EN Official Journal of the European Union C 51/7

Opinion of the Committee of the Regions on the Proposal for a Directive of the European Parliament and of the Council amending Council Directive 89/552/EEC on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities

(2007/C 51/02)

THE COMMITTEE OF THE REGIONS

Having regard to the Proposal for a Directive of the European Parliament and of the Council amending Council Directive 89/552/EEC on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities (COM(2005) 646 final — 2005/0260 (COD));

Having regard to the Council decision of 7 February 2006 to request its opinion on this subject, under Article 265(1) of the Treaty establishing the European Community;

Having regard to the decision of its President of 16 February 2006 to instruct the Commission for Culture, Education and Research to draw up an opinion on this subject;

Having regard to Council Directive 89/552/EEC of 3 October 1989 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities, amended by Directive 97/36/EC of the European Parliament and of the Council, 30 June 1997;

Having regard to its opinion on the Communication from the Commission to the Council, the European Parliament, the European Economic and Social Committee and the Committee of the Regions on the Future of European Regulatory Audiovisual Policy (1) (CdR 67/2004 fin) (2);

Having regard to its opinion on the Fourth Report from the Commission on the application of Directive 89/553/EEC ‘Television Without Frontiers’ (3) (CdR 90/2003 fin) (4);

Having regard to the European Parliament resolution on ‘Television without Frontiers’ (2003/2033(INI));

Having regard to the fifth report from the Commission to the Council, the European Parliament, the European Economic and Social Committee and the Committee of the Regions on the application of Directive 89/552/EEC ‘Television without Frontiers’ (COM(2006) 49 final);

Having regard to the seventh communication from the Commission to the Council, the European Parliament, the European Economic and Social Committee and the Committee of the Regions on the application of Articles 4 and 5 of Directive 89/552/EEC ‘Television without Frontiers’, as amended by Directive 97/36/EC, for the period 2003-2004 (COM(2006) 459 final);

Having regard to the communication from the Commission to the Council, the European Parliament, the European Economic and Social Committee and the Committee of the Regions on reviewing the interoperability of digital interactive television services pursuant to Communication COM(2004) 541 of 30 July 2004 (COM(2006) 37 final);

Having regard to the communication from the Commission to the Council, the European Parliament, the European Economic and Social Committee and the Committee of the Regions ‘European electronic communications regulation and markets 2005 (11th report)’ (COM(2006) 68 final);

Having regard to the draft opinion adopted by the Commission for Culture, Education and Research on 20 June 2006 (CdR 106/2006 rev. 2), (Rapporteur: Mr Lambertz, First Minister of the Government of the Belgian German-speaking community (BE/PES));

Whereas:

1) Since the issue of the TVWF Directive in 1989 and its amendment in 1997 further technological advances have been made. Digitalisation and media convergence in particular have made it essential to adapt the current legal framework. In the future it will be possible to transmit digitalised communication messages using various mediums, thereby providing the recipients, through any terminal, with a comprehensive information and entertainment service.

2) The law must therefore take this development into account in order to avoid distortions of competition between traditional television broadcasters and other media services. The Committee of the Regions and the European Parliament have on more than once occasion expressed their support for the adaptation of the current TVWF Directive to meet structural changes and technological developments and called for the introduction of basic rules for all media services.

3) Because of the central role played by audiovisual media in preserving cultural diversity and developing a pluralistic society in Europe, the European legal framework must be adapted in a way that facilitates and promotes its continued progress. Collectively, the media play a key role in preserving regional and local cultural diversity and identity. Furthermore, the presence of regional und local media contributes to the dissemination of information of local interest and frequently also to the spread of minority languages.

4) The range of electronic services with which users today are continually confronted in various ways has changed the perception of commercial communication. It would therefore be a good idea to adapt the quantitative restrictions on advertising in the amended Directive in as far as this is appropriate and timely. However, specific qualitative restrictions must guarantee the editorial and programming independence of audiovisual media services, which is vital for the democratic development of informed opinion at national and regional level. The interests of young people and consumer protection interests should also be properly taken into account here.

adopted the following opinion at its 66th plenary session, held on 11 and 12 October 2006 (meeting of 11 October):

1. Views of the Committee of the Regions

The Committee of the Regions

Having regard to the scope of the Directive

1.1 welcomes the proposal to extend the scope of the Directive. In view of increasing convergence, it is appropriate to subject all media services to certain minimum standards as regards protection of minors and human dignity, to promote European and independent works, and to entitle them to use news extracts about events of public interest;

1.2 believes, however, that the Commission proposal does not go far enough in this respect and holds the view that, owing to the technical convergence, which increasingly is also leading to convergence of content the TVWF Directive should be developed in a way that makes it even more platform neutral, covering all electronically disseminated information using moving images;

1.3 recommends that media services that use moving images in addition to sound or text be subject to minimum standards in the area of minor protection and human dignity and not just to purely economic regulations such as the Directive on Electronic Commerce;

Having regard to the graduated regulation

1.4 Given the various choices and control options which the user has, regards the Commission's graduated regulation between linear and non-linear audiovisual media services as appropriate and recommends that all audiovisual media services be subject to certain basic standards;

Having regard to the State of transmission principle

1.5 welcomes the fact that the Commission continues to support the State of transmission principle; requests however that the receiving Member State has more effective options for dealing with a media service provider that directs its activities exclusively or predominantly at the territory of another Member State outside the State of transmission;

Having regard to the self-regulation mechanisms

1.6 welcomes the fact that the Commission supports the introduction of self-regulation mechanisms and is calling on Member States to promote regulation in this area;

1.7 recommends, however, that on grounds of competence, it should stop at this. For reasons of cultural diversity and subsidiarity, the actual provisions for self-regulation mechanisms in Member States and regions should not be spelt out;

Having regard to the right to use news extracts

1.8 supports the fact that in the future there will be a right to use news extracts, which aims to guarantee the flow of information across borders and unrestricted access to information. This will make a significant contribution to diversity of opinion and also to the flow of information across borders concerning significant events in other regions. This will also bring regulation concerned with television even closer into line with the relevant Council of Europe agreement;

1.9 reiterates its recommendation that the right to use news extracts must also be guaranteed in particular for operators broadcasting in minority languages;

Having regard to promoting European and independent productions

1.10 categorically welcomes the maintenance of the quota system to support European productions as these productions make a significant contribution to the preservation and development of regional identities; requests, however, a stricter and more uniform application of this system;

1.11 regards as necessary the obligation on Member States to ensure that providers of non-linear media services under their jurisdiction also promote, where practicable and by appropriate means, production of and access to European and independent works;

Having regard to rules on advertising

1.12 takes the view that the relaxation of the rules concerning product placements permitted for the first time by the draft Directive goes too far and clearly poses a considerable risk to editorial independence, even if the intention of Article 3h (1)(a) of the proposal is to rule out this possibility;

1.13 is of the opinion that the provisions of Article 11 on the gap between advertising breaks and Article 18 on the limitation of advertising time per hour are no longer appropriate and therefore suggests a greater liberalisation of the quantitative rules on advertising for providers of linear services;

1.14 believes that, in the event of provisions being deleted, a ban should be introduced, in the interests of youth and consumer protection, on advertisement breaks during children's and news programmes;

1.15 recommends that, on practical grounds, exceptions be permitted to the regulation stipulating that isolated advertising spots must be the exception;

Having regard to the independence of national regulatory authorities

1.16 supports the proposals for independent national regulatory authorities; believes, however, that in principle the organisation of media supervision should remain a matter for Member States and, where necessary, regions with jurisdiction, especially when their public service broadcasting is organised on an internal and pluralistic basis.

2. Recommendations of the Committee of the Regions

Recommendation 1

Point 2, new version of Article 1(a)

Text proposed by the Commission CoR Amendment (2) Article 1 is replaced by the following: ‘Article 1 For the purpose of this Directive: (a) “audiovisual media service” means a service as defined by Articles 49 and 50 of the Treaty the principal purpose of which is the provision of moving images with or without sound, 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 of the European Parliament and of the Council.’ (2) Article 1 is replaced by the following: ‘Article 1 For the purpose of this Directive: (a) “audiovisual media service” means a service as defined by Articles 49 and 50 of the Treaty the principal purpose of which is, among other things, the provision of moving images with or without sound, 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 of the European Parliament and of the Council, including accompanying teletext. It does not cover gambling activities which involve wagering a stake with monetary value in games of chance, including lotteries and betting transactions.’

Reason

Because of the technical convergence, which increasingly is also leading to convergence of content, it is not expedient to include only media services whose main purpose is to broadcast moving images with or without sound. Rather, in order to ensure undistorted competition, it would be appropriate if all media services that use moving images were subject to the minimum standards of Article 3 d-h). Reasons for this include, first of all, the fact that the boundaries between media services whose principal purpose is to provide moving images with or without sound and media services whose secondary purpose is also to provide moving images with or without sound (electronic press or radio broadcast over the Internet, for example) are becoming increasingly blurred. In addition, it is unfair that media services that use both moving images and sound or text equally or that focus on sound or text will not be subject to minimum standards in the area of minor protection and human dignity but only to purely economic regulations such as the Directive on Electronic Commerce.

The directive should also cover teletext accompanying audiovisual media services. Teletext is already covered by the directive currently in force. Therefore accompanying teletext should be explicitly mentioned in Article 1(a).

Because of the need to ensure public safety and order, prevent crime and protect consumers, the gambling industry is unlike any normal economic activity. In accordance with the provisions of the eCommerce Directive it is therefore necessary to make it clear in the directive on audiovisual media services that its provisions to facilitate cross-border activities do not apply to all games of chance. Games of chance are not expressly mentioned in the directive on audiovisual media services; however, it is not to be ruled out that gambling services may be covered by the directive through the intended extension of its scope to include non-linear audiovisual media services. Article 1(a) should therefore include a passage incorporating the wording of Article 1(5) of the eCommerce Directive, which lists exceptions that do not come under the directive's scope.

Recommendation 2

Point 2, new wording of Article 1(c)

Text proposed by the Commission CoR Amendment Article 1(c) ‘c) “television broadcasting” or “television broadcast” mean a linear audiovisual media service where a media service provider decides upon the moment in time when a specific programme is transmitted and establishes the programme schedule;’ Article 1 c) ‘c) “television broadcasting” or “television broadcast” mean a linear audiovisual media service where a media service provider decides upon the moment in time when a specific programme is transmitted and establishes the programme schedule; “linear service” (i.e. television broadcast): an audio-visual media service, which exists in the unencrypted or coded transmission of TV programmes for an indefinite number of possible viewers, to whom the same pictures are conveyed or transferred at the same time irrespective of the technology used for the picture transmission.’

Reason

A more precise definition of the term ‘linear service’ is possible by using the statements of the ECJ on the term ‘television programme’ in its Mediakabel Judgment. In addition, in order to draw a better distinction between the terms ‘linear’ and ‘non-linear service’, use should be made of the examples mentioned by the EU Commission in the explanatory statement of the draft directive itself (see point 5 of the executive summary in document COM 2005/646) and the examples of delimitation given in the recitals to its non-paper of February 2006

Recommendation 3

Point 2, new wording for Article 1(h)

Text proposed by the Commission CoR Amendment Article 1(h) ‘h) “surreptitious advertising” 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 broadcaster to serve advertising and might mislead the public as to its nature. Such representation is considered to be intentional in particular if it is done in return for payment or for similar consideration;’ Articles 1(h) ‘h) “surreptitious advertising” 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 broadcaster provider of an audio-visual media service to serve advertising and might mislead the public as to its nature. Such representation is considered to be intentional in particular if it is done in return for payment or for similar consideration or if an article, a service, a name, a trade mark or an activity are inadmissibly emphasised. An emphasis is inadmissible, if it is not justified by the editorial requirements of the programme, in particular for the representation of real life;’

Reason

In accordance with the extension of scope, the prohibition of surreptitious advertising should also apply to all providers of audio-visual media services, and not just to television broadcasters/ linear services. The word ‘broadcasters’ in Article 1(h) should thus be replaced by ‘provider of an audio-visual media service’.

The definition of prohibited surreptitious advertising in Article 1(h) should be made clearer by referring to point 33 of the interpreting communication of the European Commission on television advertising (characteristic of inadmissible emphasis). In this way, by expanding Article 3(h)(1), the strict conditions under which the supply of products for audio-visual productions is permissible will be described exactly.

Recommendation 4

Point 4, add a new paragraph c

Text proposed by the Commission CoR Amendment c) The following paragraph 4 is inserted into Article 2a: ‘In the case of non-linear services Member States can take measures under Article 3(3)-(5) and Article 12(3) of Directive 2000/31/EC of the European Parliament and of the Council (eCommerce Directive).’

Reason

The Committee of the Regions supports the country of origin principle as the basic principle of the directive. However, the Member States should also have the possibility of preventing the transmission of e.g. far right views. The Member State could act against such views in linear services on the basis of Article 2a(2)(a), but with non-linear services a regulatory loophole would develop, since the previous possibilities for action on the basis of the eCommerce Directive would be superseded by the directive on audio-visual media services. Therefore the Member States should be allowed the possibility of applying bans to non-linear services on the basis of the eCommerce Directive, as before. In this regard an express reference should be made in a new Article 2a(4), to the effect that the Member States may take action against non-linear services in accordance with Article 3(3) to (5) and Article 12(3) of the eCommerce Directive.

Recommendation 5

Point 5, new wording of Article 3(3)

Text proposed by the Commission CoR Amendment Article 3(3) Member States shall encourage co-regulatory regimes in the fields coordinated by this Directive. These regimes shall be such that they are broadly accepted by the main stakeholders and provide for effective enforcement. Article 3(3) Member States shall encourage systems for self-regulation and co-regulationory to implement and enforce the provisions of this Directive regimes in the fields coordinated by this Directive. These systems regimes shall be such that they are broadly accepted by the main stakeholders in each Member State and provide for effective enforcement.

Reason

Implementation of the Directive by means of self-regulation and co-regulation should continue to be possible. Therefore, the Directive's provisions, and possibly also the recitals, must make clear that self-regulation is possible, as long as the state retains ultimate responsibility and has adequate means of intervention. Moreover, it should be made clear that the phrase ‘broadly accepted’ relates to general acceptance at Member State level, and not Community level.

Recommendation 6

Point 6, modification of Article 3b

Text proposed by the Commission CoR Amendment ‘Article 3b 1. Member States shall ensure that, for the purposes of short news reports, broadcasters established in other Member States are not deprived of access on a fair, reasonable and non-discriminatory basis to events of high interest to the public which are transmitted by a broadcaster under their jurisdiction. 2. Short news reports may be chosen freely by the broadcasters from the transmitting broadcaster's signal with at least the identification of their source.’ ‘Article 3b 1. Member States shall ensure that, for the purposes of short news reports, broadcasters established in other Member States or whose programmes are broadcast in a minority language are not deprived of access on a fair, reasonable and non-discriminatory basis to events of high interest to the public which are transmitted by a broadcaster under their jurisdiction. 2. Short news reports may be chosen freely by the broadcasters from the transmitting broadcaster's signal with at least the identification of their source. Alternatively, broadcasters themselves can be granted access to the event for the purpose of transmission in accordance with Member State law.’

Reason

It is crucial for the sake of regional and cultural diversity that domestic television operators broadcasting in a minority language also have access to events of major public interest. This puts them on an equal footing with television broadcasters based in another Member State.

From the point of view of diversity of opinion, granting right of access merely to an existing signal seems insufficient. The Directive should, instead, allow the Member State to decide whether the right to broadcast short news reports should be granted in the form of a physical right of access, or, simply, by providing access to the signal. Art. 3b(2) should, therefore, also include the right to physical access, in accordance with the laws of each Member State.

Recommendation 7

Point 6, modification of Article 3e

Text proposed by the Commission CoR Amendment Article 3e Member States shall ensure by appropriate means that audiovisual media services and audiovisual commercial communications provided by providers under their jurisdiction do not contain any incitement to hatred based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation. Article 3e Member States shall ensure by appropriate means that audiovisual media services and audiovisual commercial communications provided by providers under their jurisdiction do not contain any incitement to hatred based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation, or in any other way violate human dignity.

Reason

In the interest of a unified standard of protection the text should be harmonised with the primary law provisions, namely Art. 13 of the EC Treaty. Moreover, protection of the paramount value of human dignity, as set out in Art.1 of the Charter of Fundamental Rights of the European Union, should definitely not be left out.

Recommendation 8

Point 6, insertion of Article 3h

Text proposed by the Commission CoR Amendment ‘Article 3h 1. Audiovisual media services that are sponsored or that contain product placement shall meet the following requirements: (…) (c) viewers must be clearly informed of the existence of a sponsorship agreement and/or the existence of product placement. Sponsored programmes must be clearly identified as such by the name, logo and/or any other symbol of the sponsor such as a reference to its product(s) or service(s) or a distinctive sign thereof in a appropriate way for programmes at the beginning, during and/or the end of the programmes. Programmes containing product placement must be appropriately identified at the start of the programme in order to avoid any confusion on the part of the viewer. (…) 4. News and current affairs shall not be sponsored and not contain product placement. Audiovisual media services for children and documentaries may not contain product placement.’ ‘Article 3h 1. Audiovisual media services that are sponsored or that contain product placement shall meet the following requirements: (…) (c) viewers must be clearly informed of the existence of a sponsorship agreement and/or the existence of product placement. Sponsored programmes must be clearly identified as such by the name, logo and/or any other symbol of the sponsor such as a reference to its product(s) or service(s) or a distinctive sign thereof in a appropriate way for programmes at the beginning, during and/or the end of the programmes. Programmes containing product placement must be appropriately clearly identified at the start, during and also at the end of the programme in order to avoid any confusion on the part of the viewer. (…) 4. News and current affairs shall not be sponsored and not contain product placement. Audiovisual media services for children and documentaries may not contain product placement. Product placements are permitted only in cinematographic works, films made for television and entertainment series not intended for children.’

Reason

In contrast to existing legislation, the draft Directive for the first time allows product placements to be included among audiovisual forms of commercial communication. This relaxation of what were originally strict requirements for the separation of advertisements and programmes goes too far. The risk that this poses for programme autonomy and editorial independence has not been sufficiently taken into account. The proposed Directive does rule out product placements for certain programmes, but this only applies to news programmes, current affairs programmes, children's and documentary films. This means that product placements are permitted, for example, in programmes about consumer protection or programmes that provide information on travel or particular products. The risks associated with this also cannot be ruled out by Article 3 h (1)(a) of the proposal. Past experience has shown that those who use product placements in a programme also have an influence on the design of this programme. On the other hand, it cannot be denied that traditional advertising has reached its limits and that for some time now there have been product placements on a large scale in certain formats, feature films for example. For this reason, a limited form of product placement in cinematographic works and films made for television is recommended. Films produced in the USA, for example, already regularly feature product placements.

In return for a partial authorisation of product placements, the provisions in Article 3 (1) (c) of the Commission proposal governing the identification of programmes containing such placements should be tightened by stipulating the continuous identification of the programmes in question so as to inform viewers who watch only part of the programme about the advertising practices being used. Under these circumstances it is then also possible to authorise product placing in entertainment series, too, provided they are not intended for children.

Recommendation 9

Point 10, new version of Article 11

Text proposed by the Commission CoR Amendment (10) Article 11 is replaced by the following: ‘Article 11 2. The transmission of films made for television (excluding series, serials, light entertainment programmes and documentaries), cinematographic works, children's programmes and news programmes may be interrupted by advertising and/or teleshopping once for each period of 35 minutes. No advertising or teleshopping may be inserted during religious services.’ (10) Article 11 is replaced by the following: ‘Article 11 2. The transmission of films made for television (excluding series, serials, light entertainment programmes and documentaries), and cinematographic works, children's programmes and news programmes may be interrupted by advertising and/or teleshopping once for each period of 35 30 minutes. No advertising or teleshopping may be inserted during religious services, children's programmes and news programmes.’

Reason

The proposed easing of the restrictions would give media service-providers greater flexibility in designing their programmes. However, it is essential to amend the Commission proposal by including a ban on advertising spots in children's and news programmes as well. In the case of children's programmes, a ban has been proposed for the sake of the protection of minors, as children are still not able to properly distinguish advertising from programmes or to evaluate advertising messages. A ban has also been proposed during news programmes because of their special role in the development of independent thought.

Recommendation 10

Point 20, modification of Article 23b

Text proposed by the Commission CoR Amendment (20) The following Article 23b is inserted: ‘Article 23 b 1. Member States shall guarantee the independence of national regulatory authorities and ensure that they exercise their powers impartially and transparently. 2. National regulatory authorities shall provide each other and the Commission with the information necessary for the application of the provisions of this Directive.’ (20) The following Article 23b is inserted: ‘Article 23 b 1. Without prejudice to their regulations on public-service media service providers, Member States shall guarantee the independence of national and, where they exist, regional regulatory authorities and ensure that they exercise their powers impartially and transparently. 2. National regulatory authorities shall provide each other and the Commission with the information necessary for the application of the provisions of this Directive.’

Reason

Although the independence of national regulatory authorities is of fundamental importance and should be welcomed, the organisation of media supervision must remain a matter for Member States and, where necessary, regions with jurisdiction. Furthermore, Article 23 b must not affect the position of public-service broadcasting and stipulate external regulation of all broadcasters. This is especially important for the various Member States and regions which, under their constitution, organise public service broadcasting on an internal and pluralistic basis, regulate it internally in other words, and subject it to only limited legal supervision by the state.

The guarantee of impartiality and transparency should also be extended to any regional regulatory authorities that are or could be established in regions with legislative powers in the field of communications, or in Member States with forms of federalism or autonomous communities. This does not affect the powers of the national authorities; it aims merely to extend the same guarantees of impartiality and transparency to the local level, in compliance with the principle of subsidiarity as enshrined in the Maastricht Treaty.

Brussels, 11 October 2006. The President of the Committee of the Regions Michel DELEBARRE

(1) COM(2003) 784 final.

(2) OJ C 318 of 22.12.2004, p. 30.

(3) COM(2002) 778 final.

(4) OJ C 256 of 24.10.2003, p. 85.