prop · GX03115 · 2010-03-23 00:00:00 — Whereas such abolition must go hand in hand with coordination of the applicable laws; whereas this coordination must be aimed at facilitating the pursuit of the professional activities concerned and, more generally, the free movement of information and ideas within the Community; Whereas it is consequently necessary and sufficient that all broadcasts comply with the law of from which they emanate; Whereas this Directive lays down the minimum rules needed to guarantee freedom of transmission in broadcasting; whereas, therefore, it does not affect the responsibility of the Member States and their authorities with regard to the organization including the systems of licensing, administrative authorization or taxation financing and the content of programmes; whereas the independence of cultural devel- opments in the Member States and the preservation of cultural diversity in the Community therefore remain unaffected; Whereas it is necessary, in the common market, that all broadcasts emanating from and intended for reception within the Community and in particular those intended for reception in another , should respect the law of the originating applicable to broadcasts intended for reception by the public in that and the provisions of this Directive; Whereas the requirement that the originating should verify that broadcasts comply with national law as coordinated by this Directive is sufficient under Community law to ensure free movement of broadcasts without secondary control on the same grounds in the receiving Member States; whereas, however, the receiving may, exceptionally and under specific conditions provisionally suspend the retransmission of televised broadcasts; Whereas it is essential for the Member States to ensure the prevention of any acts which may prove detrimental to freedom of movement and trade in television programmes or which may promote the creation of dominant positions which would lead to restrictions on pluralism and freedom of televised information and of the information sector as a whole; Whereas this Directive, being confined specifically to television broad- casting rules, is without prejudice to existing or future Community acts of harmonization, in particular to satisfy mandatory requirements concerning the protection of consumers and the fairness of commercial transactions and competition; Whereas co-ordination is nevertheless needed to make it easier for persons and industries producing programmes having a cultural objective to take up and pursue their activities; Whereas minimum requirements in respect of all public or private Community television programmes for European audio-visual productions have been a means of promoting production, independent production and distribution in the abovementioned industries and are complementary to other instruments which are already or will be proposed to favour the same objective; Whereas it is therefore necessary to promote markets of sufficient size for television productions in the Member States to recover necessary investments not only by establishing common rules opening up national 1989L0552 EN 19.12.2007 002.001 4 markets but also by envisaging for European productions where prac- ticable and by appropriate means a majority proportion in television programmes of all Member States; whereas, in order to allow the moni- toring of the application of these rules and the pursuit of the objectives, Member States will provide the Commission with a report on the appli- cation of the proportions reserved for European works and independent productions in this Directive; whereas for the calculation of such proportions account should be taken of the specific situation of the Hellenic Republic and the Portuguese Republic; whereas the Commission must inform the other Member States of these reports accompanied, where appropriate by an opinion taking account of, in particular, progress achieved in relation to previous years, the share of first broadcasts in the programming, the particular circumstances of new television broadcasters and the specific situation of countries with a low audio-visual production capacity or restricted language area; Whereas for these purposes European works should be defined without prejudice to the possibility of Member States laying down a more detailed definition as regards television broadcasters under their jurisdiction in accordance with Article 3 (1) in compliance with Community law and account being taken of the objectives of this Directive; Whereas it is important to seek appropriate instruments and procedures in accordance with Community law in order to promote the implemen- tation of these objectives with a view to adopting suitable measures to encourage the activity and development of European audio-visual production and distribution, particularly in countries with a low production capacity or restricted language area; Whereas national support schemes for the development of European production may be applied in so far as they comply with Community law; Whereas a commitment, where practicable, to a certain proportion of broadcasts for independent productions, created by producers who are independent of broadcasters, will stimulate new sources of television production, especially the creation of small and medium-sized enter- prises; whereas it will offer new opportunities and outlets to the marketing of creative talents of employment of cultural professions and employees in the cultural field; whereas the definition of the concept of independent producer by the Member States should take account of that objective by giving due consideration to small and medium-sized producers and making it possible to authorize financial participation by the coproduction subsidiaries of television organi- zations; Whereas measures are necessary for Member States to ensure that a certain period elapses between the first cinema showing of a work and the first television showing; Whereas in order to allow for an policy in favour of a specific language, Member States remain free to lay down more detailed or stricter rules in particular on the basis of language criteria, as long as these rules are in conformity with Community law, and in particular are not applicable to the retransmission of broadcasts originating in other Member States; Whereas in order to ensure that the interests of consumers as television viewers are fully and properly protected, it is essential for television advertising to be subject to a certain number of minimum rules and standards and that the Member States must maintain the right to set more detailed or stricter rules and in certain circumstances to lay down different conditions for television broadcasters under their jurisdiction; Whereas Member States, with due regard to Community law and in relation to broadcasts intended solely for the national territory which may not be received, directly or indirectly, in one or more Member States, must be able to lay down different conditions for the insertion 1989L0552 EN 19.12.2007 002.001 5 of advertising and different limits for the volume of advertising in order to facilitate these particular broadcasts; Whereas it is necessary to prohibit all television advertising promoting cigarettes and other tobacco products including indirect forms of adver- tising which, whilst not directly mentioning the tobacco product, seek to circumvent the ban on advertising by using brand names, symbols or other distinctive features of tobacco products or of undertakings whose known or main activities include the production or sale of such products; Whereas it is equally necessary to prohibit all television advertising for medicinal products and treatment available only on prescription in the within whose jurisdiction the broadcaster falls and to introduce strict criteria relating to the television advertising of alcoholic products; Whereas in view of the growing importance of sponsorship in the financing of programmes, appropriate rules should be laid down; Whereas it is, furthermore, necessary to introduce rules to protect the physical, mental and moral development of minors in programmes and in television advertising; Whereas although television broadcasters are normally bound to ensure that programmes present facts and events fairly, it is nevertheless important that they should be subject to specific obligations with respect to the right of reply or equivalent remedies so that any person whose legitimate interests have been damaged by an assertion made in the course of a broadcast television programme may effectively exercise such right or remedy. HAS ADOPTED THIS DIRECTIVE: For the purpose of this Directive: (a)audiovisual media service means: a service as defined by Articles 49 and 50 of the Treaty which is under the editorial responsibility of a media service provider and the principal purpose of which is the provision of programmes in order to inform, entertain or educate, to the general public by electronic communications networks within the meaning of Article 2(a) of Directive 2002/21/EC. Such an audiovisual media service is either a television broadcast as defined in point (e) of this Article or an on-demand audiovisual media service as defined in point (g) of this Article, audiovisual commercial communication; (b)programme means a set of moving images with or without sound constituting an individual item within a schedule or a catalogue established by a media service provider and whose form and content is comparable to the form and content of television broad- casting. Examples of programmes include feature-length films, sports events, situation comedies, documentaries, childrens programmes and original drama; (c)editorial responsibility means the exercise of effective control both over the selection of the programmes and over their organi- 1989L0552 EN 19.12.2007 002.001 6 sation either in a chronological schedule, in the case of television broadcasts, or in a catalogue, in the case of on-demand audiovisual media services. Editorial responsibility does not necessarily imply any legal liability under national law for the content or the services provided; (d)media service provider means the natural or legal person who has editorial responsibility for the choice of the audiovisual content of the audiovisual media service and determines the in which it is organised; (e)television broadcasting or television broadcast (i.e. audiovisual media service) means an audiovisual media service provided by a media service provider for simultaneous viewing of programmes on the basis of a programme schedule; (f)broadcaster means a media service provider of television broadcasts; (g)on-demand audiovisual media service (i.e. a non-linear audio- visual media service) means an audiovisual media service provided by a media service provider for the viewing of programmes at the moment chosen by the user and at his individual request on the basis of a catalogue of programmes selected by the media service provider; (h)audiovisual commercial communication means images with or without sound which are designed to promote, directly or indirectly, the goods, services or image of a natural or legal entity pursuing an economic activity. Such images accompany or are included in a programme in return for payment or for similar consideration or for self-promotional purposes. Forms of audio- visual commercial communication include, inter alia, television advertising, sponsorship, teleshopping and product placement; (i)television advertising means any form of announcement broadcast whether in return for payment or for similar consideration or broadcast for self-promotional purposes by a public or private undertaking or natural person in connection with a trade, business, craft or profession in order to promote the supply of goods or services, including immovable property, rights and obli- gations, in return for payment; (j)surreptitious audiovisual commercial communication means 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 media service provider to serve as advertising and might mislead the public as to its nature. Such representation shall, in particular, be considered as intentional if it is done in return for payment or for similar consideration; (k)sponsorship means any contribution made by a public or private undertaking or natural person not engaged in providing audiovisual media services or in the production of audiovisual works, to the financing of audiovisual media services or programmes with a view to promoting its name, its trade mark, its image, its activities or its products; (l)teleshopping means direct offers broadcast to the public with a view to the supply of goods or services, including immovable property, rights and obligations, in return for payment; (m)product placement means any form of audiovisual commercial communication consisting of the inclusion of or reference to a product, a service or the trade mark thereof so that it is featured within a programme, in return for payment or for similar consid- eration; (n)(i) European works means the following: 1989L0552 EN 19.12.2007 002.001 7 works originating in Member States, works originating in European third States party to Convention on of the conditions of point (ii), works co-produced within the framework of agreements related to the audiovisual sector concluded between the Community and third countries and fulfilling the conditions defined in each of those agreements, application of the provisions of the second and third indents shall be conditional on works originating in Member States not being the subject of discriminatory measures in the third country concerned; (ii)The works referred to in the first and second indents of point (i) are works mainly made with authors and workers residing in one or more of the States referred to in the first and second indents of point (i) provided that they comply with one of the following three conditions: they are made by one or more producers established in one or more of those States, or production of the works is supervised and actually controlled by one or more producers established in one or more of those States, or the contribution of co-producers of those States to the total co-production costs is preponderant and the co-production is not controlled by one or more producers established outside those States; (iii)Works that are not European works within the meaning of point (i) but that are produced within the framework of bilateral co-production treaties concluded between Member States and third countries shall be deemed to be European works provided that the co-producers from the Community supply a majority share of the total cost of production and that the production is not controlled by one or more producers established outside the territory of the Member States. 1.Each ensure that all audiovisual media services transmitted by media service providers under its jurisdiction comply with the rules of the system of law applicable to audiovisual media services intended for the public in that . 2.For the purposes of this Directive, the media service providers under the jurisdiction of a are those: (a)established in that in accordance with paragraph 3; or (b)to whom paragraph 4 applies. 3.For the purposes of this Directive, a media service provider shall be deemed to be established in a in the following cases: (a)the media service provider has its head office in that and the editorial decisions about the audiovisual media service are taken in that Member State; 1989L0552 EN 19.12.2007 002.001 8 (b)if a media service provider has its head office in one but editorial decisions on the audiovisual media service are taken in another , it shall be deemed to be established in the where a significant part of the workforce involved in the pursuit of the audiovisual media service activity operates. If a significant part of the workforce involved in the pursuit of the audiovisual media service activity operates in each of those Member States, the media service provider shall be deemed to be established in the where it has its head office. If a significant part of the workforce involved in the pursuit of the audiovisual media service activity operates in neither of those Member States, the media service provider shall be deemed to be established in the where it first began its activity in accordance with the law of that , provided that it maintains a stable and effective link with the economy of that Member State; (c)if a media service provider has its head office in a but decisions on the audiovisual media service are taken in a third country, or vice-versa, it shall be deemed to be established in the concerned, provided that a significant part of the workforce involved in the pursuit of the audiovisual media service activity operates in that . 4.Media service providers to whom the provisions of paragraph 3 are not applicable shall be deemed to be under the jurisdiction of a in the following cases: (a)they use a satellite up-link situated in that Member State; (b)although they do not use a satellite up-link situated in that , they use satellite capacity appertaining to that . 5.If the question as to which has jurisdiction cannot be determined in accordance with paragraphs 3 and 4, the competent be that in which the media service provider is established within the meaning of Articles 43 to 48 of the Treaty. 6.This Directive does not apply to audiovisual media services intended exclusively for reception in third countries and which are not received with standard consumer equipment directly or indirectly by the public in one or more Member States. 1.Member States shall ensure freedom of reception and shall not restrict retransmissions on their territory of audiovisual media services from other Member States for reasons which fall within the fields coor- dinated by this Directive. 2.In respect of television broadcasting, Member States may provi- sionally derogate from paragraph 1 if the following conditions are fulfilled: (a)a television broadcast coming from another mani- festly, seriously and gravely infringes Article 22(1) or (2) and/or Article 3(b); (b)during the previous 12 months, the broadcaster has infringed the provision(s) referred to in (a) on at least two prior occasions; (c)the concerned has notified the broadcaster and the Commission in writing of the alleged infringements and of the measures it intends to take should any such infringement occur again; (d)consultations with the transmitting and the Commission have not produced an amicable settlement within 15 1989L0552 EN 19.12.2007 002.001 9 days of the notification provided for in (c), and the alleged infrin- gement persists. The Commission shall, within two months following notification of the measures taken by the , take a decision on whether the measures are compatible with Community law. If it decides that they are not, the will be required to put an end to the measures in question as a matter of urgency. Paragraph 2 shall be without prejudice to the application of any procedure, remedy or sanction to the infringements in question in the which has jurisdiction over the broadcaster concerned. 4.In respect of on-demand audiovisual media services, Member States may take measures to derogate from paragraph 1 in respect of a given service if the following conditions are fulfilled: (a)the measures are: (i)necessary for one of the following reasons: public policy, in particular the prevention, investigation, detection and prosecution of criminal offences, including the protection of minors and the fight against any inci- tement to hatred on grounds of race, sex, religion or nationality, and violations of human dignity concerning individual persons, the protection of public health, public security, including the safeguarding of national security and defence, the protection of consumers, including investors; (ii)taken against an on-demand audiovisual media service which prejudices the objectives referred to in point (i) or which presents a serious and grave risk of prejudice to those objectives; (iii)proportionate to those objectives; (b)before taking the measures in question and without prejudice to court proceedings, including preliminary proceedings and acts carried out in the framework of a criminal investigation, the has: asked the under whose jurisdiction the media service provider falls to take measures and the latter did not take such measures, or they were inadequate, notified the Commission and the under whose jurisdiction the media service provider falls of its intention to take such measures. 5.Member States may, in the case of urgency, derogate from the conditions stipulated in paragraph 4(b). Where this is the case, the measures shall be notified in the shortest possible time to the Commission and to the under whose jurisdiction the media service provider falls, indicating the reasons for which the considers that there is urgency. 6.Without prejudice to the Member State's possibility of proceeding with the measures referred to in paragraphs 4 and 5, the Commission shall examine the compatibility of the notified measures with Community law in the shortest possible time. Where it comes to the conclusion that the measures are incompatible with Community law, the Commission shall ask the in question to refrain from taking any proposed measures or urgently to put an end to the measures in question. 1989L0552 EN 19.12.2007 002.001 10 1.Member States shall remain free to require media service providers under their jurisdiction to comply with more detailed or stricter rules in the fields coordinated by this Directive provided that such rules are in compliance with Community law. 2.In cases where a Member State: (a)has exercised its freedom under paragraph 1 to adopt more detailed or stricter rules of general public interest; and (b)assesses that a broadcaster under the jurisdiction of another provides a television broadcast which is or mostly directed towards its territory; it may contact the having jurisdiction with a view to achieving a mutually satisfactory solution to any problems posed. On receipt of a substantiated request by the first , the having jurisdiction shall request the broadcaster to comply with the rules of general public interest in question. The having jurisdiction shall inform the first of the results obtained following this request within two months. Either may invite the contact committee established under Article 23a to examine the case. 3.Where the first assesses: (a)that the results achieved through the application of paragraph 2 are not satisfactory; and (b)that the broadcaster in question has established itself in the having jurisdiction in order to circumvent the stricter rules, in the fields coordinated by this Directive, which would be applicable to it if it were established within the first , it may adopt appropriate measures against the broadcaster concerned. Such measures shall be objectively necessary, applied in a non-discri- minatory and be proportionate to the objectives which they pursue. 4.A may take measures pursuant to paragraph 3 only if the following conditions are met: (a)it has notified the Commission and the in which the broadcaster is established of its intention to take such measures while substantiating the grounds on which it bases its assessment; and (b)the Commission has decided that the measures are compatible with Community law, and in particular that assessments made by the taking these measures under paragraphs 2 and 3 are correctly founded. 5.The Commission shall decide within three months following the notification provided for in paragraph 4(a).