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Greece/ Council of State/ 65/2019

Limited company titled “…” v. Greek National Council for Radio and Television

Deciding Body type:
National Court/Tribunal
Deciding Body:
Council of State
Type:
Decision
Decision date:
24/09/2019

Key facts of the case:

The case concerns a petition lodged before the Council of State for the annulment of a Decision by the Greek National Council for Radio and Television (henceforth, NCRT) that imposed the administrative sanction of ‘Recommendation’ to the petitioner – a limited company that owns the tv station concerned. The Recommendation was that the company should not broadcast ads which may encourage behaviours that are obviously detrimental to public health and safety or that foster harmful attitudes towards the environment. On 15.3.2015, at 22:56 h the petitioner broadcasted an advertisement of 30 seconds duration. The NCRT ruled that the advertisement encouraged behaviours harmful to health and safety, as it essentially linked alcohol consumption to the destruction of works of art and other valuables, and, at the same time, presented those consuming the advertised alcoholic beverage as considering the arson, taking place in the room they were in, as absolutely normal and even enjoying it while carelessly having their drink. Therefore, the ads’ message to the audience is that consuming the drink in question renders otherwise dangerous and harmful behaviours safe and socially acceptable, thus encouraging the public to consume it in order to have a unique experience that legitimizes even actions that go beyond what is generally considered as safe and socially acceptable behaviour. The Recommendation issued noted that if the petitioner would not comply, the NCRT would impose stricter sanctions. The petitioner argued that that the contested Recommendation must be annulled on grounds of the NCRT’s unlawful establishment due to the fact that one of its members’ term in office, which should have already expired, had been unlawfully extended beyond a reasonable amount of time. This argument was put forth during oral arguments before the court, as well in written submissions following the case hearing. The court ruled that the allegation concerning the NCRT’s unlawful establishment was inadmissible as it was not included in the original petition for annulment nor in the submission of additional grounds, but was first raised in the oral arguments and subsequently in the aforementioned written submissions. Furthermore, the court found that this is an issue that requires an examination of facts and, thus, dismissed the petitioner’s argument that it should be examined ex officio.

Key legal question:

The key legal question brought forward for the Court’s consideration by the applicant was whether the sanction imposed contravenes Articles 10 of the ECHR and 5 (1), 14 (1),16 (1) and 101 A of the Constitution or other superior legal norms, as considered in the national legal system, namely Articles 11 (1) and (16) of the Charter of Fundamental Rights of the European Union and 19 par. 2 of the International Covenant on Civil and Political Rights.

Outcome of the case:

The petition was dismissed as unfounded. The court found the contested act to be fully reasoned, since the advertisement did in fact portray arson in an attractive manner, as elaborated in the previous section, thus glorifying a behaviour prescribed in the Criminal Code. It did so by linking the consumption of whiskey with the above criminal offense (arson) and minimizing the severity of this crime and the risks it may pose to health and safety. Against this background, the Recommendation issued, i.e. that the applicant not display ads that may encourage behaviours that are obviously detrimental to health or safety or that foster harmful attitudes towards the environment, is not contrary to Article 10 of the European Convention on Human Rights and to articles 5 par. 1, 14 par.1 and 16 par. 1 of the Greek Constitution, since Article 10 ECHR allows for restrictions and sanctions to be introduced, inter alia, for the prevention of crime and the protection of health. For the same reasons, the court dismissed the violation of other superior legal norms invoked by the petitioner (Articles 11 (1) and (16) of the Charter of Fundamental Rights of the European Union and 19 par. 2 of 16.12.1966 International Covenant on Civil and Political Rights ratified by the first article of Law 2462/1997) as legal grounds for annulment.