COMMON POSITION (EC) No 48/94 adopted by the Council on 22 December 1994 with a view to adopting European Parliament and Council Directive 94/. . ./EC of . . . on the use of standards for the transmission of television signals (94/C 384/03)

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), 66 and 100a thereof,

Having regard to the proposal from the Commission (1),

Having regard to the opinion of the Economic and Social Committee (2),

Acting in accordance with the procedure laid down in Article 189b of the Treaty (3),

Whereas, in Council Decisions 89/337/EEC (4) and 89/630/EEC (5), the Community recognized the strategic importance of advanced television and of high definition television (HDTV) services for the European consumer electronics industry and for the European television and film industries and established the strategy framework for the introduction of advanced television and HDTV services in Europe;

Whereas the objectives of the strategy for the introduction of HDTV in Europe are an integral part of the Community audio-visual policy in respect of which the importance of 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 (6) should be reaffirmed, and whereas they must take into account other objectives of this policy within the perspective of the development of Europe's audio visual capacity, which comprise structural objectives such as the development of production in countries or regions with more limited audio-visual capacity;

Whereas Council Directive 92/38/EEC of 11 May 1992 on the adoption of standards for satellite broadcasting of television signals (7) set a regulatory framework of standards for advanced television broadcasting services for television programmes based on the HD-MAC standard (8) for European satellite and cable transmission for non-fully digital HDTV and the D2-MAC (9) standard for other not completely digital satellite and cable transmission in the wide-screen 16:9 aspect ratio format;

Whereas Council Decision 93/424/EEC of 22 July 1993 on an action plan for the introduction of advanced television services in Europe (10) aims at promoting the wide-screen 16:9 format (625 or 1 250 lines), irrespective of the European television standard used and irrespective of the broadcasting mode (terrestrial, satellite or cable);

Whereas Article 7 of Directive 92/38/EEC called on the Commission to report on the effects of the application of that Directive, on the evolution of the market, in particular on market penetration measured by objective criteria, and the use of the Community funding, and to make proposals to the Council to adapt that Directive to these developments if necessary;

Whereas, in order to reach Community goals as set out in the abovementioned Decisions and to contribute to the proper functioning of the internal market, as provided for in Article 7a of the Treaty, in the broadcasting of television signals, it is necessary to take steps to adopt a common format for wide-screen transmissions;

Whereas the wide-screen 16:9 aspect ratio has been adopted at world level by the International Telecommunication Union (ITU) (11) for HDTV and it is desirable and possible to develop the market for advanced television services and products having the same wide-screen 16:9 aspect ratio;

Whereas, for the purposes of this Directive, a wide-screen television service must meet the minimum requirements that it uses a transmission system delivering sufficient information to allow a dedicated receiver to display a full frame picture with full vertical resolution and whereas, for the same purposes, a television service using letterbox transmission in 4:3 frame which does not meet the abovementioned minimum criterion should not be considered as a wide-screen television service;

Whereas television services are currently delivered to the home by terrestrial systems, by satellite systems and by cable systems and it is essential that advanced wide-screen services should be made available to the largest possible number of viewers;

Whereas cable TV networks and their technical capabilities as defined by the Member States are a relevant feature in the television infrastructure of many Member States and will be of crucial importance to the future of advanced television services;

Whereas master antenna systems as defined by Member States are not affected by this Directive;

Whereas it is essential to establish common standards for the digital transmission of television signals whether by cable or by satellite or by terrestrial means as an enabling element for effective free-market competition and this is best achieved by mandating a recognized European standardization body taking account, as appropriate, of the outcome of the consensus processes underway among market parties;

Whereas such standards should be drawn up in good time, before the introduction to the market of services linked to digital television;

Whereas conditional access is an important matter for the consumers and providers of pay television services and for the rights holders of programmes;

Whereas a widely based consultation process involving the relevant economic actors in the European market has resulted in agreements on a number of issues concerning conditional access to digital pay television services;

Whereas it is necessary to mandate the inclusion of the common European scrambling algorithm in appropriate consumer equipment in the Community in order to ensure that all pay television service providers can, in principle, provide all digital pay television consumers in the European Community with their programmes;

Whereas it is appropriate, furthermore, to make provision for transcontrol of conditional access at cable television network head-ends and for the licensing of conditional access technology to manufacturers;

Whereas it is appropriate to repeal Directive 92/38/EEC and to issue a new Directive in the light of these developments in the market and technology;

Whereas technologies for advanced television services are developing rapidly and a common approach to their development is necessary; whereas separate and multiple actions by the Member States could lead to undesirable fragmentation of the market for products and services and to duplication of efforts; whereas consequently such actions could be better achieved at Community level,

HAVE ADOPTED THIS DIRECTIVE:

Article 1

Member States shall take appropriate measures to promote the accelerated development of advanced television services including wide-screen television services, high definition television services and television services using fully digital transmission systems.

Article 2

All television services transmitted to viewers in the Community whether by cable, satellite or terrestrial means shall:

(a) if they are in wide-screen format and 625 lines, and are not fully digital, use the 16:9 D2-MAC transmission systems, or a 16:9 transmission system which is fully compatible with PAL or Secam;

(b) if they are in high definition, and are not fully digital, use the HD-MAC transmission system;

(c) if they are fully digital, use a transmission system which has been standardized by a recognized European standardization body. In this context, a transmission system comprises the following elements: formation of programme signals (source coding of audio signals, source coding of video signals, multiplexing of signals) and adaptation for transmission media (channel coding, modulation and, if appropriate, energy dispersal).

Article 3

Any television set with an integral viewing screen of visible diagonal greater than 42 cm which is put on the market for sale or rent in the Community shall be fitted with at least one open interface socket (as standardized by a recognized European standardization body) permitting simple connection of peripherals, especially additional decoders and digital receivers.

Article 4

In relation to conditional access to digital Pay-TV services broadcast to viewers in the Community the following conditions shall apply:

(a) all consumer equipment, for sale or rent or otherwise made available in the Community, capable of descrambling digital television signals, shall possess capability to allow the descrambling of such signals according to the common European scrambling algorithm as administered by a recognized European standardization body.

(b) conditional access systems operated on the market in the Community shall have the necessary technical capability for cost effective transcontrol at cable head-ends allowing the possibility for full control by cable television operators at local or regional level of the services using such conditional access systems.

(c) in connection with the inclusion by manufacturers of conditional access systems in consumer equipment:

- where conditional access systems are licensed to manufacturers, this shall be done on fair, reasonable and non-discriminatory terms,

- licensing or other provision of conditional access systems to manufacturers shall be done in such a way as not to prevent the inclusion of either another conditional access system or a common interface, provided that relevant security conditions relating to the conditional access system are met.

Article 5

Wide-screen 16:9 television services, within the meaning of Article 2, which are received by, and redistributed on, cable television systems shall be redistributed on such systems at least in the wide-screen 16:9 format.

Article 6

Before 1 July 1997 and every two years thereafter, the commission shall review this Directive and submit a report to the European Parliament, to the Council and to the Economic and Social Committee on market and technological developments, in particular relating to developments in digital technology and also to market developments on conditional access to digital television services. If necessary, the Commission shall make proposals to the Council to adapt this Directive to these developments.

Article 7

Directive 92/38/EEC is hereby repealed with effect nine months after the date of the entry into force of this Directive.

Article 8

1. Member States shall bring into force the laws, regulations and administrative provisions necessary for them to comply with this Directive within nine months of its entry into force. They shall forthwith inform the Commission thereof.

When Member States adopt these measures, they shall contain a reference to this Directive or shall be accompanied by such reference on the occasion of their official publication. The methods of making such reference shall be laid down by Member States.

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

Article 9

This Directive shall enter into force on the date of its publication in the Official Journal of the European Communities.

Article 10

This Directive is addressed to the Member States.

Done at . . .

For the European Parliament

The President

For the Council

The President

(1) OJ No C 341, 18. 12. 1993, p. 18.

(2) OJ No C 148, 30. 5. 1994, p. 1.

(3) Opinion of the European Parliament of 19 April 1994 (OJ No C 128, 9. 5. 1994, p. 54), Council common position of . . . (not yet published in the Official Journal) and decision of the European parliament of . . . (not yet published in the Official Journal).

(4) OJ No L 142, 25. 5. 1989, p. 1.

(5) OJ No L 363, 13. 12. 1989, p. 30.

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

(7) OJ No L 137, 20. 5. 1992, p. 17.

(8) ETSI standard reference: ETS 300 352.

(9) ETSI standard reference: ETS 300 250.

(10) OJ No L 196, 5. 8. 1993, p. 48.

(11) ITU-R Recommendation 709 defines 'picture characteristics` including the wide-screen 16:9 aspect ratio.

STATEMENT OF THE COUNCIL'S REASONS

I. Introduction

1. On 16 November 1993 the Commission submitted a proposal based on Articles 57 (2), 66 and 100a of the EC Treaty on the use of standards for the transmission of television signals.

2. The European Parliament and the Economic and Social Committee delivered their opinions on 19 April and 23 March 1994 respectively.

The Commission submitted an amended proposal on 25 October 1994 in the light of those opinions.

3. On 22 December 1994 the Council adopted its common position in accordance with Article 189b of the Treaty.

II. Objective

The purpose of the proposal is to repeal Directive 92/38/EEC and to replace it with a new Directive providing in particular a flexible framework to allow for developments on the market and in technology.

III. Analysis of the common position

1. General comments

The Council's common position broadly speaking incorporates the changes introduced by the Commission in its amended proposal.

The Council's changes to the Commission proposal and its attitude to the European Parliament's amendments were guided in particular by the following concerns:

- to legislate only to the extent necessary taking into consideration, in particular, the outcome of the consultation of the market parties;

- to put in place a regulatory framework with enough flexibility to allow for technological and market developments;

- to strike a balance between consumer interests and the interests of the relevant economic sectors.

2. Specific comments

(Unless otherwise indicated, references are to the text of the common position)

Recital 2

The Council accepted the substance of European Parliament amendment 1 but felt that it was more appropriately placed at the end of the first sentence of the recital.

Recital 8

The Council wanted this new recital added so as to emphasize the minimum requirements to be met by wide-screen services.

Recitals 10 and 11

The Council considered it useful to incorporate these two recitals from Directive 92/38/EEC in order to clarify the legal position of cable networks and master antenna systems.

Recital 12

The Council accepted the principle of European Parliament amendment 2 and followed the text proposed by the Commission in its amended proposal.

Recital 13

This new recital was added in the spirit of certain concerns expressed in European Parliament amendment 7 (see Article 2).

Recitals 14 to 17

The common position incorporates the four new recitals proposed by the Commission in its amended proposal to deal with the matter of conditional access. The Council has made only minor adjustments, which either specify the legal situations envisaged or clarify the text.

Recital 18

The Council shares the view of the Commission, as stated in the explanatory memorandum to its amended proposal, with regard to European Parliament amendment 3, which it has therefore not incorporated in its common position.

Recital 19

The Council considered that the wording proposed in European Parliament amendment 4, which the Commission incorporated into its amended proposal, was less faithful to the principle of subsidiarity enunciated in Article 3b of the Treaty than the text of the Commission's original proposal; the latter is therefore kept in the Council's common position.

Article 1

The Council endorsed the Commission's position and incorporated the first part of European Parliament amendment 5 ('advanced services`). It also considered it desirable to specify that advanced television services include services using digital transmission systems.

Article 2

- point (a): The Council endorsed the Commission's position on European Parliament amendment 6 for the reasons given by the Commission in the explanatory memorandum to its amended proposal and has therefore not incorporated that amendment into its common position.

- point (c): The Council has incorporated Article 3 of the Commission proposal as a new Article 2 (c), in particular in order to be consistent with clarification added in Article 1 (see above).

With regard to substance, the Council felt that the text should spell out the extent of the standardization requirement by detailing the constituent elements of a transmission system.

In addition, as stated in recital 13, the Council shares the Commission and the European Parliament's views on the need for appropriate standards to be available before services are launched on the market, but it did not find it necessary to include the European Parliament's proposed addition (amendment 7) in this Article, as the present text seemed sufficiently explicit, particularly in view of the new recital 13.

Article 4

With regard to the second part of amendment 7 on conditional access, the Council has incorporated the text of the new Article of the amended Commission proposal with the following minor changes:

- at (a): the reference to the algorithm as 'administered` rather than as 'standardized` by the recognized standardization body corresponds more closely to the situation resulting from the agreements of the economic sectors concerned,

- at (c): the reference to 'inclusion in receivers` has been deleted in both indents, as the introductory sentence to point (c), already refers to inclusion in consumer equipment.

The Council welcomes the fact that the market parties in the European Project for Digital Video Broadcasting (DVB) have achieved consensus on conditional access and that this was included in full in the Commission proposal. The new Article 4 reflects exactly what the market parties are prepared to support.

The Council thought that any unilateral amendment of the content of this text could compromise the market parties' consensus and thereby call into question Europe's current role as leader in the digital television sector, which was dependent on that consensus.

It should be noted, however, that in order to cover the eventuality of mistaken developments, Article 6 provides for the Commission to monitor market developments and allows scope for complementary measures to be taken quickly if necessary.

Article 5

The Council preferred to introduce a more open text into its common position, requiring cable television systems to redistribute services received in 16:9 at least in 16:9 format without, however, ruling out redistribution in other formats.

Article 6

The Council supported the addition to the first sentence proposed by the Commission in its amended proposal.

With regard to European Parliament amendment 8, which was accepted by the Commission, the Council considered that adding a reference to 'a new regulatory framework` at the end of Article 6 could raise needless doubts in the minds of market parties as to the stability of the regulatory framework put in place by this Directive. The common position does not therefore incorporate this proposal.

Articles 7 and 8

The Council considered that nine months were necessary for the implementation of the provisions of this Directive and amended the deadline in Article 8 accordingly. For reasons of legal consistency the same deadline must apply to Article 6. Moreover, the reference to the date of publication has been replaced by a reference to the date of entry into force, which is now specified in a a new Article 9.