the matter at hand
Reti Televisive Italiane Spa (“RTI”) is an Italian audiovisual media service that provides services through its television channels and holds 80% of the shares in a radio station.
AGCOM, the Broadcasting Authority, imposed sanctions on RTI for violating Article 38(2) of Legislative Decree No 177/2005. AGCOM considered promotional announcements for the radio station, aired on RTI's television channels, when calculating the hourly broadcasting time subject to the specified limits in that provision.
RTI initiated three legal actions before the Tribunale amministrativo regionale per il Lazio (Regional Administrative Court, Lazio, Italy), arguing that promotional announcements for the radio station should be treated as announcements related to RTI’s ‘own programs’ under Article 38(6) of Legislative Decree No 177/2005. Consequently, RTI asserted that these announcements should be excluded from the calculation of hourly television advertising time. The Regional Administrative Court rejected the claims, leading RTI to appeal before the Cosiglio di Stato (Counsil of State, Italy).
The Council of State has sought clarification from the ECJ on whether Article 23(2) of Directive 2010/13 should be interpreted as meaning that the concept of ‘announcements made by the broadcaster in connection with its own programs’ is to include promotional announcements made by a broadcaster for a radio station within the same group of companies.
the judgment of the ecj
The ECJ reiterates the rule in Article 23(2) of Directive 2010/13, emphasizing that the 20% limit on television advertising spots per hour does not apply to 'announcements made by the broadcaster in connection with its own programs’. Consequently, even neutral and informative televised announcements about a broadcaster's programs are considered 'television advertising', subject to hourly limits unless classified as 'announcements made by the broadcaster in connection with its own programs'.
The ECJ addresses whether radio station programs covered by announcements from a TV broadcaster qualify as 'programs'. The ECJ notes the Directive 2010/13 excludes radio broadcasting services, primarily sound-based, from its scope, even if accompanied by inseparable audiovisual elements. In addition, the ECJ evaluates whether, when the TV broadcaster and radio station are part of the same economic unit, announcements for the radio station can be classified as 'announcements made by the broadcaster in connection with its own programs’.
The ECJ states that according to Article 1(1)(f) of the Directive 2010/13, a 'broadcaster' is a media service provider of television broadcasts, and a 'media service provider', defined in Article 1(1)(d) of the Directive 2010/13, is a natural or legal person with editorial responsibility for audiovisual content. The applicable criteria for determining editorial responsibility, emphasizing effective control over program selection and organization. Editorial responsibility cannot rely solely on economic or organizational ties. For a broadcaster's programs to be considered its 'own' under Article 23(2) of the Directive 2010/13, the broadcaster must assume editorial responsibility for those programs. This entails having the power to make final decisions about the audiovisual offer, backed by adequate resources. This approach aligns with the Directive’s objective to protect viewers from excessive advertising.
The ECJ concludes that “that Article 23(2) of Directive 2010/13 must be interpreted as meaning that the concept of ‘announcements made by the broadcaster in connection with its own programmes’ does not cover promotional announcements made by a broadcaster for a radio station belonging to the same group of companies as that broadcaster, except where, first, the programmes which are the subject of those promotional announcements are ‘audiovisual media services’ within the meaning of Article 1(1)(a) of that directive, which implies that they are dissociable from the principal activity of that radio station and, second, that broadcaster has ‘editorial responsibility for those programmes within the meaning of Article 1(1)(c) of that directive.” (paragraph 40).