Advocate General Jacobs recommends that the Court should hold that in calculating the period of time for the purpose of determining permissible interruptions by advertisements in the transmission of films on television, Member States may (but are not obliged to) allow the duration of the advertisements to be included in that period.
The ARD are eleven public law broadcasting institutions of the German Länder. Under German law, television broadcasting falls within the competence of the Länder. Those institutions are collectively responsible for the ARD television channel. PRO Sieben Media AG ("Pro Sieben") is a private television broadcaster.
Under the Community rules on television advertising, the number of interruptions by advertisements of films shown on television is to be calculated by reference to a period referred to as the "scheduled duration". Audiovisual works such as feature films and films made for television may be interrupted once for each period of 45 minutes, provided their scheduled duration is more than 45 minutes.
There are two principles according to which this number of interruptions can be calculated. Firstly, according to the "gross" principle, the duration of the advertisements is to be included in the duration of time according to which the permissible number of interruptions is calculated. According to the "net" principle, the duration relates only to the length of the film itself. The practical significance of that distinction is that application of the gross principle may permit a greater number of interruptions than would be allowed by the net principle.
In October 1996, Pro Sieben was ordered by the Landgericht (Regional Court), Stuttgart not to interrupt films more frequently than would be permitted by application of the net principle. Following an appeal, the Oberlandesgericht (Higher Regional Court) asked the Court of Justice for a preliminary ruling in particular on the question whether the Community rules should be interpreted according to the gross principle or the net principle.
The Advocate General, acting with complete independence and impartiality, assists the Court by analysing the circumstances and the legal issues arising in the case and makes a recommendation to the Court on the answers which, in his view, it should give to the questions submitted by the national court or tribunal. His Opinion is not binding on the Court.
The Advocate General considers that where Community legislation is open to two different interpretations, it would be wrong to adopt the more restrictive interpretation. He concludes that this principle is particularly important as the activity in question concerns the fundamental freedom to provide services (guaranteed by the community rules) and the freedom of expression (guaranteed by the European Convention of Human Rights). He adds that this consideration of principle is reinforced in the present case by the fact that the Community legislation is intended to lay down minimum standards only.
Consequently, the Advocate General recommends that the Community rules should be interpreted according to the less restrictive "gross" principle. In other words, in calculating the period of 45 minutes for the purpose of determining permissible interruptions by advertisements in the transmission of films on television, the duration of the advertisements should be included in that period. Furthermore, these interruptions should only be permissible provided that the integrity and value of the work are respected and those holding rights in the work are not prejudiced.
However, the Advocate General concludes that Member States are free under Community law to provide with regard to broadcasters under their own jurisdiction for the stricter net principle, in other words that the duration of the advertisements should be excluded when calculating the relevant period.
There will now be a subsequent undetermined period of deliberation by the judges of the Court of Justice (in which the Advocate General takes no part) before a judgment is delivered.
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