- Advertising hits the screens of most European televisions at fairly regular intervals. This television advertising, which is generally regarded by viewers as an annoying interruption to the programme, has long since been an economic factor which should not be underestimated and represents an important source of revenue for broadcasters. It is not therefore surprising that it repeatedly gives rise to legal disputes.
- In order to provide proper protection for the interests of viewers and to create as level a playing-field as possible for all broadcasters established within Europe, EU law prescribes a maximum transmission time of 20% of a given hour for television advertising. That provision is contained in the Audiovisual Media Services Directive (Directive 2010/13/EU (2)), which replaced the old ‘Television Without Frontiers’ Directive (Directive 89/552/EEC). (3)
- Stricter national rules on television advertising are permitted within the limits set by EU law. Italy availed itself of this possibility by imposing different maximum transmission times for television advertising on pay-TV broadcasters and free-to-air broadcasters. Thus, in 2011 a maximum of 14% of a given hour could be devoted to advertising on Italian pay TV, whilst that figure was 18% on free-to-air private TV.
- 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.
- Articles 49 TFEU and 63(1) TFEU do not preclude such a rule.