Case C‑234/12

Sky Italia Srl

v

Autorità per le Garanzie nelle Comunicazioni

(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)

Summary — Judgment of the Court (Second Chamber), 18 July 2013

1.        Freedom to provide services — Television broadcasting activities — Directive 2010/13 — Establishment of minimum rules without complete harmonisation of national rules

(European Parliament and Council Directive 2010/13)

2.        Freedom to provide services — Television broadcasting activities — Directive 2010/13 — National rule laying down shorter advertising time limits for pay-TV broadcasters than those for free-to-air broadcasters — Lawfulness — Condition — Observance of the principle of proportionality — Assessment by the national court

(Art. 56 TFEU; European Parliament and Council Directive 2010/13, Art. 4(1))

3.        Questions referred for a preliminary ruling — Jurisdiction of the Court — Need to provide the Court with sufficient information on the factual and legislative context — Extent of the obligation in the sphere of competition — Inadmissibility

(Art. 267 TFEU; Rules of Procedure of the Court of Justice, Art. 94)

1.        See the text of the decision.

(see para. 12)

2.        Article 4(1) of Directive 2010/13 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services, as well as the principle of equal treatment and Article 56 TFEU must be interpreted as not precluding, in principle, a national rule which lays down shorter hourly television advertising limits for pay-TV broadcasters than those set for free-to-air broadcasters, provided that the principle of proportionality is observed, which is a matter for the referring court to assess.

In that regard, the principles and objectives of the rules on the television advertising limits laid down by the directives on the supply of audiovisual media services, are intended to establish a balanced protection, on the one hand, of the financial interests of television broadcasters and advertisers, and, on the other hand, of the interests of rights holders, namely writers and producers, in addition to consumers as television viewers. The balanced protection of those interests differs according to whether or not the broadcasters transmit their programmes for payment, since the former generate revenue from subscriptions taken out by viewers, whereas the latter do not benefit from such a direct source of financing and must finance themselves either by generating income from television advertising, or by other sources of financing. Moreover, the situation of viewers is objectively different owing to the fact that, contrary to subscribers of a free-to-air broadcaster, subscribers of a pay-TV broadcaster have a direct commercial relationship with their broadcaster and pay to enjoy television programmes.

Finally, as regards the freedom to provide services set out in Article 56 TFEU, the national rule at issue is capable of constituting a restriction of that freedom. However, the protection of consumers against abuses of advertising constitutes an overriding reason relating to the general interest which may justify restrictions on the freedom to provide services on condition that such restrictions must still be applied so as to ensure achievement of the aim pursued and not go beyond what is necessary for that purpose.

(see paras 18-20, 22, 24-26, operative part)

3.        See the text of the decision.

(see paras 30-33)