31. 8. 87 Official Journal of the European Communities No C 232/29 
Opinion of the Economic and Social Committee on the proposal for a Council Directive on the 
coordination of certain provisions laid down by law, regulation or administrative action in Member 
States concerning the pursuit of broadcasting activities (*) 
(87/C 232/16) 
On 28 May 1986 the Council decided to consult the Economic and Social Committee, under Article 
198 of the Treaty establishing the European Economic Community, on the abovementioned 
proposal. 
The Sub-Committee on Broadcasting, which was responsible for preparing the Committee's work on 
the subject, adopted its Opinion on 6 May 1987. The rapporteur was Mr Ramaekers and the 
co-rapporteur was Mr Broicher. 
At its 247th plenary session (meeting of 1 July 1987) the Economic and Social Committee adopted the 
following opinion by 102 votes to five, with 26 abstentions: 
The Committee appreciates the speed with which the 
Commission has proposed a set of provisions designed to 
implement the common broadcasting market advocated in its 
own-initiative opinion on the 'Green Paper on the 
establishment of the common market for broadcasting, 
especially by satellite and cable (2). 
Action is all the more urgently required in view of the fact 
that on 9 and 10 December 1986 the Council of Europe 
decided in Vienna to draw up a Broadcasting Convention to 
which the Community must contribute through a 
harmonized approach on the part of its twelve Member 
States. 
The Committee would point to the reservations expressed in 
its own-initiative opinion as to the economic, social and 
cultural aspects, which cannot be disregarded if the basic 
functions of broadcasting are to be preserved. These are: 
— information, 
— education, 
— entertainment, 
— culture. 
The Committee stresses the need to encourage the promotion 
of European television programmes by a Community 
Directive, while maintaining the cultural identity and the 
national structure of the media. 
Indeed, it feels that European cultural diversity with its 
manifold characteristics is part of Europe's rich heritage. In 
the worldwide development of audiovisual media Europe has 
an exceptional variety of programmes to offer, thanks to its 
cultural diversity. 
It also wishes to stress that the co-existence of broadcasting 
stations of differing status — e.g. public and private — can 
ensure a measure of cultural pluralism and thus help to safeguard the principles of freedom of expression, freedom of 
opinion and pluralism, which are essential to the exercise of 
democracy and to economic and social development. 
Therefore, the legislative and administrative measures to be 
taken in the broadcasting field must be geared to this aim and 
avoid any arrangements which might tend to create a 
dominant opinion-forming power. 
While taking account of the fact that public and commercial 
broadcasters differ in their aims, structures and methods of 
finance, the Committee thinks that commercial broadcasting 
stations should also respect certain minimum requirements 
designed to meet the cultural needs of the peoples of the 
Community. 
However, the Committee would have preferred the proposal 
to be confined to regulating certain fundamental aspects in a 
flexible way, without going into too much detail (excessive 
detail makes the present text in parts confused, inconsistent 
and impossible to apply). 
The Committee is able to approve the Commission's 
endeavour to establish a common market in radio and 
television broadcasting through harmonization. 
As regards the approach adopted, the Committee has doubts 
— also on important points — about whether the conditions 
laid down for the liberalization of the sector offer sufficient 
guarantees of achieving the objectives. 
1. General comments 
1.1. The Committee notes that the Commission has taken 
account of a number of points made in its own-initiative 
opinion on the Green Paper. 
(») OJ No C 179, 17. 7. 1986, p. 4. 
(2) OJNoC303,25. 11. 1985. In particular this is true to some extent of the desirability of 
approximating, by Community Directive, national laws 
No C 232/30 Official Journal of the European Communities 31. 8. 87 
relevant to the European production of programmes, 
advertising, protection of young people, and copyright. 
In its specific comments, the Committee will examine these 
provisions on harmonization in detail. 
1.2. The main aim of the proposal for a Directive, namely 
the achievement of free circulation of broadcast 
programmes, has important implications for the cultural 
level of programmes, the Community structure of the media 
and the position of workers in that sector — implications 
which are important to all social and economic groups. 
1.3. Thus, even if one takes account of the wide context 
of the economic challenges facing the Community in the 
production of television programmes, in the film industry, 
and in the telecommunications sector, it is necessary to 
promote the cultural quality of programmes. 
1.4. The Committee has had occasion in a number of 
opinions to give its views on the future of the European 
audio-visual sector and define the framework of Community 
action. 
It took the line that the Community should not intervene 
directly in the national media structures (x), and stressed the 
cultural importance of audio-visual productions; it also came 
out in favour of the proposal for a Council Regulation on a 
system of Community support for non-documentary cinema 
and television co-productions (2). 
The Committee, anxious that the technical quality of 
broadcasts should improve, has also encouraged the 
adoption of common technical specifications to make 
possible the establishment of a vast European broadcasting 
market (3). 
It has taken note of the 'action programme for the European 
audiovisual media products industry'. 
1.5. In the year before European Cinema and Television 
Year (1988) (4), the Committee though aware of the limits of 
the Commission's scope for action under the Treaty, invites 
the Commission to consider the possibility of reinforcing 
European cultural identities, particularly in the field of 
broadcasting. 
(') CES 776/85, mentioned above. 
(2) OJNoC303, 25. 11. 1985. 
(3) Cf ESC opinion of 23 April 1986, OJ No C 119, 28. 7. 1986 on 
the proposal for a Council Directive on the adoption of common 
technical specifications of the MAC/packet family of standards 
for direct satellite television broadcasting, and Council Decision, 
OJNoL311,6. 11. 1986. 
(4) Cf Commission communications to the Council, the European 
Parliament and the Economic and Social Committee — 
European Cinema and Television Year (1988) — COM(86) 320 
final. The Committee feels that any economic decision in this field 
takes on a cultural dimension. 
1.6. The Committee insists that all further initiatives by 
the Council or the Commission in the cultural field should 
promote European pluralism and show respect for 
minorities. 
It also wishes the Community to provide itself with adequate 
funds to carry out a culturally balanced policy of this 
kind. 
1.7. The Committee would suggest already that the 
Commission consider setting up a European public body 
with trans-national responsibilities in the field of 
broadcasting which would be able to discuss the 
implementation of the Directive with the trans-national 
broadcasting organizations. 
1.8. Concluding its general comments, the Committee 
would ask the Commission to provide for a right of reply, so 
as to guarantee equal protection of personal integrity in all 
the Member States. 
2. Specific comments 
Article 1 
2.1. The Committee doubts the effectiveness of the 
provisions contained in this Article. The Committee notes 
that this Article, which defines the respective responsibilities 
of the Member States concerned, does not tackle the problem 
of advertising emanating from one Member State and 
directed specifically at another State. 
In order to prevent provisions on advertising from being 
circumvented by cross-frontier TV broadcasts, the 
Committee thinks that Member States must harmonize these 
provisions and make them common EC rules. 
Article 1.3. 
2.2. For technical reasons the Committee doubts the 
appropriateness of this provision. 
It would ask the Commission to conclude agreements with as 
many third countries as possible, particularly within the 
framework of the Council of Europe, in order to prevent the 
aims of this Directive from being circumvented. 
Article 2 
2.3. The Committee approves the aim of encouraging the 
production of Community works, especially in order to 
increase employment opportunities and promote European 
creativity. 
It would, however, question the expediency of the proposed 
measures both as regards the possibilities of achieving the 
declared aims and as regards monitoring. 
31. 8. 87 Official Journal of the European Communities No C 232/31 
It considers that the factors taken into account in determining 
the aims are not sufficiently clear. 
A quota system should be viewed not so much in terms of the 
national identity of the programmes (which is a matter for the 
Member States) as in terms of promoting the production of 
television programmes in the Community. There is a risk that 
a guaranteed market for all European productions might 
adversely affect their quality, since they would not have to be 
internationally competitive. 
Any quota system introduced to protect European producers 
should, where necessary, take account of the specific 
situations in the Member States, and it should be ensured that 
the system remains flexible and adaptable. 
The situation differs from one Member State to another, 
particularly inasmuch as Member States have linguistic and 
cultural ties with third countries and are frequently obliged 
under cultural agreements to take the productions of such 
third countries. 
At all events, the system should be reviewed in the light of 
experience, on expiry of the period specified in Article 23. 
Article 3 
2.4. In order to avoid diverging interpretations which 
could cause distortions in the various Member States, the 
Committee would ask the Commission to define the term 
'independent producers', in order to bring out more clearly 
that they must be independent of the broadcaster. 
The Committee welcomes the Commission's intention to 
encourage employment in the media sector. 
However, it wonders whether the measure envisaged in the 
proposal for a Directive is likely to achieve this aim. 
Article 4 c) 
2.5. The Committee wonders about the exact scope of 
this provision, which appears to take as the criterion for the 
Community nature of a work the origin of the funds for 
financing it. If this is the right interpretation of this provision, 
the Committee does not think this a useful criterion to adopt. 
The Committee wonders whether it would not have been 
preferable to adopt a 'Community enterprise' criterion here, 
given that this concept can embrace a certain foreign 
participation in the capital on the company. Article 5 
2.6. The Committee endorses the Commission's declared 
intention to make sure that in the advertising sphere the 
various media continue to co-exist and complement each 
other. 
The Committee considers that there is a risk of concentration 
in the commercial television sector, which could give rise to a 
threshold effect that would confine this type of advertising to 
the brands of a limited number of large firms. 
Article 6 
2.7. Given the considerable latitude allowed the Member 
States in interpreting some provisions of this proposal for a 
Directive, the Committee is worried about the risk of 
diverging interpretations. It wonders whether the competent 
Community authorities will be able to ensure uniform 
interpretation and, if necessary, effectively eliminate any 
abuses found in broadcast advertising. 
2.8. The Committee therefore suggests that a 
transnational complaints committee, independent of the 
Community authorities, be set up to examine any abuses in 
advertising. The various parties involved should be fairly 
represented on such a committee. 
2.9. The complaints committee could also come into 
action at the direct request of a broadcaster in the context of a 
voluntary prior check to ensure legal certainty. 
2.10. As regards the national level, Article 6 (1) should 
specify that the prior check may be carried out only by bodies 
which operate completely independently of the public 
authorities and on which the media, the advertising world 
and consumers are represented. At all events, the national 
enforcement measures of the Member State where the 
braodcast ismade (cf. Article 6 (2)) should be applied if the 
provisions of the Directive are not respected. 
Article 7 
2.11. The Committee agrees with this provision, which 
of course is concerned only with direct advertising and clearly 
distinguishes advertising from other programme material. It 
would draw attention to the fact that it endorsed this 
minimum requirement in its opinion on the Green Paper. 
2.12. However, with regard to 3 (c) of this Article, it 
wonders whether the suggestion made in the same opinion 
that only one interruption be authorized for some 
programmes did not constitute a clearer solution and avoid 
the risk of diverging interpretations. 
No C 232/32 Official Journal of the European Communities 31. 8. 87 
Article 8 
2.13. The Committee approves the aims of this 
provision. It is, however, very much aware of the fact that 
some standards vary with the passage of time and according 
to place, and that there may be problems of diverging 
interpretations. 
It would also like the Commission to add to Article 8 (b) a 
ban on discrimination on the basis of nationality. 
Article 9 
2.14. The Committee approves of the ban on broadcast 
advertising for cigarettes and other tobacco products. It is 
aware that problems of illicit advertising may arise; however, 
it feels it is up to the relevant supervisory bodies to establish 
national case law on this matter. 
2.15. The Committee considers that it should be left to 
the national legislatures to decide, in the light of national and 
international rules on the sale of pharmaceutical- products 
and ethical codes, whether there should be a complete or 
partial ban on the advertising of medicines. 
Article 11 
2.16. The Committee, while endorsing the rules of 
conduct on broadcast advertising directed at children and 
young persons, has doubts about the practical application of 
vaguely worded provisions and effective monitoring of their 
observance. 
Given the vulnerability of the section of the public covered by 
these provisions, the Committee would have preferred a 
minimum of more binding rules with a more precise content 
to be laid down. 
It therefore asks the Commission to consider banning the 
interruption by advertising of programmes specifically 
intended for children and young persons, as well as the 
advertising of toy weapons. 
It would also suggest that clause (a) of this Article be 
amended to stress that the stimulus to buy must not arise out 
of exploitation of the inexperience and credulity of children 
and young persons. 
It would also like the Commission to reflect on possible 
problems arising from the participation of children and 
young persons in advertisements. 
Article 12 
2.11. The Committee is worried about the limited nature 
and the very vague content of the provisions on sponsorship, 
despite the fact that provisions in this area are necessary to 
guarantee the independence of artistic and journalistic 
work. The Committee insists that the sponsor must not interfere 
with the content of programmes. 
Article 13 
2.18. The Committee wishes to draw the Commission's 
attention to the risk of distortions of competition which 
could result from the adoption of national provisions which 
selectively prohibit advertising for certain alcoholic 
beverages. 
It therefore suggests the insertion of an additional paragraph 
designed to avoid such distortions by obliging Member States 
which avail themselves of this Article to treat all alcoholic 
beverages in the same way. 
Article 14 
2.19. As regards a ceiling for broadcast advertising time, 
the Committee would observe that no definitive stand was 
taken on this in the own-initiative opinion on the Green 
Paper. The point was made, however, that the broadcasting 
organizations would have to exercise restraint here. This 
would be in their own interest, since the viewers' tolerance 
threshold must not be exceeded — too much advertising 
would be liable to lead automatically to a negative reaction 
on the part of the viewer, who would switch to another 
station. This is a reaction to which the advertiser could not be 
indifferent. 
2.20. The Committee thinks that the fixing of such a 
ceiling involves a number of consequences which should be 
borne in mind. 
Too severe a limitation of broadcast advertising time could 
lead to a contraction of the market and promote 
concentrations and oligopolies of a few particularly powerful 
groups. 
Such a restricted volume of advertising would lead to an 
increase in broadcasting organizations' rates, making 
advertising accessible only to large enterprises. 
2.21. If is also liable to lead to a concentration of 
advertising at peak viewing/listening times, thus saturating 
the consumer with advertising. 
There is also the risk of encouraging in this way an increase in 
the number of duration of programme interruptions for 
advertising. 
In addition to the daily quota, the Committee advocates the 
fixing of hourly quotas which could be varied according to 
peak viewing/listening times. 
Furthermore, there are absolutely no provisions on the 
distribution of advertising in relation to overall broadcasting 
time. 
31. 8. 87 Official Journal of the European Communities No C 232/33 
2.22. Since it is desirable that radio and television 
programmes should on the one hand help to finance the 
broadcasting organizations and on the other hand guarantee 
the freedom of choice of the citizen, the Committee would 
propose that a distinction be made between those 
broadcasting organizations that are subject to a ban on 
advertising and those that are not, with account being taken 
of the constraints the organizations are subjected to. 
2.23. Finally, the fixing of limits may cause significant 
financial difficulties to local or regional television stations 
which rely on advertising revenue. 
2.24. The Commission notes that current broadcast 
advertising time in the various Member States only rarely 
reaches the figure of 15 % envisaged by the Commission. 
The Committee would urge that account be taken of this 
situation when a maximum for broadcast advertising time is 
fixed in an EEC Directive. Under no circumstances should 
the permitted broadcast advertising time exceed 10 %. 
The Committee thinks, however, that the proposed limit 
could be reviewed at the end of the trial period envisaged in 
Article 23 of the draft Directive. 
Article 15 
2.25. The Committee endorses the provisions with 
regard to the protection of children and young persons. It 
considers that the rules of conduct for this purpose should be 
accompanied and supported by systematic consumer 
education at national level so that young people constantly 
exposed to broadcasting may learn to develop a critical 
awareness of both programmes and advertisements. 
As regards paragraph 2 of this Article, the Committee 
proposes — with a view to ensuring adherence to democratic 
principles — that all forms of prior censorship be abolished, 
as provided for in the constitutions of a number of Member 
States. 
Article 17 
2.26. The Committee notes that the question of the 
protection of intellectual property concerns also sectors other 
than broadcasting and it considers therefore that copyright 
arrangements confined to this sector are not a rational 
Done at Brussels, 1 July 1987. approach to the problem and are not in keeping with the 
interests of either copyright owners or consumers. It 
accordingly calls upon the Commission to draw up without 
delay a seperate proposal comprehensively regulating 
copyright in the Community and providing also a guarantee 
for acquired rights. 
Article 18 
2.21. The Committee reaffirms the principle of 
contractual agreement in the copyright field. It emphasizes 
once again that it prefers contractual solutions and 
accordingly rejects the statutory licence. It would point out 
that the exclusive reference to cable transmission is 
inappropriate and unjustifiably restrictive. 
2.28. The Committee considers that the arbitration 
arrangements at national level are adequate. It takes the view 
that an administrative body without appropriate 
representation of all parties concerned would not be a good 
idea. 
Provision should, however, be made for a Community-level 
arbitration body as a possible 'court of appeal' on which the 
parties concerned would be represented. This body should 
ensure that a solution is arrived at within a reasonable 
period. 
Article 19 
2.29. The Committee considers that, whatever the 
system of arbitration, the provisions of paragraph 2 of 
Article 19 are too limitative and it calls for a more complete 
specification of the minimum requirements. 
2.30. In order to stress the importance of the moral rights 
of copyright owners, it should be laid down in the Directive 
that the relevant conventions form an integral part of the 
Directive. 
Article 23 
2.31. The Committee welcomes the fact that a report on 
the implementation of the Directive will be presented by the 
Commission and submitted to the Committee for 
examination. 
The Chairman 
of the Economic and Social Committee 
Alfons MARGOT