Summaries of important judgments
May 2012
C-281/09 Commission v Kingdom of Spain, judgment of 24 November 2011
The Court clarifies the concepts of ‘advertising spot’ and ‘other form of advertising’ within the
meaning of the Television Without Frontiers Directive.
In its version current at the time of the events, Directive 89/552/EEC, known as the ‘Television Without
Frontiers Directive’ (which has been replaced by Audiovisual Media Services Directive 2010/13/EU) places
two limits on television advertising: a daily limit not exceeding 20% of retransmission time for advertising
spots, teleshopping spots and ‘other forms of advertising’, and an hourly limit not exceeding 12 minutes
for advertising spots and teleshopping spots. In other words, the ‘other forms of advertising’ are not
subject to this hourly limit.
Following the advent of new forms of advertising breaking the traditional mould of the advertising spot,
the question arose of whether some of these new forms of advertising should be regarded as ‘advertising
spots’ or as ‘other forms of advertising’ within the meaning of the Directive, with the consequence that
they would not be subject to the hourly limit of 12 minutes for which it provides.
It is in this context that the Commission challenged the findings of the Spanish authorities concerning four
forms of advertising (advertorials, telepromotions, sponsorship credits and micro-ads) that these forms of
advertising constituted ‘other forms of advertising’. The Commission was of the contrary opinion that
these constituted ‘advertising spots’, which should therefore be taken into account in the hourly limit of 12
minutes.
Referred the matter by the Commission, the Court of Justice, after having specified that the concept of
‘advertising spot’ must be given an autonomous and uniform interpretation throughout the Union, having
regard to the context and the objective pursued by the legislation in question, recalls that the hourly limit
imposed on advertising is intended to establish a balanced protection of the financial interests of television
broadcasters and advertisers, on the one hand, and the interests of rights holders, namely writers and
producers, and of consumers as television viewers, on the other.
The Court also emphasises that the protection of television viewers from excessive advertising is an
essential aspect of the objective of the Directive and that with that objective specifically in mind, the
Union legislature chose to ensure that the interests of television viewers were fully and properly protected
by making the different forms of promotion, such as television advertising, teleshopping and sponsorship,
subject to a certain number of minimum rules and standards.
Endorsing the Commission’s arguments, the Court considers that any type of television advertising
broadcast between programmes or during breaks constitutes, as a general rule, an ‘advertising spot’.
However, two categories of advertising lie outside this definition: the first concerns the types of
advertising covered by another form of advertising expressly governed by the Directive, as is the case for
‘teleshopping’ in particular. The second groups together the types of advertising which comply with two
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cumulative conditions: they require, because of the way in which they are presented, a duration greater
than that of advertising spots; application of the hourly limit would, without valid justification, amount to
disadvantaging them by comparison with advertising spots. In other words, the Court, unlike the Spanish
authorities, considers that even if a specific type of advertising has inherently, that is to say, because of
the way in which it is presented, a duration which is slightly longer than the usual duration of advertising
spots, that fact alone is not sufficient reason for it to be classified as an ‘other form of advertising’. It
therefore gives a narrow definition to this concept and, conversely, a broad definition to that of
‘advertising spot’.
Consequently, the Court concludes that, by tolerating the four forms of advertising cited above not being
included in the hourly limit, the Kingdom of Spain has failed to fulfil its obligations under the Television
Without Frontiers Directive.