18 July 2013: CJEU in case Sky Italia (C-234/12)
One of the goals of the Audiovisual Media Services Directive (2010/13/EU) is to protect consumers as television viewers from excessive television advertising. Therefore, the Member States are allowed to set their own rules and also differentiate in broadcasting rights granted to TV broadcasters under their jurisdiction. (Recital 83 Directive, Par. 17 judgment) In Italy, pay-TV broadcasters were given shorter hourly advertising limits than those of free-to-air broadcasters. (Par. 6) In the case in front of the CJEU the Italian court asked whether such a distinction was compatible with the principle of equality, rules of free movement of services and the principle of pluralism in media. (Par. 10)
The CJEU notices that the Directive is of a minimum harmonisation character and where it requires the Member States to set the limit of broadcasted advertisements to 20% of a given clock hour (Art. 23(1) Directive), this limit could be lowered on national levels in the interest of consumers as television viewers, as long as the EU principles are observed. (Par. 14) The interests of pay-TV broadcasters and free-to-air broadcasters are not seen as comparable by the CJEU which means that the infringement of the principle of equal treatment cannot be invoked: "Whilst the former generate revenue from
subscriptions taken out by viewers, the latter do not benefit from such a
direct source of financing, and must finance themselves either by
generating income from television advertising, or by other sources of
financing." (Par. 20) This difference could justify other rules for hourly broadcasting limits on television advertising. (Par. 23) While the provision of services by pay-TV broadcasters could be limited by such a special treatment, the need for the protection of consumers' interests could take precedence here, as long as the adopted rules were seen as proportional, which is for the national courts to determine. (Par. 25) There was not enough material submitted to the CJEU to determine whether such a national rule could distort competition on the media market. (Par. 32)
