OPINION OF ADVOCATE GENERAL

JACOBS delivered on 22 May 2003 (1)

Legal framework

Community law

6. Article 11(1) permits advertisements to be inserted during as well as between programmes provided that the conditions specified in paragraphs 2 to 5 of that Article are fulfilled, in such a way that ‘the integrity and the value of the programme, taking into account natural breaks in and the duration and nature of the programme, and the rights of the rights holders are not prejudiced'.

7. Article 11(4) lays down the general rule (hereinafter ‘the general rule') that a period of at least 20 minutes should elapse between each successive advertising break within a programme. Article 11(3) provides for a special rule in respect of ‘the transmission of audiovisual works such as feature films and films made for television' (hereinafter ‘the special rule'). Those types of work, provided their scheduled duration is more than 45 minutes, may be interrupted once for each period of 45 minutes. A further interruption is allowed if their scheduled duration is at least 20 minutes longer than two or more complete periods of 45 minutes. However, Article 11(3) also stipulates an exclusion from the special rule (hereinafter ‘the exclusion'), in any event in so far as it applies to films for television. The exclusion encompasses ‘series, serials, light entertainment programmes and documentaries', with the consequence that those types of work are subject to the general rule.

10. The European Council, meeting at Rhodes on 2 and 3 December 1988, indicated the importance of deploying the Community's efforts in a manner consistent with the Council of Europe Convention. The Convention also finds mention in the fourth recital of the preamble to the Directive. The Convention is accompanied by an Explanatory Report which has been cited by the Court of Justice as an aid to the interpretation of the Directive.

12. It is therefore reasonable to conclude that the provisions of Article 11 seek to achieve a balance between a number of potentially conflicting interests: those of viewers, of broadcasters, or advertisers on whom broadcasting is financially dependent, and of the makers of the programmes.

13. Some confusion has arisen in the present proceedings concerning the terms ‘series' and ‘serial' as those terms appear in the exclusion, and in particular concerning the term ‘Reihe' which occurs in the German-language version of the exclusion and in the questions referred by the national court. If one compares the word order of the German-language version (‘Serien, Reihen …') with the English and French versions (‘series, serials …'; ‘séries, feuilletons …'), it would seem that ‘Reihe' corresponds to ‘serial' in the English version and to ‘feuilleton' in the French version, and that the German term ‘Serie' corresponds to ‘series' in the English version and to ‘série' in the French version.

14. It seems, however, that, correctly understood, the term ‘Reihe' has a broader scope than ‘Serie', as indeed is suggested by the terms of the questions referred by the national court, and that ‘Reihe' in fact corresponds to the English ‘series' and to the French ‘série'.

15. In any event, what is necessary for present purposes in construing the exclusion is to determine in what circumstances several audiovisual works will be sufficiently linked to constitute a series or serial and therefore to fall within the exclusion. Provided that the outer limits of those two concepts are made clear, it does not seem to me necessary to arrive at a precise demarcation of the line between the two, especially given that they appear, in at least some language versions, to be imprecise and overlapping in their meanings.

European Convention on Human Rights

16. Article 10 of the Convention has been cited in the course of the proceedings. It reads as follows:‘1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health of morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.'

National law

17. In Germany, broadcasting is within the competence of the German Länder, rather than of the federal government. A coordinated approach to broadcasting regulation is secured by an agreement amongst the Länder (the Rundfunksstaatsvertrag). In Lower Saxony, television regulation is contained in the State Broadcasting Law (Niedersächsisches Landesrundfunkgesetz). Both the Rundfunkstaatsvertrag and the State Broadcasting Law contain provisions which are in all relevant respects substantially identical to Article 11(1), (3) and (4) of the Directive.

Factual background and questions referred

18. In the proceedings before the national court, the plaintiff, RTL Television GmbH (hereinafter ‘RTL') seeks the annulment of a decision dated 12 November 1993, taken by the Landesrundfunkausschuss (Lower Saxony Broadcasting Board, hereinafter ‘the Board') which was at that time the body responsible for the regulation of private television channels in the state of Lower Saxony, but which has since been replaced in that role by the defendant, the Niedersächsische Landesmedienanstalt für privaten Rundfunk (hereinafter ‘the NLM').

19. The contested decision concerned certain films broadcast and to be broadcast by RTL. The films in question were made for television and were grouped together into a sequence, under the title of ‘Great Television Stories', comprising various thematic categories, which were in their turn given such titles as ‘Family Fortunes', ‘Dangerous Liaisons' and ‘Fateful Encounters'. They were specifically designed to incorporate advertising interruptions at the frequency permitted under the general rule.

21. RTL brought proceedings in which it challenged the validity of the Board's decision on various grounds, one of which was that the Board's interpretation of ‘series' (Reihe) failed to accord with the correct meaning of that term as a matter of Community law. RTL argued that for a number of works to constitute a ‘series', it was sufficient if they were characterised both by criteria of content, such as film genre, similarity of script and similarity of theme, and by criteria of external form, such as length of broadcast and broadcasting slot, and various other factors, for example a particular director.

23. Having failed at first instance, RTL appealed to the Oberverwaltungsgericht. Although the Oberverwaltungsgericht is inclined to share the interpretation of ‘series' (Reihe) adopted by the Board, it recognises that the question is one of Community law, and has decided to stay the proceedings before it and to refer the following questions to the Court of Justice:‘(1) Does Article 11(3) of 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) as amended by Directive 97/36/EC of the European Parliament and of the Council of 30 June 1997 (OJ 1997 L 202, p. 60), by restricting advertising breaks, pursue the objective of protecting the artistic value of feature films and films made for television, irrespective of whether films made for television have from the outset been produced for television and provided with breaks designed for the insertion of advertising spots?

(2) What criteria must be satisfied for a broadcast of several feature films and films made for television to be classified as a series, derogating from the advertising restrictions for feature films and films made for television?

(3) Are broadcasts consisting of several parts which manifest a common concept due to common features of theme, content and form, and which are broadcast at connected times, to be regarded as a series for the purposes of Article 11(3) of Directive 89/552/EEC as amended by Directive 97/36/EC?

(4) Does the interpretation of the term series for the purposes of Article 11(3) of Directive 89/552/EEC as amended by Directive 97/36/EC permit common points of theme or content of the episodes to be wholly or largely regarded as unnecessary and predominantly points of form or form of reception taken as the criterion?

25. The Court received written submissions from RTL, the NLM, the United Kingdom Government and the Commission, all of which, with the exception of the United Kingdom Government, were represented at the hearing.

Assessment

The first question

26. By its first question, the referring court wishes in essence to know whether, in the light of the objectives pursued by the special rule, that rule extends to films made for television which have, from the outset, been designed for the insertion of advertising breaks.

27. RTL submits that the regulation of advertising constitutes a restriction of the producer's and broadcaster's fundamental rights to freedom of expression and artistic freedom, rights which are enshrined in the general principles of the Community legal order. Accordingly, in order to be compatible with Community primary law, the regulation of advertising in the Television Directive must be shown to be appropriate, necessary and proportionate to the achievement of a legitimate objective.

28. RTL accepts that the protection of the artistic integrity of films is capable of constituting a legitimate goal justifying the restriction of fundamental rights but only in so far as it contributes to the realisation of the rights of ‘others' in the sense of the second paragraph of Article 10 of the European Convention on Human Rights. RTL concludes that, in the present context, the ‘others' must be understood as the creators of the films the integrity of which is being protected.

29. RTL therefore asserts that if the creator of a film can be shown to have intended it to be interrupted more frequently than the special rule provides, there is no longer any legitimate purpose for applying the special rule in restriction of fundamental rights. Such a restriction would not be permissible in order to protect the rights of the work's creator, given that it would run directly counter to the creator's own wishes. It would also compromise the pluralism of the audiovisual media, given that the postfinancing of films depends on the ability of broadcasters to insert advertising breaks more frequently than the special rule allows.

30. RTL concludes that, where possible, Community legislation should be interpreted in such a way as to ensure its conformity with fundamental rights, and that accordingly, the special rule is to be construed as only applying to films in so far as that is the wish of the films' creators, whose rights go to justify that rule.

31. By contrast, the United Kingdom Government, the Commission, the referring court and the NLM all consider that the special rule should extend to films made for television whether or not they have been made to incorporate advertising breaks.

32. I am not convinced by RTL's submissions on the first question.

33. Considering first the text of Article 11(3) of the Directive, it seems to me to be entirely unambiguous as regards the current question. As the Commission points out, the special rule which that provision lays down is clearly stated to apply to films made for television as well as to feature films, and makes no distinction on the basis of whether a film made for television was designed to incorporate advertising breaks.

34. The meaning suggested by the text of Article 11(3) is confirmed when reference is made to the legislative history of Directive 97/36, which introduced that provision in its present form. As the United Kingdom Government, the Commission and the referring court note, the Commission's original proposal to amend the Television Directive proposed to remove films made for television from the special rule. In an explanatory memorandum the Commission explained the proposed amendment partly on the basis that ‘films made for television can, from the outset, have natural breaks built in allowing advertising spots to be inserted without detracting from the integrity of the work', whereas ‘there are no planned advertising breaks' in films made for cinema. The rejection of the Commission's proposed amendment during the legislative process tends to support the notion that the special rule is intended, as its wording indicates, to encompass all films for television without the distinction for which RTL contends.

35. As the Commission notes, the interpretation proposed by RTL would render the special rule entirely optional in the case of films made for television, its application dependent upon the intentions of the producers of such films. That interpretation would therefore in effect accomplish the amendment to Article 11(3) proposed by the Commission but rejected by the Community legislature.

36. Nor do the objects pursued by the special rule suggest any need to depart from its clear and unambiguous wording by reading into it an additional exclusion for television films designed to incorporate advertising breaks. In the light of the 24th recital to the Directive, and of the Explanatory Report to the Television Convention, the special rule contained in Article 11(3) can be understood not only to serve the interests of the creators of audiovisual works but also to protect the consumers of those works against excessive advertising in the context of films for television, an aim which would apply equally to films designed to incorporate advertising breaks.

37. The question remains whether such an interpretation of the special rule would, as RTL claims, constitute an unjustified infringement of the fundamental rights enshrined in the general principles of Community law.

38. I am not convinced that the regulation of television advertising will necessarily and in all cases involve a restriction on the fundamental rights of broadcasters and producers to freedom of expression and artistic freedom. Even assuming, however, that the special rule does constitute a restriction of those rights which therefore needs to be justified, I consider that RTL is wrong to assume that the only interest capable of justifying it is that of the creators of the films at issue. In my view, it is equally legitimate to have regard to the interests of viewers as consumers. The special rule can therefore be defended on the basis that it serves to protect viewers against excessive advertising.

39. In its submissions on the remaining questions referred, RTL explicitly acknowledges the possibility that the special rule might be defended by reference to such a purpose, but argues that, at least if it were given a broad interpretation and if its exclusion were narrowly construed, the special rule would not constitute a proportionate method of furthering that purpose. For reasons which I explain below, I do not accept that the special rule is disproportionate when interpreted in the manner which I propose.

The second, third and fourth questions

40. The remaining questions referred all concern what criteria should be applied to determine whether a given work constitutes a ‘series' for the purposes of Article 11(3) of the Directive.

41. RTL submits that the term ‘series' is ambiguous, not receiving any clear definition in the Directive, and not having any clear and consistent meaning across the various language versions of the Directive. It must therefore be interpreted according to its context and to the objectives of the Directive, and so as to avoid any restriction of the fundamental rights enshrined in the general principles of Community law. RTL submits that each such method of interpretation points in favour of a broad interpretation of ‘series', whereby several works will constitute a series when they are broadcast at a fixed time, and are bound together by other formal and conceptual criteria, and by a general common theme, as in the case of ‘Great Television Stories'.

42. In RTL's view, a contextual interpretation of ‘series' suggests that, in order to avoid rendering that term redundant, it should be given a definition which sufficiently differentiates it from ‘serial'. The exclusion would not have contained both terms unless they were intended to convey different meanings. The former term should not therefore entail such a close connection between its various component parts as is required by the latter concept. According to RTL, whereas a serial requires a unity of action, place and persons, a series will exist according to the more general criteria set out in the preceding paragraph.

43. RTL argues further that the purposes of the Directive militate in favour of a broad interpretation of ‘series'. It points, first, to the Directive's primary objective of promoting the free movement of services. It suggests that advertising restrictions which are too severe run counter to that objective. Any ambiguity in those restrictions must therefore be interpreted in restrictive fashion. Given that ‘series' forms part of the exclusion from the restriction represented by the special rule, it must accordingly be given the broad meaning contended for by RTL.

44. RTL also draws attention to the Directive's objective of promoting European audiovisual production, which is evident from the 19th, 20th and 22nd recitals of the preamble to the Directive. By limiting the frequency of advertising breaks, the special rule undermines the capacity of broadcasters to recoup the costs entailed in producing films for television within Europe. By contrast, producers in the United States are better placed to recover the costs of producing films, given the more frequent advertising interruptions which they are permitted to make.

46. Whilst RTL accepts that the protection of consumers could constitute a legitimate reason for imposing a restriction of the kind contained in the special rule, it considers that such a restriction is not a proportionate method of achieving that objective. Sufficient protection is assured to consumers by their freedom to choose between a variety of broadcasters. If a particular broadcaster made provision for more advertising interruptions than consumers were prepared to accept, it would suffer from a corresponding reduction in its viewing figures. However, should more protection be considered necessary for viewers, it would be sufficient to require broadcasters to indicate, when publishing their listings, the frequency with which advertising interruptions would occur, by analogy with the Court's case-law in the context of the free movement of goods.

47. The referring court, the Commission, the United Kingdom Government, and the NLM, all reject RTL's proposed interpretation of the concept of ‘series'.

48. I am equally unconvinced by RTL's submissions on the second, third and fourth questions referred.

49. I agree that the concept of a series is an imprecise one, as is that of a serial. It seems to me, however, that a sufficiently clear delineation of the two concepts, as they are generally understood, can be given for the purposes of the present issue. From the observations which have been submitted, it seems that several audiovisual works must, in order to constitute a serial, be linked together by a continuing narrative of which they constitute episodes. For several such works to constitute a series, they need to be linked either by a continuing narrative or to have characters (dramatis personae) in common. Connections of form, however, of the kind suggested by RTL, are neither necessary nor sufficient.

50. Such an approach also accords better, in my view, with the objectives pursued by Article 11(3) of the Directive than RTL's proposed interpretation. As I have already stated in my analysis of the first question, I consider that the special rule can be understood to protect viewers against excessive advertising when viewing feature films and films made for television. The intention is clearly that viewers should enjoy a higher level of protection when watching those types of work than ordinary programmes, except in cases where the exclusion applies. However the exclusion is interpreted, it must be given a meaning which would not entirely undermine the special rule itself. As the Commission, the United Kingdom Government and NLM all note, RTL's understanding of ‘series' would allow broadcasters easily to evade the special rule by grouping together films made for television on the basis of vague and subjective general themes and by giving them a regular slot in the schedules. Only by requiring a link which is solidly related to content is it possible to avoid such an outcome, which cannot have been the intention underlying the exclusion.

51. Moreover, it seems to me reasonable to presume that films are singled out for special treatment in Article 11(3) because of the more sustained concentration required of viewers when both plot and characters must be developed during the course of a single and self-standing work, which would be unduly disrupted if advertising interruptions occurred with the frequency permitted by the general rule. Such a rationale provides a further basis for interpreting series and serial as I have proposed. Those categories appear in the exclusion precisely because, where the narrative or the characters involved in a work are developed over the course of a number of parts, there is not the same need to preserve the sustained concentration of viewers by imposing greater limitations than normal upon the permitted frequency of advertising interruptions.

53. Even assuming that the special rule as I have interpreted it and the exclusion to it constitutes a restriction of fundamental rights, I consider it a proportionate method of protecting viewers. I would note, first of all, that RTL's argument on the question of proportionality appears to me to possess a more radical logic than RTL attributes to it. If it were true, as RTL appears to suggest, that it would be sufficient, in order to protect viewers from excessive advertising, for broadcasters to inform viewers of the frequency of advertising breaks, and that any further restrictions on advertising were disproportionate, then it would follow that neither the special rule nor the general rule nor indeed the rules in the Directive regulating the overall quantity of advertising could be allowed to stand, at least in cases where the rights of the creators of the material broadcast were not in issue. Given that those rules in the Directive could not be interpreted in such a way as to render them proportionate on RTL's assessment, they would need to be set aside as incompatible with broadcasters' and producers' fundamental rights.

54. In any event, I do not share RTL's reservations as to the proportionality of the interpretation of the special rule and the exception which I have here proposed. As appears from the case-law of the European Court of Human Rights applying the right to freedom of expression enshrined in Article 10 of the European Convention on Human Rights, that Court has shown itself willing to accept considerable restrictions on commercial advertising, and has emphasised the particular importance of according to national authorities a margin of appreciation in commercial matters, especially in an area as complex and fluctuating as that of advertising.

Conclusion

(1) Article 11(3) of 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 as amended by Directive 97/36/EC of 30 June 1997 applies irrespective of whether films made for television have from the outset been produced for television and provided with breaks designed for the insertion of advertising spots.

(2) Several audiovisual works constitute a series within the meaning of that provision where they share either a continuing dramatic narrative or characters (dramatis personae) in common.

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1 – Original language: English.

2 – OJ 1989 L 298, p. 23.

3–

OJ 1997 L 202, p. 60.

4–

Case C-412/93 <i>Leclerc-Siplec </i>[1995] ECR I-179, paragraphs 28 and 29 of the judgment.

5–

EC Bulletin, No 12/1988, pp. 8 and 10.

6–

Joined cases C-320-94, C-328/94, C-329/94, C-337/94, C-338/94 and C-339/94 <i>RTI and Others</i> [1996] ECR I-6471, paragraph 33 of the judgment.

7–

See paragraph 10 of my Opinion in case C-6/98 <i>ARD</i> [1999] ECR I-7599.

8–

COM(95) 86 final, 95/0074 (COD) of 31 May 1995, ‘Report on Application of Directive 89/552/EEC and Proposal for a European Parliament and Council Directive amending Council Directive 89/552/EEC', p. 40.

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