Proposal for a European Parliament and Council Directive 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

(95/C 185/05)

(Text with EEA relevance)

COM(95) 86 final - 95/0074(COD)

(Submitted by the Commission on 31 May 1995)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular Articles 57 (2) and 66 thereof,

Having regard to the proposal from the Commission,

Having regard to the opinion of the Economic and Social Committee,

Acting in accordance with the procedure referred to in Article 189b of the Treaty,

Whereas Council Directive 89/552/EEC (1) constitutes the legal framework for broadcasting in the internal market;

Whereas Article 26 of Directive 89/552/EEC states that the Commission shall, no later than the end of the fifth year after the date of adoption of the Directive, submit to the European Parliament and the Economic and Social Committee a report on the application of the Directive and, if necessary, make further proposals to adapt it to developments in the field of television broadcasting;

Whereas the application of Directive 89/552/EEC and the report on its application have revealed the need to clarify certain definitions or obligations on Member States under this Directive;

Whereas the Commission in its communication of 19 July 1994 entitled 'Europe's way to the information society. An action plan` underlined the importance of a regulatory framework applying to the content of audiovisual services which would help to safeguard the free movement of such services in the Community and be responsive to the opportunities for growth in this sector opened up by new technologies, while at the same time taking into account the specific nature, in particular the cultural and sociological impact, of audiovisual programmes, whatever their mode of transmission;

Whereas the Council welcomed this action plan at its 1787th meeting on 28 September 1994 and stressed the need to improve the competitiveness of the European audiovisual industry;

Whereas the Heads of State and Government meeting at the European Council in Essen on 9 and 10 December 1994 called on the Commission to present a proposal for a revision of Directive 89/552/EEC before their next meeting;

Whereas the application of Directive 89/552/EEC has revealed the need to clarify the concept of jurisdiction as applied specifically to the audiovisual sector; whereas, in view of the case-law of the Court of Justice of the European Communities, the establishment criterion should be made the principal criterion determining the jurisdiction of a particular Member State;

Whereas, the concept of establishment, according to the criteria laid down by the Court of Justice in its judgment of 25 July 1991 in Factortame (2), involves the actual pursuit of an economic activity through a fixed establishment for an indefinite period;

Whereas the establishment of a television broadcasting organization, for the purpose of Directive 89/552/EEC, as amended by this Directive, may be determined by a series of practical criteria such as the location of the head office of the provider of services, the place where decisions on programming policy are usually taken, the place where the programme to be broadcast to the public is finally mixed and processed, provided that a significant proportion of the workforce required for the pursuit of the television broadcasting activity is located in the same Member State;

Whereas the Court of Justice has constantly held (1) that a Member State retains the right to take measures against a television broadcasting organization that is established in another Member State but directs all or most of its activity to the territory of the first Member State if the choice of establishment was made with a view to evading the legislation that would have applied to the organization had it been established in the territory of the first Member State;

Whereas any interested party in the Community must be able to assert its rights in the competent courts of the Member State with jurisdiction over the television broadcasting organization that is failing to comply with the national provisions arising out of the application of this Directive;

Whereas Member States are free to take whatever measures they deem appropriate with regard to broadcasts coming from third countries, and which do not satisfy the conditions laid down in Article 2 of Directive 89/552/EEC, provided they comply with Community law and the international obligations of the Community;

Whereas in order to eliminate the obstacles arising from differences in national legislation on the promotion of European works, Directive 89/552/EEC contains provisions aimed at harmonizing these regulations; whereas those provisions which, in general, permit the liberalization of trade must contain provisions harmonizing the conditions of competition;

Whereas, moreover, Article 128 (4) of the Treaty requires the Community to take cultural aspects into account in its action under other provisions of the Treaty;

Whereas the Green Paper on 'Strategy options to strengthen the European programme industry in the context of the audiovisual policy of the European Union` adopted by the Commission on 7 April 1994, emphasizes in particular the need to step up measures to promote European works in order to further the development of the sector;

Whereas, in addition to the considerations cited above, it is necessary to create conditions for improving the competitiveness of the programme industry; whereas the communication on the application of Articles 4 and 5 of Directive 89/552/EEC, adopted by the Commission on 3 March 1994 pursuant to Article 4 (3), shows that the measures to promote European works can contribute to such an improvement, but that they need to be modified to take account of developments in the field of television broadcasting;

Whereas, if Article 4 of Directive 89/552/EEC, as amended by this Directive, is effectively implemented over a 10-year period, it should be possible, given the impact of the financial instruments available to the Community and the Member States, to achieve the objective of strengthening the European programme industry;

Whereas it is necessary to ensure the effective application of such measures throughout the Community in order to preserve free and fair competition between firms in the same industry; whereas the application of such measures could help to reinforce mutual trust between Member States;

Whereas, at the end of the 10-year period, any national measures in this field must not interfere with the principle of free circulation of services by restricting the reception or retransmission of television broadcasts from other Member States;

Whereas the proportions of European works must be achieved taking economic realities into account; whereas, therefore, it is necessary to introduce a progressive system for achieving this objective;

Whereas account should be taken of the specific nature of transmissions broadcast only in a language other than those of the Member States;

Whereas the questions of specific time scales for each type of television showing of cinematographic works is primarily a matter to be settled by individual contracts; whereas, however, in the absence of agreements between the interested parties or professionals concerned, a schedule tailored to the needs at each stage in the showing of such works, should be drawn up;

Whereas it is important to facilitate the development of teleshopping, an activity with an economic importance for operators as a whole and a genuine outlet for goods and services within the Community, by modifying the rules on transmission time; whereas, to ensure the full protection of consumer interests, teleshopping should be governed by a number of minimum standards regulating the form and content of broadcasts;

Whereas it is necessary to clarify the rules for the protection of the physical, mental and moral development of minors; whereas the establishment of a clear distinction between programmes that are subject to an absolute ban and those that may be authorized subject to appropriate technical means should satisfy concern about the public interest expressed by Member States and the Community;

Whereas the Court of Justice has constantly held (1) that the concept services, as referred to in Articles 59 and 60 of the EEC Treaty, embraces the broadcasting of television programmes, including transmission through the intermediary of cable operators, whereas in accordance with Article 3b of the Treaty action by the Community should not go beyond what is necessary to achieve its objectives in the sphere of television broadcasting, whereas the principle that Member States are free to lay down stricter or more detailed rules for the broadcasters under their jurisdiction should be reaffirmed;

Whereas Article B of the Treaty on European Union states that one of the objectives the Union shall set itself is to maintain in full the 'acquis communautaire`,

HAVE ADOPTED THIS DIRECTIVE:

Article 1

Directive 89/552/EEC is amended as follows:

1. Article 1 is amended as follows:

(a) point (b) is replaced by the following:

'(b) "television advertising" means any form of announcement broadcast in return for payment or for similar consideration by a public or private undertaking in connection with a trade, business, craft or profession in order to promote the supply of goods or services, including immovable property, or rights and obligations, in return for payment. It does not include teleshopping;`

(b) the following point (e) is added:

'(e) "teleshopping" means television programmes and spots containing direct offers to the public with a view to the sale, purchase or rental of products or with a view to the supply of services in return for payment;`

2. Article 2 is replaced by the following:

'Article 2

1. Each Member State shall ensure that all television broadcasts transmitted by broadcasters under its jurisdiction comply with the rules of the system of law applicable to broadcasts intended for the public in that Member State.

2. The broadcasters under the jurisdiction of a Member State are those established in the territory of that Member State, in which they must have a fixed establishment and actually pursue an economic activity.

3. Broadcasters established outside the territory of the Community shall also be under the jurisdiction of a Member State if they satisfy one of the following conditions:

(a) they use a frequency granted by that Member State;

(b) although they do not use a frequency granted by a Member State, they do use a satellite capacity granted by that Member State;

(c) although they use neither a frequency nor a satellite capacity granted by a Member State, they do use a satellite up-link situated in that Member State.

4. This Directive shall not apply to broadcasts intended exclusively for reception in third countries, and which are not received directly or indirectly by the public in one or more Member States.`

3. The following Article 2a is inserted:

'Article 2a

Member States shall ensure freedom of reception and shall not restrict retransmission on their territory of television broadcasts from other Member States for reasons which fall within the fields coordinated by this Directive. They may, provisionally, take appropriate measures to restrict reception and/or suspend retransmission of television broadcasts if the following conditions are fulfilled:

(a) a television broadcast coming from another Member State manifestly, seriously and gravely infringes Article 22 and/or Article 22a;

(b) during the previous 12 months, the broadcaster has infringed the same provision(s) on at least two prior occassions;

(c) the Member State concerned has notified the broadcaster and the Commission in writing of the alleged infringements and of its intention to take measures to restrict reception and/or suspend retransmission should any such infringement occur again;

(d) consultations with the transmitting State and the Commission have not produced an amicable settlement within 15 days of the notification provided for in point (c), and the alleged infringement persists.

The Commission shall, within no more than two months following notification of the measure taken by the Member State, take a decision on whether the measure is compatible with Community law. If it decides that it is not, the Member State will be required to put an end to the measure in question as a matter of urgency.

The provision referred to in the first paragraph is without prejudice to the application of any procedure, remedy or sanction to the infringements in question in the Member State which has juridiction over the broadcaster concerned.`

4. Article 3 is replaced by the following:

'Article 3

1. Member States shall remain free to require television broadcasters under their jurisdiction to comply with more detailed or stricter rules in the areas covered by this Directive. These rules, which must be compatible with Community law, may concern, inter alia:

- the achievement of language policy goals,

- the taking into account of the public interest in terms of television's role as a provider of information, education, culture and entertainment and the need to safeguard pluralism in the information industry and the media.

2. Member States shall, by appropriate means, ensure, within the framework of their legislation, that television broadcasters under their jurisdiction comply with the provisions of this Directive.

Each Member State shall determine the penalties applicable to television broadcasting organizations under their jurisdiction who do not comply with provisions adopted for the implementation of this Directive, which penalties shall be sufficient to enforce compliance.

3. Member States shall also provide in their legislation, as regards television broadcasting organizations under their jurisdiction, for the possibility of invoking interim measures aimed at remedying an infringement of the provisions of this Directive, if necessary by suspending the broadcasting licence.`

5. Article 4 is replaced by the following:

'Article 4

1. Member States shall, by appropriate means, ensure that broadcasters reserve for European works, within the meaning of Article 6, a majority proportion of their transmission time, excluding the time appointed to news, sports events, games, advertising, teletext and teleshopping services.

2. In the case of channels which devote at least 80 % of their transmission time, excluding the time appointed to advertising and teleshopping, to cinematographic works, drama, documentaries or animation, Member States shall allow television broadcasting organizations to choose between complying with the first paragraph or allocating 25 % of their programming budget to European works within the meaning of Article 6. For the purposes of this Directive, "programming budget" means the accounting cost of acquiring, commissioning, producing and co-producing all those programmes broadcast by the channel in question in any given year.

3. The proportions referred to in paragraphs 1 and 2 shall be attained progressively, in stages, no later than three years after the date of the first broadcast by the channel in question.

4. Channels broadcasting entirely in a language other than those of the Member States are not covered by the provisions of this Article or those of Article 5.

5. Member States shall provide the Commission with a report on the application of this Article and Article 5 every two years from the date of adoption of this Directive.

That report shall in particular include a statistical statement on the achievement of the proportion referred to in this Article and Article 5 for each of the channels falling within the jurisdiction of the Member State concerned. Member States shall notify the Commission of the reasons for the failure to attain those proportions and the measures they are taking in each case to ensure that the television broadcasting organization does actually attain them.

The Commission shall inform the other Member States and the European Parliament of the reports, which shall be accompanied, where appropriate, by an opinion. The Commission shall ensure the application of this Article and Article 5 in accordance with the provisions of the Treaty. The Commission may take account in its opinion, in particular, of progress achieved in relation to previous years, the share of first broadcast works in the programming, the particular circumstances of new television broadcasters and the specific situation of countries with a low audiovisual production capacity or restricted language area.`

6. Article 5 is replaced by the following:

'Article 5

Member States shall ensure, by appropriate means, that broadcasters reserve at least 10 % of their transmission time, excluding the time appointed to news, sports events, games, advertising, teleshopping and teletext services, or alternately, at the discretion of the Member States, at least 10 % of their programming budget, for European works created by producers who are independent of broadcasters.

This proportion must be achieved by earmarking at least 50 % for recent works, that is to say works transmitted within five years of their production.`

7. Article 6 is amended as follows:

(a) in paragraph 1, point (a) is replaced by the following:

'(a) works originating from Member States`;

(b) paragraph 3 is replaced by the following:

'3. The works referred to in point (c) of paragraph 1 are works made exclusively or in co-production with producers established in one or more Member States by producers established in one or more European third countries with which the Community has concluded agreements relating to the audiovisual sector, if those works are mainly made with authors and workers residing in one or more European States.`;

(c) the following paragraph 3a is inserted:

'3a. Works that are not European works within the meaning of paragraph 1 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 Community co-producers supply a majority share of the total cost of the production and that the production is not controlled by one or more producers established outside the territory of the Member States.`;

(d) in paragraph 4, the words 'and paragraph 3a` are added after the words 'within the meaning of paragraph 1`.

8. Article 7 is replaced by the following:

'Article 7

Rightsholders and broadcasters shall agree time limits for broadcasting cinematographic works. In the absence of such agreements, television broadcasting organizations shall not broadcast any cinematographic work until the following periods have elapsed since the work was first shown in cinemas in one of the Member States:

(a) six months for pay-per-view services;

(b) 12 months for pay-television services other than those referred to in (a);

(c) 18 months for services other than those referred to in (a) and (b).

Member States shall ensure that the television broadcasting organizations under their jurisdiction comply with these provisions.`

9. Article 8 is deleted.

10. The title of Chapter IV is replaced by the following:

'Television advertising and sponsorship, and teleshopping`.

11. In Article 11, paragraph 3 is replaced by the following:

'3. The transmission of feature films may be interrupted once for each complete period of 45 minutes. A further interruption is allowed if their scheduled duration is at least 20 minutes longer than two or more complete periods of 45 minutes.`

12. In Article 12, the introductory words are replaced by the following:

'Television advertising and teleshopping shall not:`.

13. Article 13 and 14 are replaced by the following:

'Article 13

All forms of television advertising and teleshopping for cigarettes and other tobacco products shall be prohibited.

Article 14

Television advertising and teleshopping for medicinal products and medical treatment available only on prescription in the Member State within whose jurisdiction the broadcaster falls shall be prohibited.`

14. Article 15 is amended as follows:

(a) The introductory words are replaced by the following:

'Television advertising and teleshopping for alcoholic beverages shall comply with the following criteria:`;

(b) Points (a) to (f) are replaced by the following:

'(a) they may not be aimed specifically at minors or, in particular, depict minors consuming such beverages;

(b) they shall not link the consumption of alcohol to enhanced physical performance or to driving;

(c) they shall not create the impression that the consumption of alcohol contributes towards social or sexual success;

(d) they shall not claim that alcohol has therapeutic qualities or that it is a stimulant, a sedative or a means of resolving personal conflicts;

(e) they shall not encourage immoderate consumption of alcohol or present abstinence or moderation in a negative light;

(f) they shall not place emphasis on high alcoholic content as being a positive quality of the beverages.`

15. Article 16 is amended as follows:

(a) The introductory words are replaced by the following:

'Television advertising and teleshopping shall not cause moral or physical detriment to minors and shall therefore comply with the following criteria for their protection:`.

(b) Points (a) to (d) are replaced by the following:

'(a) they shall not directly exhort minors to buy a product or a service by exploiting their inexperience or credulity;

(b) they shall not directly encourage minors to persuade their parents or others to purchase the goods or services being advertised;

(c) they shall not exploit the special trust minors place in parents, teachers or other persons;

(d) they shall not unreasonably show minors in dangerous situations.`

16. Article 17 (2) is replaced by the following:

'2. Television programmes may not be sponsored by natural or legal persons whose principal activity is the manufacture or sale of products, or the provision of services, the advertising of which is prohibited by Article 13.`

17. Article 18 is replaced by the following:

'Article 18

1. The amount of advertising shall not exceed 15 % of the daily transmission time. However, this percentage may be increased to 20 % if it includes forms of advertising other than advertising spots and/or teleshopping spots inserted in a service that is not exclusively devoted to teleshopping, on condition that the amount of spot advertising does not exceed 15 %.

2. The amount of spot advertising within a given clock hour shall not exceed 20 %.`

18. The following Articles 18a and 18b are inserted:

'Article 18a

1. Teleshopping programmes and spots must be easily identifiable as such and if they are inserted in a service that is not exclusively devoted to this activity they must be clearly distinguished from that service's other broadcasts, including advertising broadcasts, by optical or acoustic means.

2. Teleshopping programmes and spots must comply with the provisions of Council Directive (concerning consumer protection with regard to distance selling), and in particular with those provisions that relate to information on contractual obligations.

Article 18b

1. Windows devoted to teleshopping and inserted in a service not exclusively devoted to this activity shall not exceed three hours any 24-hour period.

2. Services devoted exclusively to teleshopping shall not be subject to any scheduling restrictions as regards time limits.`

19. Article 19 is deleted.

20. Article 20 is replaced by the following:

'Article 20

Without prejudice to Article 3, Member States may, with due regard for Community law, lay down conditions other than those laid down in Article 11 (2) to (5) and Articles 18 and 18b in respect of broadcasts intended solely for the national territory which cannot be received, directly or indirectly, in one or more other Member States.`

21. Article 21 is deleted.

22. The title of Chapter V is replaced by the following:

'Protection of minors and public morality`.

23. Article 22 is replaced by the following:

'Article 22

1. Member States shall take appropriate measures to ensure that television broadcasts, including trailers, by broadcasters under their jurisdiction do not include programmes which might seriously impair the physical, mental or moral development of minors, in particular those that involve pornography or gratuitous violence.

2. The measures provided for in paragraph 1 shall also extend to other programmes which are likely to impair the physical, mental or moral development of minors, except where it is ensured, by selecting the time of the broadcast or by any technical measure, that minors in the area of transmission will not normally hear or see such broadcasts.`

24. The following Articles 22a and 22b are inserted:

'Article 22a

Member States shall ensure that broadcasts do not contain any incitement to hatred on grounds of race, sex, religion or nationality.

Article 22b

The Commission shall attach particular importance to application of this chapter in the report provided for in Article 26.`

25. Article 25 is deleted.

26. Article 26 is replaced by the following:

'Article 26

Not later than the end of the third year after the date of adoption of this Directive and every two years thereafter, the Commission shall submit to the European Parliament, the Council, and the Economic and Social Committee a report on the application of this Directive and, if necessary, make further proposals to adapt it to developments in the field of television broadcasting.`

Article 2

1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive not later than one year after the date of its adoption. They shall immediately inform the Commission thereof.

When Member States adopt these provisions, these shall contain a reference to this Directive or shall be accompanied by such reference at the time of their official publication. The procedure for such reference shall be adopted by Member States.

2. Member States shall communicate to the Commission the text of the main provisions of national law which they adopt in the field covered by this Directive.

Article 3

This Directive shall enter into force on the 20th day following that of its publication in the Official Journal of the European Communities.

Article 1 point 5 shall be effectively applied for a period of 10 years from the date of entry into force of this Directive.

Article 4

This Directive is addressed to the Member States.

(1) OJ No L 298, 17. 10. 1989, p. 23.

(2) Case C-221/89, Queen v. Secretary of State for Transport, ex parte Factortame, (1991) ECR I-3905, paragraph 20.

(1) See, in particular, the judgments in Case 33/74, Van Binsbergen v. Bestuur van de Bedrijfsvereniging, (1974) ECR 1299 and in Case C-23/93, TV 10 SA v. Commissariaat voor de Media, (1994) ECR I-4795.

(1) See, in particular, the judgments in Case 155/73 Sacchi (1974) ECR 409 and in Case 52/79, Procureur du Roi v. Debauve, (1980) ECR 833.