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CJEU Case C-234/12 / Opinion

Sky Italia Srl v Autorità per le Garanzie nelle Comunicazioni

Policy area:
Audiovisual and media
Deciding Body type:
Court of Justice of the European Union
Deciding Body:
Advocate General
Type:
Opinion
Decision date:
16/05/2013
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:

In the light of the foregoing considerations, I suggest that the Court answer the questions referred for a preliminary ruling by the Tribunale amministrativo regionale per il Lazio as follows:

(1) 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.

(2) Articles 49 TFEU and 63(1) TFEU do not preclude such a rule.