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CJEU Case C-234/12 / Opinion

Sky Italia Srl v Autorità per le Garanzie nelle Comunicazioni
Policy area
Audiovisual and media
Deciding body type
Court of Justice of the European Union
Deciding body
Advocate General
Type
Opinion
Decision date
16/05/2013
ECLI (European case law identifier)
ECLI:EU:C:2013:323

EU Charter of Fundamental Rights

Title III: Equality

Article 21 - Non-discrimination

Title III: Equality

Article 20 - Equality before the law

Title II: Freedoms

Article 11 - Freedom of expression and information

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  • CJEU Case C-234/12 / Opinion
    Key facts of the case:

     

    Request for a preliminary ruling from the Tribunale amministrativo regionale per il Lazio.

    Television broadcasting — Directive 2010/13/EU — Articles 4(1) and 23(1) — Advertising spots — National rule laying down a maximum percentage of broadcasting time which can be dedicated to advertising for pay-TV broadcasters which is lower than that laid down for free-to-air TV broadcasters — Equal treatment — Freedom to provide services.

    Outcome of the case:

    In the light of the foregoing considerations, I suggest that the Court answer the questions referred for a preliminary ruling by the Tribunale amministrativo regionale per il Lazio as follows:

    (1) A national rule which lays down, below the maximum transmission time of 20% of a given clock hour prescribed in Article 23(1) of Directive 2010/13/EU, shorter hourly advertising limits for television advertising on pay TV than on free-to-air private TV is

    • incompatible with Article 4(1) of the directive in conjunction with the general principle of equal treatment under EU law and with Article 56 TFEU in so far as it pursues the aim of ensuring that free-to-air TV broadcasters receive higher advertising revenue, even though they do not have an apparent competitive disadvantage;
    • compatible with Article 4(1) of the directive in conjunction with the general principle of equal treatment under EU law and with Article 56 TFEU in so far as it pursues the aim, in a proportionate manner, of protecting consumers as viewers against excessive television advertising.

    It is for the national court to examine which of these two aims are pursued by the national rule and, if it pursues both aims, which is foremost.

    (2) Articles 49 TFEU and 63(1) TFEU do not preclude such a rule.

  • Paragraphs referring to EU Charter

    13) The Tribunale amministrativo regionale per il Lazio ( 11 ) has doubts as to the compatibility of the national legal basis with EU law. By order of 7 March 2012, it therefore stayed the proceedings and referred the following questions to the Court of Justice for a preliminary ruling:

    ‘(1) Must Article 4 of Directive 2010/13/EU, the general principle of equality and the rules of the Treaty on the Functioning of the European Union relating to the free movement of services, the right of establishment and the free movement of capital be interpreted as precluding the rules in Article 38(5) of Legislative Decree No 177/2005 which lay down shorter hourly advertising limits for pay-TV broadcasters than for free-to-air broadcasters?

    (2) Does Article 11 of the Charter of Fundamental Rights of the European Union, interpreted in the light of Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms and the case-law of the European Court of Human Rights, and does the principle of pluralism in the media, in particular, preclude the rules in Article 38(5) of Legislative Decree No 177/2005 which lay down shorter hourly advertising limits for pay-TV broadcasters than for free-to-air broadcasters, distorting competition and creating – or rather strengthening – dominant positions in the television advertising market?’

    ...

    23) The setting of maximum transmission times for television advertising is also part of the implementation of Union law within the meaning of Article 51(1) of the Charter of Fundamental Rights. Directive 2010/13 requires the Member States to prescribe such maximum transmission times within the framework stipulated by EU law of up to 20% of a given clock hour. If a national legislature takes measures to implement that obligation, as happened in Italian law with the 14% maximum transmission time for advertising on pay TV (for 2011), it is required to comply with EU fundamental rights including the general principle of equal treatment under EU law.

    ...

    33) The principle of equal treatment is a general principle of European Union law, enshrined in Articles 20 and 21 of the Charter of Fundamental Rights of the European Union ( 19 ) and thus enjoys the status of a fundamental right of the European Union.

    ...

    69) Contrary to the view taken by RTI, the second question cannot be rejected on the ground that it concerns only national law. The freedom and pluralism of the media is also a principle of EU law which is now enshrined, not least, in Article 11(2) of the Charter of Fundamental Rights. The Court may in principle be questioned on the interpretation of that principle by way of the preliminary ruling procedure.

    ...

    74) The principle of the freedom and pluralism of the media, as laid down in Article 11(2) of the Charter of Fundamental Rights, is of great importance in a democratic society. ( 37 ) Directive 2010/13 also pursues the aim of preventing restrictions on pluralism and freedom of televised information. ( 38 )

    ...

    79) Article 11(2) of the Charter of Fundamental Rights does, however, preclude a national provision governing television broadcasting activities which is capable of significantly distorting competition between broadcasters and thereby creating the serious risk of an impairment of the freedom and pluralism of the media.