Provisional text

26 June 2025 (*)

( Reference for a preliminary ruling – Directive 2010/13/EU – Audiovisual media service providers – National legislation requiring respect for human dignity and prohibiting the broadcasting of content of poor quality – Principle of interpreting national law in conformity with EU law – Limits – Principle that offences and penalties must be defined by law – Principle of legal certainty )

In Joined Cases C‑555/23 and C‑556/23,

REQUEST for a preliminary ruling under Article 267 TFEU from the Symvoulio tis Epikrateias (Council of State, Greece), made by decision of 2 August 2023, received at the Court on 4 September 2023, in the proceedings

Makeleio EPE (C‑555/23),

Ethniko Symvoulio Radiotileorasis (ESR),

THE COURT (Fifth Chamber),

composed of M.L. Arastey Sahún (Rapporteur), President of the Chamber, D. Gratsias, E. Regan, J. Passer and B. Smulders, Judges,

Advocate General: T. Ćapeta,

Registrar: L. Carrasco Marco, Administrator,

having regard to the written procedure and further to the hearing on 16 October 2024,

after considering the observations submitted on behalf of:

–Makeleio EPE, by S. Charalampous, dikigoros,

–the Ethniko Symvoulio Radiotileorasis (ESR), by Z. Chatzipavlou and A. Dimitrakopoulou, acting as Agents,

–the Greek Government, by Z. Chatzipavlou, K. Konsta, M. Tassopoulou and D. Tsagkaraki, acting as Agents,

–the Swedish Government, by F.-L. Göransson, J. Olsson, A. Runeskjöld and H. Shev, acting as Agents,

–the European Commission, by O. Gariazzo, L. Malferrari, G. Meessen and D. Triantafyllou, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 30 January 2025,

gives the following

1These requests for a preliminary ruling concern the interpretation (i) of Directive 2010/13/EU of the European Parliament and of the Council of 10 March 2010 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services (Audiovisual Media Services Directive) (OJ 2010 L 95, p. 1), as amended by Directive (EU) 2018/1808 of the European Parliament and of the Council of 14 November 2018 (OJ 2018 L 303, p. 69) (‘Directive 2010/13’), and (ii) of Articles 20 and 21 and Article 49(1) of the Charter of Fundamental Rights of the European Union (‘the Charter’).

2The requests have been made in two sets of proceedings between, on the one hand, Makeleio EPE and Zougla G.R. AE (‘Zougla’), in Case C‑555/23 and in Case C‑556/23, respectively, and, on the other, the Ethniko Symvoulio Radiotileorasis (ESR) (National Broadcasting Council, Greece; ‘the ESR’), concerning the lawfulness of two decisions imposing on each of those companies an administrative fine for broadcasting audiovisual content of poor quality and for failing to comply with the obligation to respect human value and dignity (‘the decisions at issue in the main proceedings’).

Legal context

European Union law

3Recitals 11, 18, 21, 38, 41, 59, 83 and 104 of Directive 2010/13 state:

‘(11) It is necessary, in order to avoid distortions of competition, improve legal certainty, help complete the internal market and facilitate the emergence of a single information area, that at least a basic tier of coordinated rules apply to all audiovisual media services, both television broadcasting (i.e. linear audiovisual media services) and on-demand audiovisual media services (i.e. non-linear audiovisual media services).

…

(18) Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services (Framework Directive) [(OJ 2002 L 108, p. 33)] according to its Article 1(3) is without prejudice to measures taken at [EU] or national level to pursue general interest objectives, in particular relating to content regulation and audiovisual policy.

…

(21) For the purposes of this Directive, the definition of an audiovisual media service should cover only audiovisual media services, whether television broadcasting or on-demand, which are mass media, that is, which are intended for reception by, and which could have a clear impact on, a significant proportion of the general public. Its scope should be limited to services as defined by the [FEU Treaty] and therefore should cover any form of economic activity, including that of public service enterprises, but should not cover activities which are primarily non-economic and which are not in competition with television broadcasting, such as private websites and services consisting of the provision or distribution of audiovisual content generated by private users for the purposes of sharing and exchange within communities of interest.

…

(38) Technological developments, especially with regard to digital satellite programmes, mean that subsidiary criteria should be adapted in order to ensure suitable regulation and its effective implementation and to give players genuine power over the content of an audiovisual media service.

…

(41) Member States should be able to apply more detailed or stricter rules in the fields coordinated by this Directive to media service providers under their jurisdiction, while ensuring that those rules are consistent with general principles of Union law. … The concept of rules of general public interest has been developed by the Court of Justice in its case-law in relation to Articles 43 and 49 [EC] (now Articles 49 and 56 [TFEU]) and includes, inter alia, rules on the protection of consumers, the protection of minors and cultural policy. The Member State requesting cooperation should ensure that the specific national rules in question are objectively necessary, applied in a non-discriminatory manner and proportionate.

…

(59) The availability of harmful content in audiovisual media services is a concern for legislators, the media industry and parents. There will also be new challenges, especially in connection with new platforms and new products. Rules protecting the physical, mental and moral development of minors as well as human dignity in all audiovisual media services, including audiovisual commercial communications, are therefore necessary.

…

(83) In order to ensure that the interests of consumers as television viewers are fully and properly protected, it is essential for television advertising to be subject to a certain number of minimum rules and standards and that the Member States must maintain the right to set more detailed or stricter rules and in certain circumstances to lay down different conditions for television broadcasters under their jurisdiction.

…

(104) Since the objectives of this Directive, namely the creation of an area without internal frontiers for audiovisual media services whilst ensuring at the same time a high level of protection of objectives of general interest, in particular the protection of minors and human dignity as well as promoting the rights of persons with disabilities, cannot be sufficiently achieved by the Member States and can therefore, by reason of the scale and effects of this Directive, be better achieved at Union level, the Union may adopt measures in accordance with the principle of subsidiarity as set out in Article 5 [TEU]. In accordance with the principle of proportionality, as set out in that Article, this Directive does not go beyond what is necessary in order to achieve those objectives.’

4Article 1(1) of Directive 2010/13 provides:

‘For the purposes of this Directive, the following definitions shall apply:

(a) “audiovisual media service” means:

(i) a service as defined by Articles 56 and 57 [TFEU] where the principal purpose of the service or a dissociable section thereof is devoted to providing programmes, under the editorial responsibility of a media service provider, to the general public, in order to inform, entertain or educate, by means of electronic communications networks within the meaning of point (a) of Article 2 of [Directive 2002/21]; such an audiovisual media service is either a television broadcast as defined in point (e) of this paragraph or an on-demand audiovisual media service as defined in point (g) of this paragraph;

(ii) audiovisual commercial communication;

…

(b) “programme” means a set of moving images with or without sound constituting an individual item, irrespective of its length, within a schedule or a catalogue established by a media service provider, including feature-length films, video clips, sports events, situation comedies, documentaries, children’s programmes and original drama;

…

(c) “editorial responsibility” means the exercise of effective control both over the selection of the programmes and over their organisation either in a chronological schedule, in the case of television broadcasts, or in a catalogue, in the case of on-demand audiovisual media services. Editorial responsibility does not necessarily imply any legal liability under national law for the content or the services provided;

(d) “media service provider” means the natural or legal person who has editorial responsibility for the choice of the audiovisual content of the audiovisual media service and determines the manner in which it is organised;

…

(e) “television broadcasting” or “television broadcast” (i.e. a linear audiovisual media service) means an audiovisual media service provided by a media service provider for simultaneous viewing of programmes on the basis of a programme schedule;

…

(g) “on-demand audiovisual media service” (i.e. a non-linear audiovisual media service) means an audiovisual media service provided by a media service provider for the viewing of programmes at the moment chosen by the user and at his individual request on the basis of a catalogue of programmes selected by the media service provider;

…’

5Article 2(1) of Directive 2010/13 provides:

‘Each Member State shall ensure that all audiovisual media services transmitted by media service providers under its jurisdiction comply with the rules of the system of law applicable to audiovisual media services intended for the public in that Member State.’

6Under Article 4(1) of that directive:

‘Member States shall remain free to require media service providers under their jurisdiction to comply with more detailed or stricter rules in the fields coordinated by this Directive, provided that such rules are in compliance with Union law.’

7Article 6(1) of that directive is worded as follows:

‘Without prejudice to the obligation of Member States to respect and protect human dignity, Member States shall ensure by appropriate means that audiovisual media services provided by media service providers under their jurisdiction do not contain any:

(a) incitement to violence or hatred directed against a group of persons or a member of a group based on any of the grounds referred to in Article 21 of the Charter;

(b) public provocation to commit a terrorist offence as set out in Article 5 of Directive (EU) 2017/541 [of the European Parliament and of the Council of 15 March 2017 on combating terrorism and replacing Council Framework Decision 2002/475/JHA and amending Council Decision 2005/671/JHA (OJ 2017 L 88, p. 6)].’

8Article 9(1) of Directive 2010/13 provides:

‘Member States shall ensure that audiovisual commercial communications provided by media service providers under their jurisdiction comply with the following requirements:

…

(c) audiovisual commercial communications shall not:

(i) prejudice respect for human dignity;

…’

Directive (EU) 2018/1972

9Recital 7 of Directive (EU) 2018/1972 of the European Parliament and of the Council of 11 December 2018 establishing the European Electronic Communications Code (OJ 2018 L 321, p. 36) states:

‘… The content of television programmes is covered by [Directive 2010/13]. The regulation of audiovisual policy and content aims at achieving general interest objectives, such as freedom of expression, media pluralism, impartiality, cultural and linguistic diversity, social inclusion, consumer protection and the protection of minors. …’

10Under Article 2(1) of Directive 2018/1972, which replaced Article 2(a) of Directive 2002/21:

‘For the purposes of this directive, the following definitions shall apply:

(1) “electronic communications network” means transmission systems, whether or not based on a permanent infrastructure or centralised administration capacity, and, where applicable, switching or routing equipment and other resources, including network elements which are not active, which permit the conveyance of signals by wire, radio, optical or other electromagnetic means, including satellite networks, fixed (circuit- and packet-switched, including internet) and mobile networks, electricity cable systems, to the extent that they are used for the purpose of transmitting signals, networks used for radio and television broadcasting, and cable television networks, irrespective of the type of information conveyed’.

Greek law

Law No 4779/2021

11Article 8 of nomos 4779/2021 Ensomatosi stin ethniki nomothesia tis Odigias (EE) 2010/13 tou Europaïkou Koinovouliou kai tou Symvouliou tis 10is Martíou 2010 gia ton syntonismo orismenon nomothetikon, kanonistikon kai dioikitikon diataxeon ton kraton melon skhetika me tin parochi ypiresion optikoakoustikon meson, opos echei tropopoiitheí me tin Odigía (EE) 2018/1808 tou Europaïkou Koinovouliou kai tou Symvouliou tis 14is Noemvríou 2018 kai alles diataxeis armodiotitas tis Genikis Grammateias Epikoinonías kai Enimerosis (Law 4779/2021 transposing into national law Directive 2010/13/EU of the European Parliament and of the Council of 10 March 2010 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services, as amended by Directive (EU) 2018/1808 of the European Parliament and of the Council of 14 November 2018, and other provisions within the competence of the Secretariat General of Communication and Information) (‘Law 4779/2021’) provides:

‘Audiovisual media services must not contain any incitement to violence or hatred against a group of persons or against a member of a group on grounds of race, colour, national or ethnic origin, ancestry, religion, disability, sexual orientation, identity, or gender characteristics.’

12Article 36(1) of Law 4779/2021 provides:

‘In the event of an infringement of Article 8 … by a media service provider, whether subscription-based or not, [the ESR] shall impose the penalties provided, respectively, by nomos 2644/1998 [- Gia tin parochi syndromitikon radiofonikon kai tileoptikon ypiresion kai synafeis diataxeis (Law 2644/1998 on the provision of pay-radio and pay-television services and related provisions) of 13 October 1998 (FEK A’ 233),] and by nomos 2328/1995 [- Nomiko kathestos tis idiotikis tileorasis kai tis topikis radiophonías, rythmisi thematon tis radiotileoptikis agoras kai alles diataxeis (Law 2328/1995 on the legal status of private television broadcasters and local radio and television broadcasters, the regulation of the broadcasting market and other provisions) of 3 August 1995 (FEK A’ 159)].’

Law No 2328/1995

13Under Article 1 of Law 2328/1995, in the version applicable to the disputes in the main proceedings (‘Law 2328/1995’):