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:
On those grounds, the Court (Second Chamber) hereby rules:
Article 4(1) of Directive 2010/13/EU of the European Parliament and of the Council of 10 March 2010 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services (Audiovisual Media Services Directive), as well as the principle of equal treatment and Article 56 TFEU must be interpreted as not precluding, in principle, a national rule, such as that at issue in the main proceedings, 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.
1) This request for a preliminary ruling concerns the interpretation of Article 4(1) of Directive 2010/13/EU of the European Parliament and of the Council of 10 March 2010 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services (‘Audiovisual Media Services Directive’) (OJ 2010 L 95, p. 1, and corrigendum OJ 2010 L 263, p. 15), of the general principle of equal treatment, of Articles 49 TFEU, 56 TFEU and 63 TFEU and of Article 11 of the Charter of Fundamental Rights of the European Union (‘the Charter’).
10) Since it entertained doubts as to the compatibility of that national provision with European Union law, the Tribunale amministrativo regionale per il Lazio decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
‘(1) Must Article 4 of Directive [2010/13], the general principle of equality and the rules of the [FEU Treaty] 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 those set for free-to-air broadcasters?
(2) Does Article 11 of the [Charter], interpreted in the light of Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms[, signed in Rome on 4 November 1950,] 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?’
15) In that regard, the Court has already held that the principle of equal treatment is a general principle of European Union law, enshrined in Articles 20 and 21 of the Charter, which requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified (see, inter alia, Case C-550/07 P Akzo Nobel Chemicals and Akcros Chemicals v Commission and Others  ECR I-8301, paragraphs 54 and 55 and the case-law cited).
27) By its second question the referring court asks, in essence, whether Article 11 of the Charter precludes a national rule such as that at issue in the main proceedings.
28) In that context, the referring court asks whether the national rule relating to transmission times for television advertising is such as to infringe the fundamental principle of the freedom of expression and, in particular, the freedom and pluralism of the media within the meaning of Article 11(2) of the Charter, having regard to the distortions of competition between television broadcasters which that national rule may cause.