Brussels, 18/07/2013 (Agence Europe) - On Thursday 18 July 2013, the European Court of Justice ruled that the Italian rule on television advertising, which lays down lower hourly limits for advertising for pay-TV broadcasters than for free-to-air TV broadcasters, is, in principle, compatible with European Union (Case C-234/12).
Italian legislation provides that the broadcast of advertisements by the holder of the general public broadcasting service concession may not exceed 4% of weekly programming time and 12% of each hour. The broadcast of advertising spots by other free-to-air TV broadcasters may not exceed 15% of daily programming time and 18% of each hour, whilst for pay-TV broadcasters, it should not exceed, for 2011, 14% of each hour (in those two cases, any advertising in excess thereof - which, in any event, must not exceed 2% in any given hour - must be offset by a reduction in the preceding or following hour). Sky Italia requested the Tribunale Amministrativo Regionale per il Lazio (Administrative Court of the Lazio region, Italy) to annul AGCOM's fine on Sky Italia for exceeding the 14% of each hour for advertising. The court asked the Court of Justice whether the Italian rules comply with the audiovisual media services directive (2010/13/EU), which restricts advertising to 20%, but leaves it for member states to decide on stricter rules.
In the ruling, the Court of Justice says that the directive in question makes television advertising subject to minimum rules and standards, in order to ensure that the interests of consumers as television viewers are protected. In that regard, it sets a limit of 20% of advertising and teleshopping spots per hour, but leaves the member states the option of setting more detailed or stricter rules for media service providers under their jurisdiction. “The financial interests of pay-TV broadcasters, which obtain revenue from subscriptions taken out by viewers, are different from those of free-to-air TV broadcasters which do not benefit from such a direct source of financing and must finance themselves, inter alia, by generating income from television advertising. Such a difference is, in principle, capable of placing pay-TV broadcasters in a situation which is objectively different. The situation of viewers is equally different, depending on whether they are subscribers to pay TV (in which case they pay to enjoy television programmes) or they use free-to-air television. It follows that, in seeking a balanced protection of the financial interests of broadcasters and of viewers, the national legislature may set different hourly broadcasting limits for advertising on pay-TV and on free-to-air TV”, the Court said. The Italian rules “could amount to a restriction on the freedom to provide services” but “in that regard, the Court states that the protection of consumers against abuses of advertising nevertheless constitutes an overriding reason relating to the general interest which may justify restrictions on the freedom to provide services, provided that those restrictions are such as to ensure achievement of the aim pursued and do not go beyond what is necessary for that purpose”. (FG/transl.fl)