The CJEU decided earlier in 2023 in Case C-662/21, Booky.fi that the free movement of goods provision on imports, Article 34 TFEU, permits Member States to have their own age classifications for audiovisual content, and that age classifications received in other Member States for the same content does not benefit from the principle of mutual recognition, derived from the Cassis de Dijon doctrine.
Booky.fi is a commercial undertaking in Finland which markets, via its online webstore, audiovisual programmes recorded on physical media such as DVDs and Blue-ray discs. The National Audiovisual Institute of Finland (Kansallinen audiovisuaalinen instituutti (KAVI)) that required Booky.fi to indicate, in the information relating to the recordings of audiovisual programmes offered for sale via its online store, the age limit below which those programmes cannot be viewed, based on the classification laid down in the Finnish legislation. This demand came after the Institute carried out an inspection of the undertakings webstore, and established that it did not provide any information relating to the permitted age limit for the content of the audiovisial programmes, as required by Finnish law, which had transposed Directive 2010/13 (the Audiovisual Media Services Directive).
In its judgment referred to it from the Supreme Administrative Court of Finland (Korkein hallinto-oikeus), the Court of Justice, accepted that the imposition of age classifications of content constitutes a measures that ‘is likely to hinder the access to the market’ of programmes originating in other Member States (para. 36), and thus, is a measure having equivalent effect of a quantitative restriction, prohibited by Article 34 TFEU.
However, it went on the accept that age classifications are an ‘overriding requirement of general interest’, given that ‘the protection of minors against audiovisual programmes the content of which is likely to harm their well-being and their development’ can potentially be a ground of justification (para. 41).
Notwithstanding that there was the Audiovisiual Media Services Directive, it did not cover everything, and that therefore, ‘in the absence of harmonisation at EU level of the rules applicable to the classification and labelling of audiovisual programmes, it is for the Member States to determine the level at which they intend to ensure the protection of minors against audiovisual programmes likely to harm their well-being and their development.’ (para. 56, emphasis added).
Therefore, the Court continued that, ‘a Member State may lawfully consider that the consumers present within its territory must be able to rely on indications of age limit and content which reflect the moral and cultural views which prevail in that Member State so that they may reach an informed decision as to whether a particular audiovisual programme is appropriate for the age of the minors for whom they are responsible.’ (para. 59, emphasis added).
On the killer point of there being no mutual recognition in this area, it ruled that ‘a Member State cannot be required to waive the requirement that audiovisual programmes marketed via an online store have previously been subject, in that Member State, to classification and labelling according to age limits for the purposes of protecting minors, on the ground that such a programme has already been subject, in another Member State, to classification and labelling for the same purpose’ (para. 60).
The judgment of the CJEU in Case C-662/21, Booky.fi, can be read here.