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Info Centre :: Library  :: Case Law

Case Law

Since the 1970s, the Court of Justice  has developed comprehensive case law concerning the broadcasting sector. It covers both the application of general principles of the Treaty, in particular the free provision of services, and  interpretation of the Audiovisual Media Services Directive (the former Television without Frontiers Directive) ("the Directive")

 

European Commission v Kingdom of Spain, supported by United Kingdom of Great Britain and Northern Ireland

Judgment of the Court (First Chamber) of 24 November 2011

(Failure of a Member State to fulfil obligations – Directive 89/552/EEC – Television broadcasting – Advertising spots – Transmission time)
 

In Case C‑281/09,


ACTION under Article 226 EC for failure to fulfil obligations, brought on 22 July 2009,

This case opposed the Commission to the Kingdom of Spain on the definition of the concepts of "advertising spots" and "other forms of advertising" and the application of the corresponding rules contained in Directive 552/89, as modified by Directive 97/36. The Spanish Authorities regarded as "other forms of advertising" four specific types of advertising that the Commission considered to be "advertising spots".

Fully supporting the Commission's position, the ECJ found that:

Any type of television advertising broadcast between programmes or during breaks constitutes, as a general rule, an advertising spot, unless
- the type of advertising concerned is covered by another form of advertising expressly governed by the Directive, or
- it requires a duration greater than that of advertising spots, because of the way it is presented. This exception would however only apply when the application of the hourly time limit set out in the Directive for advertising spots would, without valid justification, amount to disadvantaging the form of advertising concerned compared to advertising spots.

If a specific type of advertising has inherently - because of the way it is presented - a duration that is slightly longer than the usual duration of advertising spots, this fact alone is not sufficient for it to be considered an "other form of advertising".

The Court 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;

 

Football Association Premier League Ltd, NetMed Hellas SA, Multichoice Hellas SA v QC Leisure, David Richardson, AV Station plc, Malcolm Chamberlain, Michael Madden, SR Leisure Ltd, Philip George Charles Houghton, Derek Owen (C-403/08) and Karen Murphy v Media Protection Services Ltd (C-429/08)
 

Judgment of the Court (Grand Chamber) of 4 October 2011

(references for a preliminary ruling from the High Court of Justice of England and Wales, Chancery Division, and the High Court of Justice of England and Wales, Queen's Bench Division (Administrative Court)) -


(Joined Cases C-403/08 and C-429/08)


(Satellite broadcasting - Broadcasting of football matches - Reception of the broadcast by means of satellite decoder cards - Satellite decoder cards lawfully placed on the market in one Member State and used in another Member State - Prohibition on marketing and use in a Member State - Visualisation of broadcasts in disregard of the exclusive rights granted - Copyright - Television broadcasting right - Exclusive licences to broadcast in a single Member State - Freedom to provide services - Article 56 TFEU - Competition - Article 101 TFEU - Restriction of competition by object - Protection of services based on conditional access - Illicit device - Directive 98/84/EC - Directive 2001/29/EC - Reproduction of works within the memory of a satellite decoder and on a television screen - Exception to the reproduction right - Communication of works to the public in public houses - Directive 93/83/EEC)


The case concerned attempts to circumvent the exclusivity agreement for the UK territory between the The Football Association Premier League Ltd (the FAPL) and and BskyB through the import of TV decoders, in this case, from Greece, to the United Kingdom and the offer of thoses decoders to pubs at more favourable prices than the broadcaster in that State. This practice makes it possible for pubs in the UK to show the live transmissions of Premier League football matches using a Greek decoder card.

Following a question for a preliminary ruling from an UK Court the ECJ found that :

1. 'Illicit device' within the meaning of Article 2(e) of Directive 98/84/EC of the European Parliament and of the Council of 20 November 1998 on the legal protection of services based on, or consisting of, conditional access must be interpreted as not covering foreign decoding devices (devices which give access to the satellite broadcasting services of a broadcaster, are manufactured and marketed with that broadcaster's authorisation, but are used, in disregard of its will, outside the geographical area for which they have been issued), foreign decoding devices procured or enabled by the provision of a false name and address or foreign decoding devices which have been used in breach of a contractual limitation permitting their use only for private purposes.

2. Article 3(2) of Directive 98/84 does not preclude national legislation which prevents the use of foreign decoding devices, including those procured or enabled by the provision of a false name and address or those used in breach of a contractual limitation permitting their use only for private purposes, since such legislation does not fall within the field coordinated by that directive.
3. On a proper construction of Article 56 TFEU:

- that article precludes legislation of a Member State which makes it unlawful to import into and sell and use in that State foreign decoding devices which give access to an encrypted satellite broadcasting service from another Member State that includes subject-matter protected by the legislation of that first State;

- this conclusion is affected neither by the fact that the foreign decoding device has been procured or enabled by the giving of a false identity and a false address, with the intention of circumventing the territorial restriction in question, nor by the fact that it is used for commercial purposes although it was restricted to private use.

4. The clauses of an exclusive licence agreement concluded between a holder of intellectual property rights and a broadcaster constitute a restriction on competition prohibited by Article 101 TFEU where they oblige the broadcaster not to supply decoding devices enabling access to that right holder's protected subject-matter with a view to their use outside the territory covered by that licence agreement.

5. Article 2(a) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society must be interpreted as meaning that the reproduction right extends to transient fragments of the works within the memory of a satellite decoder and on a television screen, provided that those fragments contain elements which are the expression of the authors' own intellectual creation, and the unit composed of the fragments reproduced simultaneously must be examined in order to determine whether it contains such elements.

6. Acts of reproduction such as those at issue in Case C-403/08, which are performed within the memory of a satellite decoder and on a television screen, fulfil the conditions laid down in Article 5(1) of Directive 2001/29 and may therefore be carried out without the authorisation of the copyright holders concerned.

7. 'Communication to the public' within the meaning of Article 3(1) of Directive 2001/29 must be interpreted as covering transmission of the broadcast works, via a television screen and speakers, to the customers present in a public house.

8. Council Directive 93/83/EEC of 27 September 1993 on the coordination of certain rules concerning copyright and rights related to copyright applicable to satellite broadcasting and cable retransmission must be interpreted as not having a bearing on the lawfulness of the acts of reproduction performed within the memory of a satellite decoder and on a television screen.
 

Court of Justice Press release 102/11

Eleftheri tileorasi AE ‘ALTER CHANNEL’, Konstantinos Giannikos v Ipourgos Tipou kai Meson Mazikis Enimerosis, Ethniko Simvoulio Radiotileorasis,
 

Judgment of the Court (Third Chamber) of 9 June 2011
 

(Directive 89/552/EEC – Television broadcasting activities – Article 1(d) – ‘Surreptitious advertising’ – Intentional nature – Presentation of cosmetic dental treatment during a television broadcast)
 

Case C‑52/10

Article 1(d) of Council Directive 89/552/EEC as amended by Directive 97/36/EC, is to be interpreted as meaning that the provision of payment or of consideration of another kind is not a necessary condition for establishing the element of intent in surreptitious advertising.

Court of Justice Press release CJE/11/57

 

FIFA v Commission (Television broadcasting

 Judgment of the General Court of 17 February 2011

Article 3a of Directive 89/552/EEC — Measures taken by the United Kingdom concerning events of major importance to United Kingdom society — Football World Cup — Decision declaring the measures compatible with Community law — Statement of reasons — Articles 43 EC, 49 EC and 86 EC — Right to property

Case T-68/08

On February, 17, 2011, the General Court brought its judgement and recognised the validity of Belgian and UK lists of events of major importance as regards the inclusion of the entire final tournament of the FIFA World Cup and UEFA European Championship.
The Court stated that Article 14 of Directive 2010/13/EU is the concrete expression to the possibility for the Member States to restrict the exercise, in the audiovisual field, of fundamental freedoms established by primary Community law, on the basis of overriding reasons in the public interest.
Such restrictions on the fundamental freedoms guaranteed by the Treaty may yet be justified, provided they serve overriding reasons in the public interest, are appropriate for attaining the objective which they pursue and do not go beyond what is necessary in order to attain it. In that regard, it must be borne in mind that freedom of expression, as protected by Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms is one of the fundamental rights guaranteed by the Community legal order and is an overriding reason in the public interest which is capable of justifying such restrictions. Moreover, under Article 10(1) of the ECHR, freedom of expression also includes the freedom to receive information.
As regards the inclusion of the Football World Cup and the Football Euro Championship, the Court stated that recital 18 (which quotes these events as example of events of major importance for society) cannot be construed as meaning that the inclusion of the World Cup or the Euro in a national list of events is automatically compatible. On the other hand, it means that when a Member State includes World Cup matches in its list it does not need to include in its notification to the Commission specific grounds concerning their nature as an event of major importance to the society.

General Court Press release 9/11 English français Deutsch - EC press release MEMO/11/94 English

Télévision française 1 SA (TF1) v Commission des Communautés européennes

Arrêt du Tribunal de première instance du 11 mars 2009

Aides d’État – Financement de France Télévisions par la redevance audiovisuelle – Examen permanent des aides existantes – Recommandation proposant l’adoption de mesures utiles – Engagements de l’État membre acceptés par la Commission – Décision déclarant l’aide compatible avec le marché commun – Recours en annulation – Délai de recours – Nature de l’acte attaqué – Intérêt à agir – Recevabilité – Droits de la défense – Obligation de motivation – Arrêt Altmark

Affaire T-354/05

Le Tribunal de première instance a confirmé la décision de la Commission qui qualifie le reversement de la redevance audiovisuelle par la France aux chaînes publiques de télévision France 2 et France 3 comme une aide d’Etat et reconnait sa compatibilité avec le droit européen. Cet arret suit une plainte du radiodiffuseur commercial TF1, qui soutenait que la redevance audiovisuelle constituait une aide d’État incompatible avec le marché commun. Le Tribunal a reconnu que la France a pris des engagements pour garantir la compatibilité de la redevance, notamment sur le principe de l’absence de surcompensation des coûts du service public. La France s’est par ailleurs engagée à faire contrôler annuellement, par un organisme d’audit indépendant dont le rapport est transmis au Parlement, le respect par les chaînes publiques de leur obligation d’exercer leurs activités commerciales aux conditions du marché.

Lire le Communiqué de presse n° 22/09 français English Deutsch

Unión de Televisiones Comerciales Asociadas (UTECA) v Administración General del Estado

Judgment of the Court (Second Chamber) of 5 March 2009

Reference for a preliminary ruling – Article 12 EC – Prohibition of discrimination on grounds of nationality – Articles 39 EC, 43 EC, 49 EC and 56 EC – Fundamental freedoms guaranteed by the EC Treaty – Article 87 EC – State aid – Directive 89/552/EEC – Pursuit of television broadcasting activities – Obligation for television operators to earmark a percentage of their operating revenue for the pre-funding of European cinematographic films and films made for television, 60% of that funding being reserved to the production of works of which the original language is one of the official languages of the Kingdom of Spain and of which the majority is produced by the Spanish film industry

Case C-222/07

The ECJ had to assess whether the Spanish measure requiring television operators to earmark 5% of their operating revenue for European films, 60% of that funding being reserved for the production of original works in official languages of Spain, was compatible with the Television without Frontiers Directive and the fundamental freedoms and whether it constituted State aid.

The ECJ ruled that the Spanish measure is indeed compatible with Art. 3 of the Directive (which allows Member States to adopt stricter or more detailed rules in the fields coordinated by the Directive) and the fundamental freedoms of the EC Treaty. It also confirmed that such a measure does not constitute State aid in favour of the cinematographic industry.

See also the press release No 18/09 of the Court of Justice

Commission of the European Communities v Infront WM AG.

Judgment of the Court (Fourth Chamber) of 13 March 2008.

Directive 89/552/EEC - Television broadcasting - Action for annulment - Fourth paragraph of Article 230 EC - Meaning of decision of ‘direct and individual’ concern to a natural or legal person.

Appeal

European Court reports 2008 Page 00000

Case C-125/06

Centro Europa 7 Srl v Ministero delle Comunicazioni e Autorità per le garanzie nelle comunicazioni, Direzione generale per le concessioni e le autorizzazioni del Ministero delle Comunicazioni

Judgment of the Court (Fourth Chamber) of 31 January 2008

Freedom to provide services – Electronic communications – Television broadcasting activities – New common regulatory framework – Allocation of radio frequencies

REFERENCE for a preliminary ruling under Article 234 EC, from the Consiglio di Stato (Italy)

Case C‑380/05

Productores de Música de España (Promusicae) v Telefónica de España SAU.

Judgment of the Court (Grand Chamber) of 29 January 2008

Obligations of providers of services – Retention and disclosure of certain traffic data – Obligation of disclosure – Limits – Protection of the confidentiality of electronic communications – Compatibility with the protection of copyright and related rights – Right to effective protection of intellectual property

Reference for a preliminary ruling under Article 234 EC by the Juzgado de lo Mercantil No 5 de Madrid (Spain), made by decision of 13 June 2006, received at the Court on 26 June 2006, in the proceedings

Case C-275/06

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United Pan-Europe Communications Belgium SA and Others v Belgian State.

Judgment of the Court (Third Chamber) of 13 December 2007.

Article 49 EC - Freedom to provide services - National legislation requiring cable operators to broadcast programmes transmitted by certain private broadcasters (‘must carry’) - Restriction - Overriding reason relating to the general interest - Maintenance of pluralism in a bilingual region.

Reference for a preliminary ruling: Conseil d’État - Belgium.
Case C-250/06.
European Court reports 2007

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Kommunikationsbehörde Austria (KommAustria) v Österreichischer Rundfunk (ORF).

Judgment of the Court (Fourth Chamber) of 18 October 2007.

Reference for a preliminary ruling: Bundeskommunikationssenat - Austria.

Freedom to provide services - Television broadcasting activities - Directives 89/552/EEC and 97/36/EC - Definition of ‘teleshopping’ and ‘television advertising’ - Prize game.

Case C-195/06. European Court reports 2007 Page 0
OJ C 315, 22.12.2007, p. 15–15

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Sociedad General de Autores y Editores de España (SGAE) v Rafael Hoteles SA.

Judgment of the Court (Third Chamber) of 7 December 2006.

Reference for a preliminary ruling: Audiencia Provincial de Barcelona - Spain.

Copyright and related rights in the information society - Directive 2001/29/EC - Article 3 - Concept of communication to the public - Works communicated by means of television sets installed in hotel rooms.

Case C-306/05. European Court reports 2006 Page I-11519

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Uradex SCRL v Union Professionnelle de la Radio et de la Télédistribution (RTD) and Société Intercommunale pour la Diffusion de la Télévision (BRUTELE).

Judgment of the Court (Third Chamber) of 1 June 2006.

Reference for a preliminary ruling: Cour de cassation - Belgium.

Copyright and related rights - Directive 93/83/EEC - Article 9(2) - Scope of the powers of a collecting society deemed to be mandated to manage the rights of a copyright owner or holder of related rights which has not transferred the management of his rights to it - Exercise of the right to grant or refuse permission to a cable operator to retransmit a programme by cable.

Case C-169/05. European Court reports 2006 Page I-04973

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Infront WM AG v Commission of the European Communities

Judgment of the Court of First Instance (Fourth Chamber, extended composition) of 15 December 2005

Television broadcasting - Directive 89/552/EEC - Directive 97/36/EC - Article 3a - Events of major importance for society - Admissibility - Infringement of essential procedural requirements

Case T-33/01, European Court reports 2005 Page 0

A Commission decision taken in relation to Art. 3a para. 2 on the compatibility of measures taken by a Member State, i.e. a list of events of major importance for society, has binding legal effects and is therefore open to challenge.

The case followed an action brought by Infront WM AG (previously the Kirch Group) against the list drawn up by the UK. As holder of the rights to some of the events contained in the list, Infront considered that its rights had been breached. The object of the proceedings was a letter from the Commission, informing the relevant British authorities that it had no objections to the measures notified and would therefore proceed to publish them. The Court found that this letter was open to an action because, by triggering the mechanism of mutual recognition, it had binding legal effects. The Court annulled the decision on the grounds that the Commission lacked the necessary power. The College of Commissioners had not been consulted and the Director-General, who signed the decision, had received no specific power from the College. Since the action was upheld on the grounds of procedural infringements, the judgment does not comment on the material legitimacy of measures taken by the Commission under Art. 3a or of list regulations adopted by Member States.

See also the press release from the Court of First Instance of the European Communities: GermanEnglishFrench

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Lagardère Active Broadcast v Société pour la perception de la rémunération équitable (SPRE) and Others

Judgment of the Court (Third Chamber) of 14 July 2005

Copyright and neighbouring rights — Broadcasting of phonograms — Equitable remuneration

Reference for a preliminary ruling from the Cour de cassation

Case C-192/04

OJ C 217, 3.9.2005, p. 19–20

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Mediakabel BV v Commissariaat voor de Media

Judgment of the Court (Third Chamber) of 2 June 2005

Reference for a preliminary ruling: Raad van State - Netherlands

Directive 89/552/CEE - Article 1(a) - Television broadcasting services - Scope of application - Directive 98/34/EC - Article 1(2) - Information society service - Scope of application

Case C-89/04, European Court reports 2005 Page I-04891

The Court ruled that a pay-per-view service which consists of transmitting television programmes intended for reception by the public, that is, an indeterminate number of potential television viewers and which is not supplied on individual demand is a television broadcasting service and, as such, subject to the provisions of the Television without Frontiers Directive. The manner in which the images are transmitted is not a determining element in that assessment.

The determining criterion for the concept of "television broadcasting service" is the broadcast of television programmes intended for reception by the public. Priority should therefore be given to the standpoint of the service provider in the analysis of the concept of 'television broadcasting service'. However, the situation of services which compete with the service in question is not relevant for that assessment.

Mediakabel claimed that it provided an interactive service supplied at individual request falling within the category of information society services and thus outside the scope of competence of the Dutch regulator, the Commissariaat voor de Media.

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Commission of the European Communities v French Republic

Judgment of the Court (Grand Chamber) of 13 July 2004

Failure by a Member State to fulfil its obligations - Article 59 of the EC Treaty (now, after amendment, Article 49 EC) - Television broadcasting - Advertising - National measure prohibiting television advertising for alcoholic beverages marketed in that State, in the case of indirect television advertising resulting from the appearance on screen of hoardings visible during the retransmission of certain sporting events - "Loi Evin"

Case C-262/02, European Court reports 2004 Page I-06569

The French ban on indirect television advertising for alcoholic beverages is compatible with Community Law. It constitutes a restriction on the freedom to provide services, but is justified by the aim of protecting public health. 

The Court observes that indirect television advertising for alcoholic beverages resulting from hoardings visible during the retransmission of sporting events does not constitute a separate announcement broadcast to promote goods or services within the meaning of the 'Television without Frontiers' Directive. It is impossible to transmit that advertising only during the intervals between the different parts of the television programme concerned. Accordingly, the 'Television without Frontiers' Directive is not applicable.

See also Case law Bacardi SAS

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Bacardi France SAS, formerly Bacardi-Martini SAS v Télévision française 1 SA (TF1), Groupe Jean-Claude Darmon SA and Girosport SARL

Judgment of the Court (Grand Chamber) of 13 July 2004

Reference for a preliminary ruling: Cour de cassation - France

Article 59 of the EC Treaty (now, after amendment, Article 49 EC) - Directive 89/552/CEE - Television without frontiers - Television broadcasting - Advertising - National measure prohibiting television advertising for alcoholic drinks marketed in that Member State, in the case of indirect television advertising arising from the appearance on screen of hoardings visible during the transmission of sporting events - "Loi Evin"

Case C-429/02, European Court reports 2004 Page I-06613

See also Case law Commission of the European Communities v French Republic

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RTL Television GmbH v Niedersächsische Landesmedienanstalt für privaten Rundfunk

Judgment of the Court (Fifth Chamber) of 23 October 2003

Reference for a preliminary ruling: Niedersächsisches Oberverwaltungsgericht - Germany

Directive 89/552/EEC - Article 11(3) - Television broadcasting - Television advertising - Advertising breaks in audiovisual works - Definition of series

Case C-245/01, European Court reports 2003 Page I-12489

Films which have been made for television and which provide, from their conception, for breaks for the insertion of advertising come within the meaning of “films made for television” in Article 11(3) of the TVWF Directive. The connections which must link films so that they can come within the exception laid down for “series” by Article 11(3) of the said Directive must relate to the content of the films concerned, such as, for example, the development of the same story from one episode to another or the reappearance of one or more characters in different episodes.

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Danish Satellite TV (DSTV) A/S (Eurotica Rendez-vous Television) v Commission of the European Communities

Judgment of the Court of First Instance (Second Chamber) of 13 December 2000

"Television Without Frontiers" directive - National restrictions on the retransmission across frontiers of television broadcasts - Finding by the Commission that those restrictions are compatible with Community law - Action for annulment - Admissibility

Case T-69/99, European Court reports 2000 Page II-04039

The Court dismissed the application as inadmissible.

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Arbeitsgemeinschaft Deutscher Rundfunkanstalten (ARD) v PRO Sieben Media AG, supported by SAT 1 Satellitenfernsehen GmbH, Kabel 1, K 1 Fernsehen GmbH

Judgment of the Court (Sixth Chamber) of 28 October 1999

Reference for a preliminary ruling: Oberlandesgericht Stuttgart - Germany

Television broadcasting - Limitation on transmission time allocated to advertising

Case C-6/98, European Court reports 1999 Page I-07599

Article 11(3) TFVW is to be construed as prescribing the gross principle, so that, in order to calculate the 45-minute period for the purpose of determining the number of advertising interruptions allowed in the broadcasting of audiovisual works such as feature films and films made for television, the duration of the advertisements must be included in that period.

Article 11(3) TVWF, in conjunction with Article 3(1), authorises Member States to prescribe, for television broadcasters under their jurisdiction, the net principle for advertisements which may be inserted during programmes, and thus to provide that, in order to calculate that period, the duration of the advertisements must be excluded, on condition, however, that those rules are compatible with other relevant provisions of Community law.

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TV 1000 Sverige AB v. The Norwegian Government, represented by the Royal Ministry of Cultural Affairs

Advisory Opinion of the Court of 12 June 1998 in Case E-8/97 (Request for an advisory opinion from Oslo byrett)

Council Directive 89/552/EEC - Transfrontier television broadcasting - Pornography) (Pursuant to Article 27(5) of the Rules of Procedure, only the English and Norwegian texts are authentic

Official Journal C 268 , 27/08/1998 P. 0012 - 0012

The Court held that it is for the national authorities of the receiving State to determine, in accordance with that State's values and national legislation, which programmes might seriously impair the physical, mental or moral development of minors within the meaning of Article 22 of the TVWF Directive.

The exception in the second sentence of Article 22, first paragraph does not extend to programmes "which might seriously impair the physical, mental or moral development of minors" dealt with in the first sentence of Article 22, first paragraph. All the conditions listed in Article 2(2)(a) to (d) of the Directive must be fulfilled in order for the receiving State to restrict retransmission, regard being had to the principle of proportionality and the decision being subject to supervision by the Commission and the EFTA Surveillance Authority, as the case may be. The criteria in Article 2(2)(a) and (b) TVWF are separate criteria, with (a) regulating the gravity of the infringement and (b) providing that the right to provisional suspension of retransmission arises when material infringing Article 22, as laid down in Article 2(2)(a), has been broadcast on three occasions within a period of twelve months.

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Konsumentombudsmannen (KO) v De Agostini (Svenska) Förlag AB (C-34/95) and TV-Shop i Sverige AB (C-35/95 and C-36/95)

Judgment of the Court of 9 July 1997

Reference for a preliminary ruling: Marknadsdomstolen - Sweden

'Television without frontiers' Directive - Television advertising broadcast from a Member State - Prohibition of misleading advertising - Prohibition of advertising directed at children

Joined cases C-34/95, C-35/95 and C-36/95, European Court reports 1997 Page I-03843

The Court held that the Directive does not prevent a Member State from taking measures against an advertiser under general consumer protection regulations against misleading advertising, by reason of an advertisement broadcast from another Member State, simply because there is no law preventing the re-transmission of items broadcast from another Member State in question. Furthermore, a Member State cannot object on grounds of national law to the broadcasting of an advertisement from another Member State which aims to attract the attention of children under 12.

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VT4 Ltd v Vlaamse Gemeenschap

Judgment of the Court (Sixth Chamber) of 5 June 1997

Reference for a preliminary ruling: Raad van State - Belgium

Free movement of services - Television broadcasting - Establishment - Evasion of domestic legislation

Case C-56/96, European Court reports 1997 Page I-03143

The Court held that, according to the Directive, a broadcaster falls within the jurisdiction of the Member State in which it is established, and, if it is established in more than one State, of the Member State within whose jurisdiction the broadcaster has its centre of activity, that is to say where, in particular, its scheduling decisions are taken.

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Criminal proceedings against Paul Denuit

Judgment of the Court (Sixth Chamber) of 29 May 1997

Reference for a preliminary ruling: Tribunal de première instance de Bruxelles - Belgium

Directive 89/552/EEC - Telecommunications - Television broadcasting - Jurisdiction over broadcasters

Case C-14/96, European Court reports 1997 Page I-02785

The Court held that the State cannot object to the re-transmission on its territory of programmes broadcast by a television broadcaster body within the jurisdiction of another Member State where it considers that the programmes of the latter State do not meet requirements of article 4 and 5 of the Directive, since this is a matter the assessment of which is within the field of control of the State of origin.

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Reti Televisive Italiane SpA (RTI) (C-320/94), Radio Torre (C-328/94), Rete A Srl (C-329/94), Vallau Italiana Promomarket Srl (C-337/94), Radio Italia Solo Musica Srl and Others (C-338/94) and GETE Srl (C-339/94) v Ministero delle Poste e Telecomunicazioni

Judgment of the Court (Sixth Chamber) of 12 December 1996

Reference for a preliminary ruling: Tribunale amministrativo regionale del Lazio - Italy

Interpretation - Directive 89/552/EEC - Television broadcasting activities

Joined cases C-320/94, C-328/94, C-329/94, C-337/94, C-338/94 and C-339/94, European Court reports 1996 Page I-06471

The Court equated "telepromozione" with advertising in the form of a direct offer to the public. It held that there is no limitation on the number of times a sponsor may be mentioned during sponsored programmes.

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Commission of the European Communities v Kingdom of Belgium

Judgment of the Court of 10 September 1996

Directive 89/552/EEC - Transmission of programmes by cable

Case C-11/95, European Court reports 1996 Page I-04115

The Court condemned the introduction of a preliminary licence system for cable re-transmission of televised programmes broadcast from other Member States, since this second control system amounts to a denial of freedom of circulation.

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Commission of the European Communities v United Kingdom of Great Britain and Northern Ireland

Judgment of the Court of 10 September 1996

Failure to fulfil obligations - Directive 89/552/EEC - Telecommunications - Television broadcasting - Jurisdiction over broadcasters

Case C-222/94, European Court reports 1996 Page I-04025

The Court confirmed the principle that a broadcaster is within the jurisdiction of the Member State on whose territory it is established, condemning the fact that the said State had chosen to apply a different criterion in the case of satellite broadcasters, namely the place of the uplink connection. The Court likewise condemned the system of differentiating between domestic and non-domestic licences, introduced by the State for satellite broadcasting, and likewise the control exercised over programmes retransmitted by a broadcaster within the jurisdiction of another Member State.

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Société d'Importation Edouard Leclerc-Siplec v TF1 Publicité SA and M6 Publicité SA

Judgment of the Court (Sixth Chamber) of 9 February 1995

Reference for a preliminary ruling: Tribunal de commerce de Paris - France

Televised advertising - Free movement of goods and services

Case C-412/93, European Court reports 1995 Page I-00179

The Court held that the Directive does not prevent Member States from prohibiting the showing of advertisements for certain sectors (in this case mass-marketing) on television channels within their jurisdiction.

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TV10 SA v Commissariaat voor de Media

Judgment of the Court (Fifth Chamber) of 5 October 1994

Reference for a preliminary ruling: Raad van State - Netherlands

Freedom to provide services - National legislation designed to maintain a pluralist, non-commercial broadcasting network.

Case C-23/93, European Court reports 1994 Page I-04795, Swedish special edition Page I-00159, Finnish special edition Page I-00161

The Court has judged that a Member State retains the right to take measures against a television broadcasting organisation established in another Member State, but whose activity is entirely or principally directed towards its own territory, when this establishment has been set up with a view to circumventing the rules which would be applicable to it if it were established on the territory of the first Member State. In the case where a broadcaster establishes itself in another Member State to circumvent the national regulations of the country or countries to which it is sending its programmes, in their entirety or in their greater part, the latter must conform to the provisions which apply to national broadcasting organisations.

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Vereniging Veronica Omroep Organisatie v Commissariaat voor de Media

Judgment of the Court of 3 February 1993

Reference for a preliminary ruling: Raad van State - Netherlands

Freedom to provide services - Free movement of capital - National legislation designed to preserve a pluralistice and non-commercial broadccasting network

Case C-148/91, European Court reports 1993 Page I-00487, Swedish special edition Page I-00017, Finnish special edition Page I-00017

A Member State cannot be denied the right to take measures to prevent a person whose activity is entirely or principally directed towards its territory from exercising the freedom guaranteed by Article 59 of the Treaty in order to evade the rules of conduct which would be applicable to him if he were established within that State.

The provisions of the Treaty on the free movement of capital and the freedom to provide services must be interpreted as not precluding legislation of a Member State which prohibits a broadcasting organization established in that State from investing in a broadcasting company established or to be established in another Member State and from providing that company with a bank guarantee or drawing up a business plan and giving legal advice to a television company to be set up in another Member State, where those activities are directed towards the establishment of a commercial television station whose broadcasts are intended to be received, in particular, in the territory of the first Member State and where those prohibitions are necessary in order to ensure the pluralistic and non-commercial character of the audio-visual system introduced by that legislation.

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Commission of the European Communities v Italian Republic ("Mediawet II")

Judgment of the Court of 3 June 1992

Freedom to provide services - Award of public works contracts

Case C-360/89, European Court reports 1992 Page I-03401

The Court has deemed that a cultural policy can constitute a pressing reason justifying a restriction in the free provision of services.

See also Case law "Mediawet I"

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Stichting Collectieve Antennevoorziening Gouda and others v Commissariaat voor de Media ("Mediawet I")

Judgment of the Court of 25 July 1991

Reference for a preliminary ruling: Raad van State - Netherlands

Freedom to provide services - Conditions imposed on the re-transmission of advertisements contained in radio and television programmes broadcast from other Member States

Case C-288/89, European Court reports 1991 Page I-04007, Swedish special edition Page I-00331, Finnish special edition Page I-00343

See also Case law "Mediawet II"

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Bond van Adverteerders and others v The Netherlands State

Judgment of the Court of 26 April 1988

Reference for a preliminary ruling: Gerechtshof 's-Gravenhage - Netherlands

Prohibition of advertising and subtitling in television programmes transmitted from abroad

Case 352/85, European Court reports 1988 Page 2085, Swedish special edition Page 449, Finnish special edition Page 455

National regulations which are not indiscriminately applicable to the provision of services, whatever their origin, and which are therefore discriminatory, are not compatible with Community law.

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Cinéthèque SA and others v Fédération nationale des cinémas français

Judgment of the Court of 11 July 1985

References for a preliminary ruling: Tribunal de grande instance de Paris - France

Distribution of films in the form of video recordings - National prohibitions

Joined cases 60 and 61/84, European Court reports 1985 Page 2605, Spanish special edition Page 909, Swedish special edition Page 295, Finnish special edition Page 305

The Court has decided that, taking account of the objective of encouraging the creation of cinematographic works, a regulation ensuring the priority use in cinemas of cinematographic works of any origin in relation to other methods of broadcasting is compatible with article 30 of the Treaty, with the reservation of being indiscriminately applicable and proportionate in comparison to the objective sought.

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SA Compagnie générale pour la diffusion de la télévision, Coditel, and others v Ciné Vog Films and others ("Coditel")

Judgment of the Court of 18 March 1980

Reference for a preliminary ruling: Cour d'appel de Bruxelles - Belgium

Provision of services : Cable diffusion of television.

Case 62/79, European Court reports 1980 Page 881, Greek special edition Page 477, Swedish special edition Page 89, Finnish special edition Page 91, Spanish special edition Page 279

Article 59 of the Treaty is not opposed to an assignee of the performance rights of a cinema film in a Member State invoking his right to have the performance prohibited, by television broadcasting via cable, of this film in this State without his authorisation.

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Procureur du Roi v Marc J.V.C. Debauve and others ("Debauve")

Judgment of the Court of 18 March 1980

Reference for a preliminary ruling: Tribunal de première instance de Liège - Belgium

Provision of services : Cable diffusion of television

Case 52/79, European Court reports 1980 Page 833, Greek special edition Page 443, Swedish special edition Page 79, Finnish special edition Page 79, Spanish special edition Page 243

In the absence of harmonisation of the rules applicable in the matter of television broadcasting, all Member States are competent to regulate, restrain or prohibit advertising messages, for reasons of general interest and without discrimination.

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Giuseppe Sacchi

Judgment of the Court of 30 April 1974

Reference for a preliminary ruling: Tribunale civile e penale di Biella - Italy

Case 155-73, European Court reports 1974 Page 409, Greek special edition Page 217, Portuguese special edition Page 223, Spanish special edition Page 203, Swedish special edition Page 269, Finnish special edition Page 271

The broadcasting of televised messages comes under, as far as it is concerned, the rules of the Treaty relating to the provision of services.

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