Brussels, 11/04/2011 (Agence Europe) - In an opinion in Case C-281/09 delivered on 7 April, Advocate General Yves Bot recommends that the Court of Justice of the EU should consider the action by the Commission to be well-founded and to find that Spain made itself guilty of “flagrant, repeated and serious breaches” of the “television without frontiers” directive (89/552/EEC) by tolerating systematic over-running of the length of time of advertising messages.
The above-mentioned directive sets limits on the duration of the broadcast of advertising messages, depending on whether these messages are “advertising spots” or “other forms of advertising”. The broadcast time for “advertising spots and teleshopping spots” must not exceed 12 minutes per hour, while, for “other forms of advertising”, only a daily maximum is set: broadcast of such advertising, added to that of advertising spots must not exceed 15% of daily broadcast time.
In its action brought on 22 July 2009, the Commission says that Spain permits new forms of television advertising - infomercials, tele-promotion spots, sponsorship spots and micro-advertising spots - to be broadcast for longer than the 12 minutes per hour allowed for advertising spots. Spain challenges this interpretation, arguing that these four forms of advertising are not “advertising spots” but “other forms of advertising”. What is at stake is clear: by bringing the four forms of advertising at issue under the heading “other forms of advertising”, advertisers can circumvent the 12-minute limit at peak viewing times.
There being no definition of these two concepts in the directive, the advocate general calls on the Court to say that the two concepts need a uniform, independent definition across the EU to avoid case-by-case interpretations in the different member states. He says that, to pursue the objectives of the directive, these definitions must ensure that the time limit on advertising at peak viewing periods that the hourly maximum seeks to impose is respected. While not in agreement with the Commission's interpretation of “other forms of advertising”, he nevertheless says that the four forms of advertising at issue must be seen as “advertising spots”, and this includes sponsorship spots (where the announcement of the sponsorship of a programme and the advert for the sponsor are made simultaneously). If these spots were, as Spain would like, included with the “other forms of advertising”, advertisers could easily get round the 12-minute limit by broadcasting a sponsorship announcement along with the advertising message for the purchase of their goods or services. The advocate general says then that the Commission has grounds for requiring only those sponsorship announcements which do not encourage the purchase of particular goods and services from the sponsor to be broadcast outside the hourly limit. In the light of all of these points, he recommends that the Court rules against Spain. (F.G./transl.rt)