Facts

Broadcasters established in the United Kingdom and in Sweden broadcast programmes via satellite to Denmark, Sweden and Norway. In those programmes they have broadcast various forms of advertising prohibited by the Swedish Marketing Practices Law.

Case C-34/95 concerned advertising for a children's magazine on dinosaurs which is published in a series by the company De Agostini. Each issue contains a part of a model dinosaur which can be completed once all the issues in the series have been purchased. The Consumer Ombudsman has applied to the Marknadsdomstol (Market Court) for an order prohibiting marketing of the magazine or requiring De Agostini to indicate the number of magazines needed to complete the model. He has also asked the Marknadsdomstol to prohibit the making of any misleading statements.

Cases C-35/95 and C-36/95 concerned respectively Body de Lite skin-care products and Astonish detergents which were marketed in television spots and which customers could order by telephone. The Consumer Ombudsman asked the Marknadsdomstol in effect to prohibit TV-Shop from broadcasting misleading advertising.

Faced with those questions the Marknadsdomstol therefore asked the Court of Justice whether Article 30 (prohibiting quantitative restrictions on imports) or Article 59 (providing for free movement of services) of the EC Treaty or Directive 89/552/EEC (the "television without frontiers" directive) allow a Member State:

1. to prohibit television advertising broadcast from another Member State;
2. to prohibit television advertising designed to attract the attention of children less than 12 years of age (in the specific case of Case C-34/95).

Swedish Law

The Swedish Marketing Practices Law authorizes the Marknadsdomstol to prohibit advertising or any act which is contrary to good commercial practice or otherwise unfair towards consumers or other traders. The Court may also order a trader to provide in his advertising relevant information to the consumer. The Swedish Broadcasting Law provides that advertising must not be designed to attract the attention of children.

Assessment of the Court

A) Misleading advertising broadcast from another Member State

1. Directive 89/552/EEC is designed to coordinate the rules of the Member States on television broadcasting and eliminate obstacles to freedom of broadcasting resulting from disparities existing between the provisions of each Member State. It provides that broadcasts from a Member State intended for reception in another Member State must comply with the legislation of the originating Member State. The receiving Member State may not impose restrictions on grounds relating to the field coordinated by the Directive.

   The Directive lays down certain principles concerning advertising and its contents. It undertakes partial coordination which does not automatically exclude application of rules other than those specifically concerning broadcasting of programmes. Nothing therefore precludes a national rule protecting consumers, provided that it does not involve any secondary control. There is in fact another Community Directive, 84/450/EEC, which makes the Member States responsible for controlling misleading advertising in the interests of consumers and the public in general. The receiving Member State may not therefore be deprived of the possibility of taking measures against an advertiser in relation to such advertising, provided that those measures do not prevent the retransmission, as such, in its territory of television broadcasts coming from another Member State.

2. According to the case-law of the Court, prohibitions of television advertising concern in principle the selling arrangements for a product. It reiterates that national rules which restrict or prohibit certain selling arrangements are not covered by Article 30 of the Treaty if they apply to all traders and affect in the same manner, in law and in fact, the marketing of domestic products and foreign products.

   If, however, the national court were to find that the prohibition affects foreign products more seriously and is therefore caught by Article 30 of the Treaty, it would have to determine whether the prohibition is necessary to satisfy overriding requirements of general public importance or one of the aims mentioned in Article 36. In this regard, the Court refers to its case-law according to which fair trading and consumer protection are overriding requirements of general public importance which may justify obstacles to the free movement of goods.

3. It is well established that advertising broadcast for payment by a television broadcaster established in one Member State for an advertiser established in another Member State constitutes a provision of a service within the meaning of Article 59 of the Treaty. Consequently, where there are no harmonizing rules applicable in this field, the domestic rules in question involve a restriction on the freedom to provide services. The national court must therefore determine whether those provisions are necessary to satisfy overriding requirements of general public importance, whether they are proportionate for that purpose and whether less restrictive means could be used. Reference is made here to the case-law of the Court according to which fair trading and consumer protection are overriding requirements of general public importance which may justify obstacles to the freedom to provide services.

B) Advertising directed at children

The Directive does not preclude a domestic provision which lays down stricter rules for television broadcasters established in the territory of the same Member State. This consideration cannot apply to television broadcasters established in other Member States.

The Directive contains a complete set of provisions on the protection of minors in relation to television programmes in general and television advertising in particular. The receiving State may continue to apply its rules having the general purpose of protecting consumers and minors but it may not stop retransmission of a broadcast coming from another Member State or apply provisions having the specific purpose of controlling the content of television advertising directed at minors. This would add a secondary control to the control which the broadcasting State must exercise under the Directive.

This press release is an unofficial document solely for the use of the press and is not binding on the Court. For further information or for a copy of the judgment please contact Tom Kennedy, telephone (00 352) 4303-3355 or Gillian Byrne, telephone (00352) 4303-3366 or send a fax to 4303-2500.