Out-Law News 2 min. read
22 May 2013, 5:13 pm
In an opinion on a case that is before the Court of Justice of the European Union (CJEU), Advocate General Juliane Kokott said that EU laws do not place a general ban on member states enacting laws that place different advertising restrictions on pay-TV and free-to-air broadcasters. The opinion is non-binding on the CJEU, but the Court often follows the advice offered by Advocate Generals.
Kokott said, though, that member states cannot impose the different limits in order that free-to-air broadcasters can benefit from greater advertising revenues as to do so would interfere with the overriding principle of 'equal treatment' required by EU law. The principle of equal treatment requires comparable situations to be treated in the same way but different situations not to be treated the same unless objectively justified. Setting stricter provisions for pay-TV broadcasters would only be justified in Kokott's opinion if the rules were designed to offer consumers protection against "excessive television advertising".
"If the protection of consumers against excessive television advertising is the focus, different maximum transmission times for television advertising on pay TV and on free-to-air private TV are compatible with the principle of equal treatment," Kokott said. "If, on the other hand, the focus is the desire to ensure that private broadcasters receive greater advertising revenue and thus better financing, the principle of equal treatment prohibits provision being made for different maximum transmission times for television advertising on pay TV and on free-to-air private TV for that purpose."
Kokott was offering her opinion on a case referred to the CJEU from an Italian court, which has raised concerns about the compatibility of Italian advertising restrictions with EU law.
EU laws on television advertising and teleshopping, set out in the Audiovisual Media Services Directive (AMSD), prohibit "advertising spots and teleshopping spots" from making up more than a fifth of a TV channel's schedule "within a given clock hour".
Member states are free to apply stricter and more detailed rules under the terms of the Directive, provided that the measures they impose ensure free competition and equal treatment, are not detrimental to free trade and do not "promote the creation of dominant positions which would lead to restrictions on pluralism and freedom of televised information and of the information sector as a whole".
Under Italian laws free-to-air broadcasters and pay-TV broadcasters faced different constraints on the amount of adverts they could run during 2010, 2011 and 2012. The constraints meant that free-to-air broadcasters could show more adverts in an hour than pay-TV broadcasters.
Italian pay-TV broadcaster Sky Italia was fined for transmitting adverts for longer than was permitted, but it has challenged whether the Italian rules run contrary to EU laws.
The Italian court has said that there are two possible reasons why the Italian laws set different advertising limits for pay-TV broadcasters than those that apply to free-to-air channels. It said that the laws could either be said to have been designed to protect viewers from "excessive advertising" or to deliberately provide "more favourable treatment of free-to-air private TV broadcasters compared with pay-TV broadcasters".
Kokott also said that "If ... a national legislature intends to ensure that free-to-air broadcasters receive greater advertising revenue, this idea runs counter to the fundamental aims of [the Audiovisual Media Services Directive], which seeks to help to ensure free competition and equal treatment between broadcasters and to create a level playing-field between broadcasters".
"It is incompatible with these aims laid down by EU law to accord favourable treatment, without an objective reason, to a certain group of broadcasters compared with other broadcasters in respect of their financing from television advertising", she added.