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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Bacardi France (anciennement Bacardi-Martini) (Freedom to provide services) [2004] EUECJ C-429/02 (13 July 2004) URL: https://www.bailii.org/eu/cases/EUECJ/2004/C42902.html Cite as: [2004] ECR I-6613, [2004] EUECJ C-429/02, [2004] EUECJ C-429/2 |
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JUDGMENT OF THE COURT (Grand Chamber)
13 July 2004 (1)
(Article 59 of the EC Treaty (now, after amendment, Article 49 EC) - Directive 89/552/CEE - Television without frontiers - Television broadcasting - Advertising - National measure prohibiting television advertising for alcoholic drinks marketed in that Member State, in the case of indirect television advertising arising from the appearance on screen of hoardings visible during the transmission of sporting events - -Loi Evin- )
In Case C-429/02,REFERENCE to the Court under Article 234 EC by the Cour de Cassation (France) for a preliminary ruling in the proceedings pending before that court between Bacardi France SAS, formerly Bacardi-Martini SAS,and
Télévision française 1 SA (TF1), Groupe Jean-Claude Darmon SA,Girosport SARL, on the interpretation of Council Directive 89/552/CEE of 3 October 1989 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities (OJ 1989 L 298, p. 23) and Article 59 of the EC Treaty (now, after amendment, Article 49 EC),THE COURT (Grand Chamber),
having regard to the written observations submitted on behalf of:
- Bacardi France SAS, by C. Niedzielski and J.-'M. Cot, avocats, - Télévision française 1 SA (TF1), by L. Bousquet and O. Sprung, avocats, - the French Government, by G. de Bergues and R. Loosli-Surrans, acting as Agents, - the United Kingdom Government, by K. Manji, acting as Agent, and K. Beal, Barrister, - the Commission of the European Communities, by H. van Lier, acting as Agent,having regard to the Report for the Hearing,
after hearing the oral observations of Bacardi France SAS, represented by J.-M. Cot, of the French Government, represented by G. de Bergues and R. Loosli-Surrans, of the United Kingdom Government, represented by K. Manji, and of the Commission, represented by H. van Lier and W. Wils, acting as Agent, at the hearing on 25 November 2003,
after hearing the Opinion of the Advocate General at the sitting on 11 March 2004,
gives the following
Definitions
Substantive rules
-Member States shall ensure freedom of reception and shall not restrict retransmission on their territory of television broadcasts from other Member States for reasons which fall within the fields coordinated by this directive.-
-Television advertising shall be readily recognisable as such and kept quite separate from other parts of the programme service by optical and/or acoustic means.-
-In programmes consisting of autonomous parts, or in sports programmes and similarly structured events and performances comprising intervals, advertisements shall only be inserted between the parts or in the intervals.- National legislationSubstantive rules
Procedural rules
Implementing measures
-1. [Does] Directive 89/552/EEC of 3 October 1989 (-Television without frontiers-), in the version prior to that of Directive 97/36/EC of 30 June 1997, [preclude] national legislation, such as Articles L.17 to L.21 of the French Code des débits de boissons and Article 8 of Decree No 92-280 of 27 March 1992, which prohibits, for reasons relating to the protection of public health and on pain of criminal penalties, advertising for alcoholic drinks, whether of national origin or from other Member States of the Union, on television, whether in the form of advertising spots within the meaning of Article 10 of the directive [direct advertising] or of indirect advertising as a result of hoardings advertising alcoholic drinks appearing on television without constituting surreptitious advertising within the meaning of Article 1(c) of the directive [?] 2. [Are] Article 49 EC and the principle of the free movement of television broadcasts within the Union to be interpreted as precluding a national provision such as that in Articles L.17 to L.21 of the French Code des débits de boissons and Article 8 of Decree No 92-280 of 27 March 1992 which prohibits, for reasons relating to the protection of public health and on pain of criminal penalties, advertising for alcoholic drinks, whether of national origin or from other Member States of the Union, on television, whether in the form of advertising spots within the meaning of Article 10 of the directive [direct advertising] or of indirect advertising as a result of hoardings advertising alcoholic drinks appearing on television without constituting surreptitious advertising within the meaning of Article 1(c) of the directive, from having the effect that operators responsible for the broadcasting and distribution of television programmes: (a) refrain from broadcasting television programmes, such as in particular retransmissions of sporting events, whether held in France or in other countries of the Union, where they show prohibited advertisements within the meaning of the French Code des débits de boissons, or (b) broadcast them on condition that prohibited advertisements within the meaning of the French Code des débits de boissons do not appear, thereby preventing the conclusion of advertising contracts concerning alcoholic drinks whether of national origin or from other Member States of the Union [?]-
In that context, the national court wishes to know whether such indirect television advertising must be classified as -television advertising- within the meaning of Articles 1(b), 10 and 11 of the directive.
That kind of indirect television advertising is not to be classed as -television advertising- within the meaning of Articles 1(b), 10 and 11 of the directive. Second question: freedom to provide services
On those grounds,
THE COURT (Grand Chamber),
in answer to the questions referred to it by the Cour de cassation by judgment of 19 November 2002, hereby rules: 1. The first sentence of Article 2(2) of Council Directive 89/552/EEC of 3 October 1989 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities does not preclude a Member State from prohibiting television advertising for alcoholic beverages marketed in that State, in the case of indirect television advertising resulting from the appearance on screen of hoardings visible during the retransmission of bi-national sporting events taking place in the territory of other Member States. That kind of indirect television advertising is not to be classed as -television advertising- within the meaning of Articles 1(b), 10 and 11 of the directive. 2. Article 59 of the EC Treaty (now, after amendment, Article 49 EC) does not preclude a Member State from prohibiting television advertising for alcoholic beverages marketed in that State, in the case of indirect television advertising resulting from the appearance on screen of hoardings visible during the retransmission of bi-national sporting events taking place in other Member States.
Skouris |
Jann |
Rosas |
Gulmann |
Puissochet |
Cunha Rodrigues |
Schintgen |
von Bahr |
Silva de Lapuerta |
R. Grass |
V. Skouris |
Registrar |
President |
1 - Language of the case: French.