Judgment of the Court of 3 February 2021, Fussl Modestraße Mayr, C-555/19

• Date: 03 February 2021
• Year: 2021

7

pursued or disproportionate to that objective, such that, in that respect, it is also compa tible with the

freedoms enshrined in Articles 45, 49 and 56 TFEU.

In the fourth place, the Court considers that the legislation at issue, under which the transfer of a

docker to the quota of workers of a port area other than that in which he or she obtained his or her

recognition is subject to conditions and arrangements laid down by a collective labour agreement,

complies with the freedoms of movement provided for in Articles 45, 49 and 56 TFEU. It is

nevertheless for the referring court to determine that those conditions and arrangements laid down

are necessary and proportionate to the objective of ensuring security in each port area.

In the last place, the Court holds that legislation according to which logistics workers must hold a

‘security certificate’ whose issuance modalities are fixed by a collective labour agreement is not

incompatible with the freedoms enshrined in Articles 45, 49 and 56 TFEU, provided that the conditions

for the issue of such a certificate are necessary and proportionate to the ob jective of ensuring safety

in port areas and the procedure prescribed for its obtainment does not impose unreasonable and

disproportionate administrative burdens.

2. FREEDOM TO PROVIDE SERVICES

Judgment of the Court (Third Chamber) of 3 February 2021

Case C-555/19

Fussl Modestraße Mayr

Reference for a preliminary ruling – Directive 2010/13/EU – Provision of audiovisual media services –

Article 4(1) – Freedom to provide services – Equal treatment – Article 56 TFEU – Articles 11 and 20 of the

Charter o f Fundamental Rights of the European Union – Audiovisual commercial communication –

National legislation prohibiting television broadcasters from inserting in their programmes broadcast

throughout the national territory television advertisements whose broad casting is limited to a regional

level

Fussl Modestraße Mayr GmbH, a company incorpo rated under Austrian law, operates a network of

fashion shops in Austria and the Land of Bavaria (Germany). In 2018, it concluded a contract with

SevenOne Media GmbH, the marketing company of the German television station ProSiebenSat.1.

That contract concerned the broadcasting, solely in the Land of Bavaria, of advertising in the context

of programmes of the national channel ProSieben.

However, SevenOne Media refused to perform that contract. Since 2016, a State Treaty concluded by

the Länder has prohibited television broadcasters from inserting, in their national broadcasts,

television advertisements whose broadcasting is limited to a regional level. That prohibition aims at

reserving revenue from regional television advertising for regional and local television broadcasters,

thus ensuring them a source of financing and thus their sustainability, in order to enable them to

contribute to the pluralistic character of the offer of television programmes. The prohibition is

accompanied by an ‘opening clause’, allowing the Länder to authorise regional advertising in the

context of national broadcasts.

Under those circumstances, the Landgericht Stuttgart (Regional Court, Stuttgart, Germany), ruling on

a dispute relating to the performance of the contract in question, questions the conformity of that

prohibition with EU law.

That case invites the Court, in particular, to apply certain principles enshrined in its case-law on the

freedom to provide services and to interpret the Charter of Fundamental Rights of the European

Union (‘the Charter’) in the particular context of a prohibition on regional advertising on national

television channels. Such an analysis cannot disregard the existence of advertising services provided

on internet platforms which may constitute competition for traditional media.