally have a duration which markedly exceeds that of conventional advertising spots. The Commission adds that, where that is not the case, the explanation is in no respect to be found in features which are inherent in the way in which those types of advertising are presented, given that these are similar, if not identical, to those of conventional advertising spots.

26 In the light of those considerations, the Commission claims that the four types of advertising at issue fall within the scope of the concept of advertising spots. More specifically, as regards advertorials, it is clear from the study conducted by Audimetrie that these are broadcast between programmes or during breaks, and their broadcasting frequency is identical to that of advertising spots. Further, advertorials are similar to certain advertising spots in terms of their duration and suggestive impact.

27 As regards telepromotion, the Commission states that its action is directed only against telepromotion spots. These have a brief duration, approximately one minute, which cannot be regarded as a duration significantly longer than that of conventional advertising spots. Further, telepromotion spots have the characteristic of being 'stock announcements' which, while they may be associated with a particular programme, because of the presence of certain actors and particular visual elements, are entirely independent of those programmes. Further, they are broadcast in advertising breaks and, like conventional advertising spots, are designed to be re-broadcast, as they very frequently are.

28 As regards sponsorship credits, the Commission bases its action on the relevant definition in the interpretation criteria, according to which these are a particular type of advertising spot, namely the 'euroclaqueta', in which the sponsorship of a programme and the advertising of the sponsor are effected simultaneously, with the result that the public is encouraged to purchase the goods or services of the sponsor. However, the Commission points out that, under Article 17 of Directive 89/552, classification as 'sponsorship' is subject to the condition that the announcement contains no encouragement to purchase the goods or services offered by the sponsor.

29 As regards micro-ads, the Commission again relies on their definition in the interpretation criteria, which state that micro-ads containing advertising announcements are considered to be an 'other form of advertising' where their duration is greater than 60 seconds and where they do not consist of a simple accumulation of advertising spots with a vague common theme. However, the Commission claims that the technical features of presentation and the characteristics of these micro-ads do not at all require that they be longer in duration than conventional advertising spots.

30 Consequently, according to the Commission, it has been established that the Kingdom of Spain has failed to fulfil its obligations, because, since the four types of advertising at issue have been considered to be 'other forms of advertising' and not to be 'spot advertising', they have been broadcast on the Spanish television channels for up to 17 minutes per hour, a duration which, according to the Commission, exceeds by 50 % the maximum limit of 12 minutes per clock hour laid down in Article 18(2) of Directive 89/552.

31 The Kingdom of Spain contends that Article 18 of Directive 89/552 does not define either the concept of 'advertising spot' or that of 'other forms of advertising'. These, it argues, are generic and open concepts which do not lend themselves to a numerus clausus system and which come within the more general concept of 'television advertising'. In particular, 'other forms of advertising' include advertising productions of various kinds which, by reason of their duration and the particular characteristics of their production or broadcasting, or because of their objective or their association with specific programmes or activities of the television broadcaster, are not considered to fall within the scope of the traditional concept of 'advertising spots'.

32 According to the Kingdom of Spain, the definition of television advertising given by Directive 89/552 is a very broad general concept covering a range of advertisements which brings together not only advertising spots or teleshopping spots, but also other types of advertising such as telepromotions, advertorials, overlays, sponsorship credits, micro-ads comparable to advertorials, self-promotional spots, virtual advertising and public service advertising, these being types of advertising the treatment of which may vary in respect of how frequently they are broadcast, whether programmes are interrupted and whether they are broadcast in isolation or together with others, all according to the objectives to be attained.

33 In fact, the interpretation to be given to the concepts of 'advertising spots' and 'other forms of advertising' must, according to the Kingdom of Spain, be determined by the objective pursued by Directive 89/552. That objective is to seek a balance between, on the one hand, the funding requirements of television broadcasters, their freedom to conduct a business and respect for their editorial independence, and, on the other hand, protection of the interest of consumers, as television viewers, against excessive advertising. That is why Law 25/1994 not only set an hourly limit of 12 minutes for advertising spots and teleshopping spots, but also laid down a supplementary limit of 17 minutes for the broadcasting of any form of quantifiable advertising, including self-promotional advertising for the broadcasters' products, without the possibility of accumulating those two limits in the same period of an hour, that legislation consistently respecting the fixed limit of 12 minutes for advertising spots and teleshopping spots.

34 The Kingdom of Spain contends that the four types of advertising at issue do not fall within the scope of the concept of advertising spots, not only because of their standard duration, but also because their marketing is less aggressive, their suggestive capacity vis-à-vis the consumer is lower and, for television viewers, they involve less interference with the enjoyment of programmes.

35 The United Kingdom submits that the Commission's action is based on an interpretation of the concept of advertising spots which does not respect the fundamental differences established by Directive 89/552 between, on the one hand, advertising spots and, on the other hand, other forms of advertising, which include sponsorship and announcements made by the television broadcaster in relation to its own programmes, referred to in Article 18(3) of the directive.

36 The United Kingdom is of the opinion that sponsorship, provided that it satisfies the conditions set out in Article 17 of Directive 89/552, is not subject to the restrictions specified in Article 18 thereof. The Commission's approach, to the effect that sponsorship credits constitute advertising spots, is therefore, it submits, misconceived. If a sponsorship credit meets the requirements set out in Article 17 of that directive, the fact that it may promote certain goods or services offered by a sponsor does not mean that it constitutes an advertising spot.

37 As regards announcements made by the broadcaster in connection with its own programmes, the United Kingdom states that the Commission does not respect the exception laid down in Article 18(3) of Directive 89/552 in relation to those announcements. The consequence of the Commission's approach would be to include the broadcaster's announcements within the scope of the concept of advertising spots on the mere ground that that they promote the services provided by the broadcaster. According to the United Kingdom, that approach is misconceived inasmuch as it deprives the exclusion contained in Article 18(3) of all effect.

Findings of the Court

38 By its action, the Commission complains that the Kingdom of Spain has infringed Article 3(2) of Directive 89/552 by tolerating repeated infringements of the rules set out in Article 18(2) of that directive, which lay down an hourly limit on broadcasting time in relation to, inter alia, advertising spots. In particular, the Spanish authorities, it is argued, interpret incorrectly and too narrowly the concept of 'advertising spots' referred to in Article 18 of the directive, with the result that certain types of television advertising broadcast in Spain, namely advertorials, telepromotions, sponsorship credits and micro-ads, are excluded from that concept and are not subject to that hourly restriction.

39 Consequently, the essential matter to be resolved, in these proceedings, is to determine whether the four types of advertising at issue must be classified as 'advertising spots', as claimed by the Commission, or whether they constitute 'other forms of advertising', as the Kingdom of Spain argues.

40 In that regard, it is necessary to consider what is covered by the concept of 'advertising spots', as referred to in Article 18(1) and (2) of Directive 89/552.

41 It is clear that that concept is not defined by Directive 89/552, which, moreover, does not refer, on that point, to the law of the Member States.

42 In those circumstances, it must be borne in mind that it follows from the need for uniform application of European Union law and from the principle of equality that the terms of a provision of that law which makes no express reference to the law of the Member States for the purpose of determining its meaning and scope must normally be given an autonomous and uniform interpretation throughout the European Union, having regard to the context of the provision and the objective pursued by the legislation in question (see, to that effect, Case C-195/06 Österreichischer Rundfunk [2007] ECR I-8817, paragraph 24 and case-law cited, and Case C-396/09 Interedil [2011] ECR I-0000, paragraph 42).

43 Accordingly, the scope which the European Union legislature sought to give to the concept of 'advertising spots', within the meaning of Article 18(1) and (2) of Directive 89/552, must be examined in the light of the context of that provision and the objective pursued by the legislation in question (see, by analogy, Österreichischer Rundfunk, paragraph 25).

44 It follows from the 27th recital in the preamble to Directive 89/552, as well as from Article 18(1) and (2) thereof, that Article 18 is intended to establish a balanced protection of the financial interests of television broadcasters and advertisers, on the one hand, and the interests of rights holders, namely writers and producers, and of consumers as television viewers, on the other (see, by analogy, Case C-245/01 RTL Television [2003] ECR I-12489, paragraph 62).

45 In this latter regard, the Court has already stated that the protection of consumers, as television viewers, from excessive advertising is an essential aspect of the objective of that directive (Österreichischer Rundfunk, paragraph 27).

46 With that objective specifically in mind, as is stated in the 27th recital itself, the European Union legislature chose to ensure that the interests of consumers as television viewers were fully and properly protected by making the different forms of promotion such as television advertising, teleshopping and sponsorship subject to a certain number of minimum rules and standards (see, to that effect, Österreichischer Rundfunk, paragraph 26).

47 In particular, Directive 89/552 not only established limits on the broadcasting time of television advertising, as defined in Article 1(c) thereof, but also created, as is clear from Article 18(2), a distinction between daily limits and hourly limits. That distinction takes account of the fact that hourly limits, unlike daily limits, have a direct impact on peak-time viewing, that is to say, the periods during which the need to protect television viewers is of heightened importance.

48 It is true that, as stated by the Kingdom of Spain, the Court ruled in Case C-6/98 ARD [1999] ECR I-7599, paragraphs 29 and 30, that the provisions of Directive 89/552 which impose a restriction on the freedom to provide television broadcasting services must, where they are not drafted in clear and unequivocal terms, be given a restrictive interpretation.

49 However, it remains the case that, as stated by the Advocate General in point 75 of his Opinion, the concept of 'advertising spots' stemming from Article 18 of Directive 89/552 must be interpreted taking into account that directive's objective, which is to reconcile the exercise of the freedom to broadcast television advertising announcements with the requirement that television viewers be protected from the broadcasting of excessive advertising.

50 In that regard, the Court has also stated, as correctly observed by the Commission, that advertising spots 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 (RTI and Others, paragraph 31).

51 In RTI and Others, the Court, in the context of distinguishing the concept of spot advertisements from the concept of forms of advertisements such as 'direct offers to the public' provided for in Directive 89/552 in its original version, held that, in essence, the justification for increasing, exceptionally, the maximum transmission time in relation to those offers lay in the fact that their duration, because of the way in which they were presented, was greater and that the application of the limits on broadcasting time laid down in relation to spot advertisements amounted to disadvantaging those offers by comparison with spot advertisements. The Court stated, moreover, that those criteria could also be used in respect of other forms of promotion (see, to that effect, RTI and Others, paragraphs 32, 34 and 37).

52 It follows that any type of television advertising broadcast between programmes or during breaks constitutes, as a general rule, an 'advertising spot' within the meaning of Directive 89/552, unless the type of advertising concerned were to be covered by another form of advertising expressly governed by that directive, as applies to, inter alia, 'teleshopping', or unless it were to require, because of the way in which it is presented, a duration greater than that of advertising spots, on condition that an application of the restrictions prescribed in respect of advertising spots would, without valid justification, amount to disadvantaging the form of advertising concerned by comparison with advertising spots.

53 Consequently, even if a specific type of advertising has inherently, that is to say, because of the way in which it is presented, a duration which is slightly longer than the usual duration of advertising spots, that fact alone is not sufficient reason for it to be classified as an 'other form of advertising' within the meaning of Article 18(1) of Directive 89/552.

54 It is clear from the court-file, and in particular from the Audimetrie report mentioned in paragraph 16 of this judgment, the factual accuracy of which has not been validly challenged by the Kingdom of Spain, that each of the four types of advertising at issue in this case generally has a duration of no more than two minutes.

55 It follows that those types of advertising fall within the scope of the concept of advertising spots and are therefore subject to the restrictions on broadcasting time laid down in Article 18(2) of Directive 89/552.

56 In the light of all the foregoing, it must be held that, by tolerating a situation in which the broadcasting of certain types of advertising, such as advertorials, telepromotion spots, sponsorship credits and micro-ads, on Spanish television channels has a duration which exceeds the maximum limit of 20% of the transmission time within a clock hour, as laid down in Article 18(2) of Directive 89/552, the Kingdom of Spain has failed to fulfil its obligations under Article 3(2) of that directive.

Costs

57 Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party's pleadings. Since the Commission has applied for costs and the Kingdom of Spain has been unsuccessful, the latter must be ordered to pay the costs.

On those grounds, the Court (First Chamber) hereby:

1. Declares that, by tolerating a situation in which the broadcasting of certain types of advertising, such as advertorials, telepromotion spots, sponsorship credits and micro-ads, on Spanish television channels has a duration which exceeds the maximum limit of 20% of the transmission time within a clock hour, as laid down in Article 18(2) 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, as amended by Directive 97/36/EC of the European Parliament and the Council of 30 June 1997, the Kingdom of Spain has failed to fulfil its obligations under Article 3(2) of that directive;

2. Orders the Kingdom of Spain to pay the costs.