Article 11 - Freedom of expression and information
Article 20 - Equality before the law
Key facts of the case:
Request for a preliminary ruling from the Landgericht Stuttgart. Reference for a preliminary ruling – Directive 2010/13/EU – Provision of audiovisual media services – Article 4(1) – Freedom to provide services – Equal treatment – Article 56 TFEU – Articles 11 and 20 of the Charter of Fundamental Rights of the European Union – Audiovisual commercial communication – National legislation prohibiting television broadcasters from inserting in their programmes broadcast throughout the national territory television advertisements whose broadcasting is limited to a regional level.
Outcome of the case:
On those grounds, the Court (Third 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 (‘the Audiovisual Media Services Directive’) and Article 11 of the Charter of Fundamental Rights of the European Union must be interpreted as not precluding national legislation which prohibits television broadcasters from inserting in their programmes broadcast throughout the national territory television advertising whose broadcasting is limited to a regional level;
Article 56 TFEU must be interpreted as not precluding such national legislation, provided that it is suitable for securing the attainment of the objective of protecting media pluralism at regional and local level which it pursues and does not go beyond what is necessary to attain that objective, which it is for the referring court to ascertain;
Article 20 of the Charter of Fundamental Rights must be interpreted as not precluding such national legislation, provided that it does not give rise to unequal treatment between national television broadcasters and internet advertising providers as regards the broadcasting of advertising at regional level, which it is for the referring court to ascertain.
1) This request for a preliminary ruling concerns the interpretation of Article 56 TFEU, Article 11 of the Charter of Fundamental Rights of the European Union (‘the Charter’), the general principle of equal treatment and 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).
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18) The referring court considers, in the second place, that Paragraph 7(11) of the RStV may constitute an unlawful interference with the freedom to hold opinions and to receive or impart information, as guaranteed by Article 11 of the Charter and Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (‘the ECHR’).
20) Under those circumstances, the Landgericht Stuttgart (Regional Court, Stuttgart) decided to stay its proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
33) By its four questions, which must be examined together, the referring court asks, in substance, whether Article 4(1) of Directive 2010/13, the principle of equal treatment, Article 56 TFEU and Article 11 of the Charter must be interpreted as precluding national legislation which prohibits television broadcasters from inserting in their programmes broadcast throughout the national territory television advertisements whose transmission is limited to a regional level.
55) Likewise, the Court has held that the safeguarding of the freedoms protected under Article 11 of the Charter, which in paragraph 2 thereof refers to the freedom and pluralism of the media, unquestionably constitutes a legitimate aim in the general interest, the importance of which in a democratic and pluralistic society must be stressed in particular, capable of justifying a restriction on freedom of establishment (judgment of 3 September 2020, Vivendi, C‑719/18, EU:C:2020:627, paragraph 57 and the case-law cited).
80) As regards, in the third and last place, the question whether the prohibition established by Paragraph 7(11) of the RStV may be regarded as undermining the freedom to broadcast as guaranteed by Article 11 of the Charter, or as being contrary to the principle of equal treatment, it should be noted, as a preliminary point, that, having regard to the Court’s settled case-law, once it has been established in the context of the examination under Article 56 TFEU that such regulation is liable to impede the freedom to provide services which the Member State concerned considers to be justified by an overriding reason in the public interest, in this case the objective of preserving media pluralism, the said legislation must be regarded as implementing Union law within the meaning of Article 51(1) of the Charter, so that it must comply with the fundamental rights guaranteed by the Charter (see, to that effect, judgment of 21 May 2019, Commission v Hungary (Usufruct over agricultural land), C‑235/17, EU:C:2019:432, paragraphs 63 to 65).
81) With regard to freedom of expression and information, enshrined in Article 11 of the Charter, it should be recalled that that freedom is also protected under Article 10 ECHR, which applies, in particular, as is clear from the case-law of the European Court of Human Rights, to the dissemination by a business of commercial information, including in the form of advertising (judgment of 17 December 2015, Neptune Distribution, C‑157/14, EU:C:2015:823, paragraph 64 and the case-law cited).
82) Since freedom of expression and information, enshrined in Article 11 of the Charter and Article 10 ECHR, have the same meaning and scope in each of those two instruments, as is apparent from Article 52(3) of the Charter and the explanations relating thereto in respect of Article 11 thereof, it must be held that the national measure at issue in the main proceedings, in so far as it limits the possibilities for national television broadcasters to broadcast regional television advertising for the benefit of the advertisers concerned, constitutes an infringement, on the part of those operators, of that fundamental freedom (see, to that effect, judgments of 26 June 1997, Familiapress, C‑368/95, EU:C:1997:325, paragraph 26; of 23 October 2003, RTL Television, C‑245/01, EU:C:2003:580, paragraph 68, and of 17 December 2015, Neptune Distribution, C‑157/14, EU:C:2015:823, paragraphs 64 and 65).
83) With regard to national broadcasters, interference with freedom of expression and information takes the particular form of interference with freedom of the media or freedom of broadcasting, specifically protected by Article 11(2) of the Charter.
84) While the freedoms guaranteed by the Charter may be limited, any limitation on their exercise must, in accordance with Article 52(1) of the Charter, be provided for by law and respect the essential content of those freedoms. Moreover, as is clear from that provision, in accordance with the principle of proportionality, limitations may be made only if they are necessary and actually meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others (judgment of 17 December 2015, Neptune Distribution, C‑157/14, EU:C:2015:823, paragraph 68).
90) That objective, in so far as it concerns the protection of media pluralism at regional and local level, constitutes an objective of general interest, as already noted in paragraph 55 of the present judgment, expressly recognised in Article 11(2) of the Charter.
94) It follows from the foregoing considerations that Article 11 of the Charter must be interpreted as not precluding a measure prohibiting regional advertising on national television channels, such as that contained in Paragraph 7(11) of the RStV.
95) As regards the conformity of national legislation, such as Paragraph 7(11) of the RStV, with the principle of equal treatment, it should be recalled that that general principle of Union law is enshrined in Article 20 of the Charter. According to the Court’s settled case-law, that general principle 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. A difference in treatment is justified if it is based on an objective and reasonable criterion, that is, if the difference relates to a legally permitted aim pursued by the legislation in question, and it is proportionate to the aim pursued by the treatment concerned (judgment of 22 May 2014, Glatzel, C‑356/12, EU:C:2014:350, paragraph 43 and the case-law cited).
In the light of all the foregoing considerations, the answer to the questions referred is as follows: