According to the Court of Justice of the EU, the protection of television viewers’ interests could be undermined, if payment were treated as a necessary condition for establishing intention. Therefore, the fact that no payment is made does not mean that the intentional nature of surreptitious advertising can be ruled out.

The ‘Television without Frontiers’ Directive prohibits ‘surreptitious advertising’, which it defines as ‘the representation in words or pictures of goods, services, the name, the trade mark or the activities of a producer of goods or a provider of services in programmes when such representation is intended by the broadcaster to serve advertising and might mislead the public as to its nature’. In particular if such representation is done in return for payment or for similar consideration, is considered to be intentional.

Although the provision of payment or similar consideration is indicative of an intention to advertise, it is clear from the definition set out in the Directive, and from the purpose and general scheme of that Directive, that the lack of such payment or consideration does not mean that such an intention can be ruled out. Thus, the fact that no payment is made does not mean that there is no surreptitious advertising.

The Court also adds that having the payment as a necessary condition could undermine the protection of the interests of television viewers and deprive the prohibition of surreptitious advertising of its effectiveness, especially given the difficulty, or even the impossibility, in certain cases of proving the provision of payment or of consideration of another kind for TV advertising which nevertheless displays all the characteristics of surreptitious advertising.

This decision is a reference for a preliminary ruling in which the Simvoulio tis Epikratias (Council of State, Greece) has referred a question concerning the interpretation of the Television without Frontiers Directive to the Court. Now, the national court or tribunal to dispose of the case in accordance with the Court’s decision, which is similarly binding on other national courts or tribunals before which a similar issue is raised.