Avis juridique important

Judgment of the Court (Sixth Chamber) of 9 February 1995. - Société d'Importation Edouard Leclerc-Siplec v TF1 Publicité SA and M6 Publicité SA. - Reference for a preliminary ruling: Tribunal de commerce de Paris - France. - Televised advertising - Free movement of goods and services. - Case C-412/93. European Court reports 1995 Page I-00179

Summary Parties Grounds Decision on costs Operative part

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1. Preliminary rulings ° Jurisdiction of the Court ° Limits ° General or hypothetical questions ° Determination by the Court as to whether it has jurisdiction ° Circumstances of the main proceedings ° Concept

(EEC Treaty, Art. 177)

2. Free movement of goods ° Quantitative restrictions ° Measures having equivalent effect ° Concept ° Obstacles imposed by national provisions governing selling arrangements in a non-discriminatory manner ° Article 30 of the Treaty not applicable ° Rules prohibiting televised advertising in the distribution sector ° Treaty provisions relating to competition ° Not applicable

(EEC Treaty, Arts 3(f), 5, 30, 85 and 86)

3. Freedom to provide services ° Television broadcasting ° Directive 89/552 ° Freedom for Member States to derogate from the rules on advertising ° Scope ° Rules prohibiting televised advertising in the distribution sector ° Permissible

(Council Directive 89/552, Art. 3(1))

1. In the context of the procedure under Article 177 of the Treaty, the national court, which alone has direct knowledge of the facts of the case, is in the best position to appreciate, with full knowledge of the matter before it, the necessity for a preliminary ruling to enable it to give judgment. Consequently, where the questions put by national courts concern the interpretation of a provision of Community law, the Court is, in principle, bound to give a ruling.

It is none the less necessary for the Court, in order to determine whether it has jurisdiction, to examine the conditions in which the case has been referred to it. The spirit of cooperation which must prevail in preliminary ruling proceedings requires the national court to have regard to the function entrusted to the Court of Justice, which is to contribute to the administration of justice in the Member States and not to give opinions on general or hypothetical questions.

The fact that the parties are in agreement as to the result to be obtained does not affect the reality of a dispute in the main proceedings concerning the compatibility with Community law of one party' s refusal, based on a provision of national law, to comply with a request made by the other party.

2. The application to products from other Member States of national provisions restricting or prohibiting certain selling arrangements is not such as to hinder directly or indirectly, actually or potentially, trade between Member States so long as those provisions apply to all relevant traders operating within the national territory and so long as they affect in the same manner, in law and in fact, the marketing of domestic products and of those from other Member States. Provided that those conditions are fulfilled, the application of such rules to the sale of products from another Member State meeting the requirements laid down by that State is not by nature such as to prevent their access to the market or to impede access any more than it impedes the access of domestic products. Such rules therefore fall outside the scope of Article 30 of the Treaty.

It follows that on a proper construction Article 30 of the Treaty does not apply where a Member State, by statute or by regulation, prohibits the broadcasting of televised advertisements for the distribution sector. Such a measure concerns selling arrangements since it prohibits a particular form of promotion of a particular method of marketing products and, since it applies regardless of the type of product to all traders in the distribution sector, affects the marketing of products from other Member States and that of domestic products in the same manner.

Articles 85 and 86 in conjunction with Articles 3(f) and 5 of the Treaty are not applicable to such a measure.

3. Directive 89/552, whose purpose is to ensure freedom to provide television broadcasting services conforming to the minimum rules it lays down and which to that end requires Member States from which broadcasts are made to ensure compliance with its provisions and Member States receiving broadcasts to ensure freedom of reception and retransmission, provides in Article 3(1) that Member States are to remain free, as regards broadcasters under their jurisdiction, to lay down more detailed or stricter rules in the areas covered by the directive. That freedom, which is conferred by a general provision of the directive and the exercise of which is not such as to jeopardize the freedom to provide broadcasting services conforming to its minimum rules which the directive seeks to ensure, is not restricted, in relation to advertising, to the circumstances set out in Articles 19 and 20.

For that reason, on a proper construction the directive does not preclude Member States from prohibiting, by statute or by regulation, the broadcasting of advertisements for the distribution sector by television broadcasters established on their territory.

In Case C-412/93,

REFERENCE to the Court under Article 177 of the EEC Treaty by the Tribunal de Commerce de Paris for a preliminary ruling in the proceedings pending before that court between

Société d' Importation Édouard Leclerc-Siplec

and

1) TF1 Publicité SA,

2) M6 Publicité SA,

on the interpretation of Articles 30, 85, 86, 5 and 3(f) of the EEC Treaty and 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 (OJ 1989 L 298, p. 23),

THE COURT (Sixth Chamber),

composed of: F.A. Schockweiler, President of the Chamber, P.J.G. Kapteyn (Rapporteur), G.F. Mancini, C.N. Kakouris and J.L. Murray, Judges,

Advocate General: F.G. Jacobs,

Registrar: H. von Holstein, Deputy Registrar,

after considering the written observations submitted on behalf of:

° Leclerc-Siplec, by Bruno Cavalié, of the Paris Bar,

° TF1 Publicité, by Louis Bosquet, of the Paris Bar,

° M6 Publicité, by Pierre Deprez and Philippe Dian, of the Paris Bar,

° the French Government, by Jean-Louis Falconi, Foreign Affairs Secretary in the Legal Affairs Directorate in the Ministry of Foreign Affairs, and Catherine de Salins, Deputy Director in the same Directorate, acting as Agents,

° the Commission of the European Communities, by Richard Wainwright, Principal Legal Adviser, acting as Agent, assisted by Hervé Lehman, of the Paris Bar,

having regard to the Report for the Hearing,

after hearing the oral observations of Leclerc-Siplec, represented by Bruno Cavalié, TF1 Publicité, represented by Olivier Sprung, of the Paris Bar, M6 Publicité, represented by Didier Théophile, of the Paris Bar, the French Government, represented by Jean-Louis Falconi, and the Commission, represented by Richard Wainwright, assisted by Hervé Lehman, at the hearing on 7 July 1994,

after hearing the Opinion of the Advocate General at the sitting on 24 November 1994,

gives the following

Judgment

1 By judgment of 27 September 1993, received at the Court on 4 October 1993, the Tribunal de Commerce de Paris (Commercial Court, Paris) referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty a question on the interpretation of Articles 30, 85, 86, 5 and 3(f) of the EEC Treaty and 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 (OJ 1989 L 298, p. 23; hereinafter "the Directive").

2 That question was raised in proceedings brought by the import company Édouard Leclerc-Siplec (hereinafter "Leclerc-Siplec") against TF1 Publicité (hereinafter "TF1") and M6 Publicité (hereinafter "M6") concerning the latter companies' refusal to broadcast an advertisement concerning the distribution of fuel in Leclerc supermarkets on the ground that Article 8 of Decree No 92-280 of 27 March 1992, implementing Article 27(1) of the Law of 30 September 1986 on freedom of communication and setting general principles for advertising and sponsorship (JORF of 28 March 1992, p. 4313, hereinafter "the Decree"), excludes the distribution sector from televised advertising.

3 Leclerc-Siplec, after bringing proceedings against TF1 and M6 before the Commercial Court of Paris and being of the view that Article 8 of the Decree was contrary to several provisions of the Treaty and the Directive, proposed that the court refer that question to the Court of Justice. TF1 and M6, although defendants, were in complete agreement with Leclerc-Siplec. In addition, TF1 stated that the ruling by the Court of Justice should be couched in general terms and relate not only to distribution but to all the sectors excluded from airtime by the Decree.

4 The national court, noting that TF1' s and M6' s understanding that the advertisement in question was caught by the prohibition in Article 8 of the Decree was confirmed by various bodies which had been consulted, including the State Secretariat for Communication, the Conseil Supérieur de l' Audiovisuel (Higher Council for the Audio-visual Sector; hereinafter "CSA") and the Bureau de Vérification de la Publicité (Office for the Control of Advertising), stayed the proceedings and requested the Court of Justice to give a preliminary ruling

"on the question whether Articles 30, 85, 86, 5 and 3(f) of the Treaty and Directive 89/552/EEC of 3 October 1989 are to be interpreted as prohibiting Member States from banning, by statute or by regulation, televised advertising in respect of certain sectors of economic activity, in particular the distribution sector, and more generally whether Article 8 of the Decree of 27 March 1992 may be considered compatible with the aforesaid provisions."

5 Article 8 of the Decree prohibits "the advertising of, first, goods the televised advertising of which is prohibited by statute and, second, the following goods and economic sectors:

° drinks with an alcohol content of more than 1.2o;

° literary publications;

° the cinema;

° the press;

° distribution, except in the overseas departments and territories and the territorial collectivities of Mayotte and Saint-Pierre-et-Miquelon."

6 Article 21 of the Decree provides that the CSA is to monitor compliance with those provisions.

7 There are decisions of the CSA to the effect that advertising by "manufacturers/ distributors", who are not subject to the prohibition on televised advertising for the distribution sector, may not refer to the outlets where goods are distributed.

The Court' s jurisdiction

13 It is in the light of that function that the Court has considered that it has no jurisdiction to give a preliminary ruling on a question raised before a national court where the interpretation of Community law has no connection whatever with the circumstances or purpose of the main proceedings.

16 It follows from the foregoing that the question referred must be answered in so far as it concerns the exclusion of the distribution sector from televised advertising.

The interpretation of the provisions referred to in the question

17 The question referred, thus circumscribed, is restricted to the issue whether on a proper construction Article 30 of the Treaty, Articles 85 and 86 in conjunction with Articles 5 and 3(f) of the Treaty and the Directive preclude a Member State from prohibiting, by statute or by regulation, the broadcasting of advertisements for the distribution sector by broadcasters established in its territory.

Article 30 of the Treaty

19 A law or regulation such as that at issue in the main proceedings, which prohibits televised advertising in the distribution sector, is not designed to regulate trade in goods between Member States. Moreover, such a prohibition does not prevent distributors from using other forms of advertising.

20 Such a prohibition may, admittedly, restrict the volume of sales, and hence the volume of sales of products from other Member States, in so far as it deprives distributors of a particular form of advertising their goods. But the question remains whether such a possibility is sufficient to characterize the prohibition in question as a measure having equivalent effect to a quantitative restriction on imports within the meaning of Article 30 of the Treaty.

Articles 85 and 86 in conjunction with Articles 3(f) and 5 of the Treaty

25 Articles 85 and 86 of the Treaty per se are concerned only with the conduct of undertakings and not with national legislation. The Court has consistently held, however, that Articles 85 and 86 of the Treaty, in conjunction with Article 5, require the Member States not to introduce or maintain in force measures, even of a legislative nature, which may render ineffective the competition rules applicable to undertakings. Such would be the case, the Court has held, if a Member State were to require or favour the adoption of agreements, decisions or concerted practices contrary to Article 85 or to reinforce their effects, or to deprive its own legislation of its official character by delegating to private traders responsibility for taking decisions affecting the economic sphere (see the judgment in Case 267/86 Van Eycke v ASPA [1988] ECR 4769, paragraph 16, and, most recently, the judgment in Joined Cases C-401 and 402/92 Tankstation 't Heukske and Boermans [1994] ECR I-2199, paragraph 16).

26 In this case, there is nothing in the documents before the Court to suggest that the national provisions at issue require or favour anti-competitive conduct or reinforce the effects of a pre-existing agreement.

27 The reply should accordingly be that Articles 85 and 86 in conjunction with Articles 3(f) and 5 of the Treaty are not applicable to such national provisions.

Directive 89/552

30 To attain that objective, Chapter II of the Directive, devoted to general provisions, requires Member States from which broadcasts are made to ensure that television broadcasters under their jurisdiction comply with the provisions of the Directive (Article 3(2)) and Member States receiving broadcasts to ensure freedom of reception and not to restrict retransmission on their territory of television broadcasts from other Member States for reasons which fall within the fields coordinated by the Directive, although they may provisionally suspend broadcasts in certain specified cases (Article 2(2)).

31 Article 3(1), which is in the same chapter, provides that Member States are to remain free, as regards television broadcasters under their jurisdiction, to lay down more detailed or stricter rules in the areas covered by the Directive.

32 The fields coordinated by the Directive include the minimum provisions governing the Member States from which broadcasts are made relating to televised advertising, which are contained in Chapter IV.

33 Two articles in Chapter IV permit Member States from which broadcasts are made to derogate from some of its provisions concerning the conditions in which advertisements may be broadcast.

34 First, Article 19 permits them to lay down stricter rules than those in Article 18 for programming time and the procedures for television broadcasting for television broadcasters under their jurisdiction.

35 Second, Article 20, without prejudice to Article 3, permits them, with due regard for Community law, to lay down conditions other than those laid down in Article 11(2) to (5) and Article 18 in respect of broadcasts intended solely for the national territory which may not be received, directly or indirectly, in one or more other Member States.

36 It is common ground that neither Article 19 nor Article 20 can be the basis for a prohibition by a Member State of televised advertising in the distribution sector.

45 As for the purpose of Article 3(1) of the Directive, TF1 and M6 have argued that the twenty-seventh recital in the preamble means that the interests of consumers alone can justify stricter rules and that, in excluding distribution from televised advertising because of certain economic interests, the Decree goes beyond the Directive.

46 That argument cannot be accepted.

47 Although it appears to follow from that recital, such an interpretation is not supported by the wording of Article 3(1), which contains no restriction whatever as to the interests which the Member States may take into consideration. In any event, that recital does not preclude the justification of such restrictions by the protection of interests other than those of consumers.

48 In the light of all those considerations, the reply to the question referred should be that on a proper construction Articles 30, 85, 86, 5 and 3(f) of the Treaty and Directive 89/552 do not preclude Member States from prohibiting, by statute or by regulation, the broadcasting of advertisements for the distribution sector by television broadcasters established on their territory.

Costs

49 The costs incurred by the French Government and the Commission of the European Communities, which have submitted observations to the Court, are not recoverable. Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court.

On those grounds,

THE COURT (Sixth Chamber),

in answer to the question referred to it by the Tribunal de Commerce de Paris by judgment of 27 September 1993, hereby rules:

On a proper construction Articles 30, 85, 86, 5 and 3(f) of the Treaty and 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 do not preclude Member States from prohibiting, by statute or by regulation, the broadcasting of advertisements for the distribution sector by television broadcasters established on their territory.