COMVIISSION OF THE EUROPEAN COMMUNITIES 
C0M(94) 353 final 
Brussels, 05.10.1994 
COMMUNICATION FROM THE COMMISSION TO THE COUNCIL 
AND THE EUROPEAN PARLIAMENT 
FOLLOW-UP TO THE CONSULTATION PROCESS RELATING TO THE 
GREEN PAPER ON "PLURALISM AND MEDIA CONCENTRATION 
IN THE INTERNAL MARKET - AN ASSESSMENT OF THE NEED 
FOR COMMUNITY ACTION" 
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SUMMARY 
Introduction 
I. The consultation process 
A. Consultation method 
B. Assessment of the consultations 
H. Analysis of the consultations 
A. Outline of positions 
B. Analysis of the answers to the questionnaires 
C. Observations on the comments 
in. Analysis of the options following the first round of consultation 
A. Commission position on the options 
B. Conclusions 
C. Timetable 
CONTENTS 
SUMMARY 2 
RESUME 4 
INTRODUCTION ...... ., 7 
I. THE CONSULTATION PROCESS . 9 
A. CONSULTATION METHOD 10 
1. EUROPEAN PARLIAMENT, ECONOMIC AND SOCIAL COMMITTEE AND MEMBER STATES 10 
2. INTERESTS CONCERNED 10 
B. ASSESSMENT OF THE CONSULTATIONS 11 
1. QUANTITATIVE ASSESSMENT 11 
2. QUALITATIVE ASSESSMENT 11 
II. ANALYSIS OF THE CONSULTATIONS 12 
A. OUTLINE OF POSITIONS 12 
1. PARLIAMENT, THE ECONOMIC AND SOCIAL COMMITTEE AND THE MEMBER STATES 12 
2. THE INTERESTS CONCERNED 13 
B. ANALYSIS OF THE ANSWERS TO THE QUESTIONNAIRES 15 
1. ANSWERS RELATING TO THE NEED FOR ACTION 15 
2. ANSWERS RELATING TO THE CONTENT OF ANY ACTION 21 
3. ANSWERS RELATING TO THE NEW TECHNOLOGIES 23 
4. ANSWERS RELATING TO THE DEVELOPMENT OF NATIONAL RULES 23 
C. OBSERVATIONS ON THE COMMENTS 24 
1. THE SCOPE OF ANY ACTION 24 
2. IMPLEMENTATION OF THE INTERNAL MARKET AND THE SAFEGUARDING OF PLURALISM 27 
3. "LIBERALIZATION" EFFECT OF RULES ON PLURALISM 1 27 
III. ANALYSIS OF THE OPTIONS FOLLOWING THE FIRST ROUND OF CONSULTATION 28 
A. COMMISSION POSITION ON THE OPTIONS 28 
1. OPTION I (NO ACTION BY THE COMMUNITY) 28 
2. OPTION II (RECOMMENDATION CONCERNING TRANSPARENCY) 31 
3. OPTION III (HARMONIZATION OF NATIONAL RULES ON MEDIA OWNERSHIP) 32 
B. CONCLUSIONS 40 
1. THE SCOPE OF THE DEBATE 40 
2. A MORE DETAILED EXAMINATION OF CERTAIN QUESTIONS RELATING 
TO THE CONTENT OF AN INITIATIVE 41 
3. DEVELOPMENT OF THE NETWORK OF INTERESTS CONCERNED IN MEDIA OWNERSHIP 43 
C. TIMETABLE 44 
Annexes 
List of non-confidential written comments 
List of European organizations invited to the hearing on 26 and 27 April 1993 
Summary of the Green Paper 
European Parliament resolution of 20 January 1994 
Economic and Social Committee opinion of 22 September 1993 
Information sheet on the disparities between national rules on media ownership 
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RESUME 
1. At the request of the European Parliament and some of the interests concerned, in 
January 1993 the Commission asked all interested parties to participate in a 
wide-ranging consultation process on the basis of the Green Paper on "Pluralism 
and media concentration in the Internal Market - an assessment of the need for 
Community action". Now, more than a year later, the time has come to engage in a 
preliminary stock-taking exercise. This is happening at a turning point in the 
history of the media sector in Europe and will contribute towards implementation 
of the Commission's policy of promoting the information society, for which the 
associated imperatives were set out in the White Paper on Growth, 
competitiveness and employment. In this respect the present communication is an 
initial response to the report by the High Level Group ("Bangemann Group") set 
up by the European Council to put forward proposals on the information society. 
That report highlights among other things the detrimental effects on the Internal 
Market of the disparities between national rules on media ownership. 
2. The purpose of the consultations on the Green Paper was to provide the 
Commission with the information it needs if it is to adopt a position on the 
sensitive issue of the need for Community rules on media ownership. The Green 
Paper had identified a number of obstacles to the proper functioning of the Internal 
Market caused by disparities between national rules on ownership of the media 
(television, radio and the press). The purpose of these national rules is to maintain 
pluralism by limiting access to media ownership by a single person, in particular by 
preventing cumulative control of, or holdings in, several media companies at once. 
The Green Paper showed that these disparities brinig with them the risk of 
restrictions on the free movement of media services between Member States and 
on the freedom of establishment of media companies, considerable legal 
uncertainty, and restrictions * or distortions of competition. It concluded by 
proposing three options, although the Commission did not express any preference 
for any one of them at that stage. Option I consists in taking no action at Union 
level; Option II is a recommendation aimed at facilitating the exchange of 
information between Member States in the interests of transparency of media 
ownership; and Option III consists in harmonizing national restrictions on media 
ownership. 
3. During the consultation process, which lasted over a year, opinions were received 
from the European Parliament and the Economic and Social Committee, both of 
which came out in favour of Option III. The Member States were consulted and 
they stressed the lack of any difficulties which might have justified Option II. 
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4. The consultations afforded the opportunity above all of gathering comments from 
the interests concerned, including both individual operators and the associations 
representing them at European level. The consultations developed a momentum of 
their own: the rate at which people made contact or sent in written comments 
remained steady and positions evolved over time. The replies to a complementary 
questionnaire sent out last summer revealed a change in the attitude of the 
interests concerned. Opinions may still be divided, but a majority of operators are 
now against the status quo (Option I) and in favour of a change in the existing 
regulatory framework governing media ownership. Positions are, on the other 
hand, even more divergent or less explicit on the question of the level (European 
or national) at which such a change should occur. 
5. This general situation seems to be due to a number of factors: 
Among the obstacles to the Internal Market identified in the Green Paper, the 
consultations revealed, more particularly, that the lack of legal certainty stemming 
from the current regulatory patchwork was a disincentive to investing in European 
media. This limits the opportunities for media companies to make the most of the 
growth potential of the Internal Market, and hence to play a more active part in 
promoting pluralism. 
The new political and economic environment of the "information society", the 
importance of which was stressed in the Commission's White Paper on Growth, 
competitiveness and employment, has added a further dimension to the drawbacks 
caused by the lack, at Union level, of a common set of rules on media ownership. 
Globalization of the media industry and the new information technologies require 
that maximum use be made of the freedoms of the Internal Market in order to 
facilitate the transformation of this sector into a European industry which is both 
competitive and modern and which can perform to the full its essential role in the 
working of our democracies. This is why the introduction of a regulatory 
framework geared to the information society is one of the priority objectives of the 
White Paper, and why the High Level Group's report stresses the importance of a 
European approach to ending the patchwork of national rules on media ownership. 
In order to adapt to this new environment, national laws on media ownership will 
evolve, and indeed are already evolving, in some Member States. Globalization 
and the development of the new information technologies are revealing a number 
of shortcomings in national laws on media ownership and necessitate their 
amendment. The prospect of such national legislative activity, uncoordinated at 
Union level, is likely to accentuate the damaging effects on the Internal Market of 
the disparities between national rules, foremost among which is fragmentation of 
the market. 
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6. Now that the European media industry is at a watershed, and in view of the 
importance which the Commission, like Parliament, attaches to the maintenance of 
pluralism, a Community initiative on media ownership might prove to be 
necessary. If this were to be the case, such an initiative should enable the internal 
media market to function, and in particular should facilitate the exercise of 
freedom of establishment for media companies and the free movement of media 
services in the Union, and at the same time maintain pluralism in the face of certain 
concentrations. It would provide both a maximum of legal certainty for 
investments in the media sector and a safety net preventing concentrations which 
represent a threat to pluralism and which cannot be dealt with under conventional 
competition-law rules. 
7. The Commission will launch a second round of consultation with all the parties 
concerned having the dual objective of: 
. rejecting or confirming the need for a Community initiative;. 
. in the event that such an initiative would prove necessary, define its limits 
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INTRODUCTION 
At the request of the European Parliament1 and some of the interests concerned, in 
January 1993 the Commission launched a wide-ranging consultation process on the basis 
of the Green Paper on "Pluralism and media concentration in the Internal Market - an 
assessment of the need for Community action"2. 
By adopting the Green Paper, the Commission sought, at the same time as providing a 
basis for discussion, to stress the importance which it attaches to preserving pluralism in 
the frontier-free area which is the Internal Market. The freedoms of the Internal Market 
cannot be put into practice at the expense of pluralism; on the contrary, their 
implementation helps to strengthen that market through the opportunities which it gives 
both citizens and the media. 
The purpose of the Green Paper was to assess the need for action at Community level in 
the light of the disparities between national rules on media ownership. Since the middle of 
the 1980s all the Member States have introduced rules on media ownership. The purpose 
of these is to limit operators' freedom in order to and preserve pluralism. Four types of 
provision can be distinguished: 
Limits on monomedia concentration. These prevent the same person (natural or 
legal) from controlling or having an interest in several media of the same type at 
once, e.g. a ban on having more than "x" television stations or more than "x%" of 
the capital of a second station, if the operator already controls a TV station; 
Limits on multimedia concentration. These prevent a single person from 
controlling (or having an interest in) several media of different types, e.g. a 
newspaper company cannot control a television station, or a televison station 
cannot control a radio station; 
Limits on shareholdings in a radio or television company which apply irrespective 
of how many other media are controlled, e.g. in some Member States it is 
impossible, even for a person who does not own any other media, to hold more 
than 25% of a television station; 
Limits concerning "disqualified persons". These prohibit certain types of 
operator or body from holding a radio or television licence or authorization, e.g. 
some Member States lay down that public bodies, local authorities, religious or 
political organizations and advertising agencies are "disqualified persons". 
Resolution of 15 February 1990 on media takeovers and mergers, OJ No C 68, 19.3.90, pp. 137-8. Resolution of 
16 September 1992 on media concentration and diversity of opinions, OJ No C 284, 2.11.92, p. 44. 
COM(92)480 final, 23 December 1992. 
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Having emphasized that these rules vary widely between Member States (see. Annex 7) 
and having analysed the impact of this diversity on the Community, the Green Paper 
summed up the analysis of the question of the need for action as follows:3 
"In the light of the objectives of the Community and of the analysis carried out here the 
need for possible Community action can be described as follows: 
1. The objective of ensuring pluralism, as it is understood and pursued by the 
Member States, does not as such create a need for Community intervention. The 
operation of the Community is not in itself a threat to pluralism; quite the 
reverse, it may have a positive effect on two factors which determine the level of 
pluralism: the number of broadcasters and newspapers and the diversity of their 
controllers. Member States have the legal capacity to safeguard pluralism, 
particularly where there is real circumvention. The only possible sources of 
difficulty are tension between national authorities regarding the definition of 
circumvention and questions regarding the transparency of media ownership and 
control. 
2. Among the methods used by Member States to safeguard pluralism, the disparity 
between the anti-concentration rules specific to the media constitutes an obstacle 
to the functioning of the single media market: 
it may result in restriction of the free movement of services where there is 
circumvention 
it may result in restrictions on freedom of establishment 
it may produce restrictions on competition 
it may distort competition 
it may cause legal uncertainty regarding the question of circumvention 
it limits access to media activity. 
Any need for action on the part of the Community, then, has more to do with 
ensuring that the Internal Market functions properly than with maintaining 
pluralism as such. 
3. For the present the obstacles are for the most part potential obstacles, because 
the relevant laws are recent and the strategies adopted by operators are often still 
national. 
4. Potential obstacles can be seen mainly in broadcasting, and particularly 
television broadcasting, which has the highest measure of regulation. The press 
is affected essentially by multimedia ownership rules rather than monomedia 
rules. 
5. The restrictions on media ownership which underlie the obstacles identified are 
not incompatible with Community law. " 
The Green Paper concluded by proposing three options, without the Commission 
expressing a preference for any one of them at that stage. Option I consists in taking no 
action at Union level; Option II is a recommendation aimed at facilitating the exchange 
Part Four. 
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of information between Member States to promote transparency of media ownership; and 
Option III consists in harmonizing national restrictions on media ownership. 
Both the method and the scale of the consultations were justified in view of the 
importance the Commission attaches to the question of maintaining pluralism in the media 
and the complex and sensitive nature of the issue. Equally, in the context of the 
implementation of the principle of subsidiarity, a thorough approach was required to allow 
the need for action and the added value of action at Union level to be accurately identified. 
The specific consultations on the Green Paper have been enriched by the work and the 
report of the High Level Group of prominent persons representing the interests concerned 
("Bangemann Group"), set up by the European Council to put forward proposals on the 
"information society". The rapid changes in the technological and economic environment 
of all the media sectors inevitably throw up new topics for discussion during the 
consultations. It is generally accepted that digital technology is capable of transforming all 
media sectors by changing the economics of communication, the patterns of 
interdependence between sectors and the relations between the supplier of the service and 
the consumer. 
The results of the consultation process and consideration of the principle of subsidiarity, 
notably the reality of obstacles to the freedoms of the Internal Market and the new 
dangers of fragmentation of the Internal Market created by the new rules currently being 
decided separately in several Member States, lead the Commission to the conclusion that 
an initiative at Community level might prove to be necessary. The Commission believes 
that it is therefore advisable to continue the consultation process. This should, in addition 
to enriching the information already gathered by the Commission, permit the latter to 
reject or confirm the need for an initative and, in the latter case, allow it to have at its 
disposal all the key factors essential for the determination of its content. This content 
should be balanced and address the fundamental challenges to society posed by the 
safeguarding of media pluralism. 
In the interests of transparency and in view of the wealth of information gathered in the 
course of the consultation process, the Commission wished to submit in this 
communication an interim report informing Parliament, the Council, the Economic and 
Social Committee and the Committee of the Regions of the analysis it has made of the first 
round of consultation and of the follow-up it proposes. 
I. THE CONSULTATION PROCESS 
In launching the consultations, the Commission had in mind not just a formal consultation 
of interested parties but to launch a genuine process with an in-built momentum featuring 
a frank and open dialogue with operators. This process has led to the creation of a kind 
of network of persons and operators interested in the question of pluralism and media 
ownership. 
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A. Consultation method 
1. EUROPEAN PARLIAMENT, ECONOMIC AND SOCIAL COMMITTEE AND 
MEMBER STATES 
As soon as it was adopted, the Green Paper was transmitted to Parliament and the 
Council. The Commission also asked the Economic and Social Committee to deliver an 
opinion on it. The consultations took place above all with the business circles concerned, 
the aim being to assess the impact on the Internal Market of the disparities between 
national rules on media ownership. Over and above the transmission of the Green Paper 
to the Council and the Member States' participation in the hearing attended by the 
interested business circles, the Commission wished to deepen the consultation with the 
Member States through a questionnaire on the transparency of media ownership. Only the 
national authorities were capable of furnishing the Commission with information on 
obstacles to the exchange of information between Member States relating to media 
ownership. 
The Green Paper formed the subject-matter of an exchange of views at a ministerial 
seminar in Mons on 5 October 1993, in the course of which the Ministers for Cultural 
Affairs underscored the need to raise awareness among national business circles about the 
consultations under way. 
2. INTERESTS CONCERNED 
A twin-track consultation process was used, consisting of consulting on the one hand the 
federations and associations representing industry interests at European level, and on the 
other individual operators and all other interested parties. This twin-track approach made 
it possible to obtain both the common positions of European associations and federations 
and individual factual contributions on the specific problems encountered by the interests 
concerned. 
A hearing attended by European associations and federations was held on 26 and 
27 April 1993 (list of participants attached). Only European organizations were invited 
owing to space constraints but the positions of other interested parties were in any event 
taken fully into account. 
A complementary questionnaire was sent to all interested parties on 28 July 1993 
following receipt of the preliminary reactions to, and comments on, the Green Paper. The 
purpose of this questionnaire was to obtain more information on four specific points: the 
impact of the new technologies, the potential development of national rules, the 
real-audience criterion and the control criterion. 
In addition, numerous contacts and informal bilateral meetings took place between the 
relevant Commission department and the interests concerned. Participation in conferences 
and symposia helped increase the latter group's awareness of the need to take part in the 
consultations. 
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In the interests of transparency, the written contributions received were gathered 
together, except where the originator withheld permission, in five volumes which were 
distributed among those who so requested. These can be obtained by sending a written 
request to the following address: 
European Commission, DG XV/E-5, C 107 8/59, 200 rue de la Loi, B-1049 Brussels; 
fax: 32-2-296 17 36. 
B. Assessment of the consultations 
1. QUANTITATIVE ASSESSMENT 
Numbers. Altogether, more than 70 sets of written comments on the Green Paper and the 
complementary questionnaire were received by the Commission. Of these, 25 emanated 
from European federations or associations and the remainder came either from individual 
operators or from national federations or private individuals. 
Geographical origin. Among the comments from interested parties other than European 
industry federations, those originating in the United Kingdom, Germany and Italy were the 
most numerous. Some positions were received from the Netherlands, France and Greece. 
No contributions were received from operators in other Member States. 
Origin by sector. About twenty written contributions emanated more particularly from 
the television sector, while some fifteen positions came from the press, six from the radio 
sector, eight from multimedia operators, and five from journalists' federations and 
employees in the media sector. 
2. QUALITATIVE ASSESSMENT 
(a) Momentum of the consultations 
The Commission was at pains to ensure that the consultations built up and maintained a 
momentum, which meant doing more than just waiting for written comments to come in. 
In the event, the regular contacts between the department concerned and interested parties 
and the dispatch of a complementary questionnaire helped create a dynamic which worked 
well. The complementary questionnaire thus made it possible to gather positions from 
operators who had not yet submitted comments on the Green Paper as well as from those 
who had. There were more new participants in the consultation process than participants 
who had ceased to play the consultation game. 
(b) Representativeness of the positions 
With regard to the European industry federations, it is difficult to determine precisely 
whether the positions accurately reflect the views of all the operators involved. 
However, with regard to individual operators, the Commission notes with regret that the 
bulk of the positions come from just three Member States, namely Germany, Italy and the 
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United Kingdom. Operators from the other Member States were disinclined to submit 
formal contributions, despite the fact that some of them had established formal contact 
with the Commission's departments. 
(c) Quality of the information 
The contributions from parties other than European associations or federations provided a 
large number of specific and useful items of information. The positions of the European 
associations and federations are more a reflection of compromises which sometimes 
contain ambiguities or inconsistencies inherent in a collective decision-making process. 
The radio associations played an active part in the consultations and provided an insight 
into a modern and dynamic medium. 
It is important to note that many of the European federations' positions were presented at 
the spring '93 hearing in a provisional form and that, in most cases, these positions have 
been neither confirmed nor called into question by definitive positions. The associations 
and federations have preferred instead to reply subsequently to the complementary 
questionnaire and to modify their positions through these replies without formally 
confirming their initial comments or otherwise. 
Lastly, the low participation rate among consumer associations is to be regretted in view 
of the essential role they have to play in this sphere. 
H. ANALYSIS OF THE CONSULTATIONS 
The results of the consultations cannot be presented in a simplified and schematic form 
owing to the many nuances, hesitations or distinctions which characterise the 
contributions and positions of the interests concerned. Moreover, a number of 
misapprehensions need to be cleared up by the Commission. 
A. Outline of positions 
1. PARLIAMENT, THE ECONOMIC AND SOCIAL COMMITTEE AND THE 
MEMBER STATES 
(a) Parliament 
Parliament adopted an opinion on the Green Paper on 20 January 1994.4 It comes out in 
favour of Option in subsection c ( creation of an independent committee). It 
accordingly calls on the Commission to draw up a proposal for a directive "firstly 
harmonizing 
OJC 44, 14.2.1994, p. 177. 
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national restrictions on media concentration and secondly enabling the Community to 
intervene in the event of concentration which endangers pluralism on a European scale" 
(§ 1). It asks that an independent committee, or "European Media Council", be set up. It 
provides some details as to the content of the proposal for such a directive, and calls on 
the Commission to propose a directive on access to information held by national and 
Community authorities and a directive safeguarding the independence of information, and 
to put forward proposals concerning a European media code of conduct to maintain 
professional ethics. 
(b) The Economic and Social Committee 
The ESC adopted an opinion on the Green Paper on 22 September 1993.5 It came out in 
favour of Option IQ. Like Parliament, it calls for the drafting of a proposal for a 
directive and considers sub-option C (establishment of an independent committee) to be 
"both reasonable and effective" (§ 4.7). 
(c) The Member States 
The specific questionnaire sent to the Member States in July 1993 has shown that there is 
no need that justifies Option II because at the present time there are no real difficulties 
in exchanging information relating to the transparency of media ownership. As regards the 
choice between Options I and III, Member States took a waiting position, not wanting, so 
it seems, to take up a position at this stage before knowing the results of the consultations 
with the interests concerned. One Member State wished to state its position on the 
options in the Green Paper in writing. 
2. THE INTERESTS CONCERNED 
Generally speaking the industry's position can be stated as follows: the current national 
rules on media ownership must change, in particular so as to cope with globalization 
and the impact of the new technologies. On the other hand, the question of the 
level - national or European - at which the change must occur is the subiect of 
vague or divided positions. This is due to the fact that those in the industry hesitate to 
take a position on this question without knowing the exact content of the rules. Some of 
them had the impression that the Commission was asking them to sign a "blank cheque". 
This position emerged recently when the complementary questionnaire was being 
answered. 
In view of the complexity of the posed questions, the diversity of the interests concerned 
and subtle variations between the comments, it is not possible to distinguish between and 
regroup the various positions according to the names of the originators. Dividing 
OJC 304, 10.11.1993, p. 17. 
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lines have, however, shown up clearly according to the type of operator concerned. Five 
dividing lines are clearly visible in the industry, depending on the operators concerned: 
(a) According to the scope of the operators' strategy: European 
strategy/national strategy 
Those operators who have a strategy of establishment (acquisition of holdings in, or 
control of, media companies) in the different Member States are the first to be interested 
in a common rule of the game in the Community which is both fixed and stable and which 
offers the legal essential to investment in this sector, where the risks and cost of access are 
already particularly high. On the other hand, those operators who have a strategy of 
establishment in their national market are less interested in a common rule except if 
they are adversely affected by distortions of competition (see below). 
(b) According to the operators' activities: monomedia press 
activities/multimedia activities 
Some operators who have a monomedia press strategy can see no point in Community 
action in so far as they are not victims of the disparities between laws on media 
ownership. Only France and Italy have specific rules limiting monomedia concentration by 
means of "mechanical" thresholds. Because such rules do not exist in the other 
Member States, the effects, of the disparities are less important than in the case of 
multimedia activities or monomedia broadcasting concentration. By contrast, multimedia 
operators (or monomedia TV and radio operators) are more favourably disposed towards 
Community intervention because they may come up against the effects of the disparities 
between the rules that have been introduced in all Member States. 
(c) According to the operators' origin: open market/closed market 
Operators carrying on activities in a country where the rules on ownership are liberal are 
sometimes worried that investors might concentrate on their market rather than go to 
other countries where access to ownership is less liberal. The best-known example, which 
predates the Green Paper, is that of the British television company ITV, which voiced 
these fears in view of the fact that in the United Kingdom a single operator may have 
100% of the capital of an ITV station whereas in other Member States holdings are 
limited to a maximum of 25% (as in Greece or Spain) or to less than 50% (as in Germany 
and, since recently, in France). 
(d) According to the operators' experience: new entrants/established operators 
New entrants have an obvious interest compared with established operators. The latter 
have had to find their feet in a recently enacted national regulatory environment and are 
therefore sometimes unfavourably disposed towards any action which might destabilise it. 
By contrast, new entrants who wish to invest in the media sector with an industrial 
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approach wish to have a legal framework which liberalizes market access and removes the 
legal uncertainty of the current regulatory patchwork. Thus, certain established media 
operators have expressed concern at the entry into the media market of the large 
telecommunications companies. 
(e) According to the duration of a strategy: short-term strategy/long-term 
strategy 
The consultations also revealed a difference between companies with a long-term strategy 
and those with only a short-term strategy or no strategy at all. The latter are sometimes 
tempted to prefer the status quo to a Community initiative. By contrast, operators who 
have a long-term strategy are on the whole in favour of such an initiative inasmuch as they 
view the Internal Market more as an opportunity than a threat. 
B. Analysis of the answers to the questionnaires 
1. ANSWERS RELATING TO THE NEED FOR ACTION 
At issue here are the answers to questions 1 to 3 and 5 of the Green Paper questionnaire6. 
(a) Protection of pluralism 
As regards the safeguarding of pluralism as such, Parliament, the Economic and Social 
Committee, the journalists' federations and the trade unions said there was a risk that 
pluralism might be affected and that this justified action at European level. Parliament, in 
particular, in its resolution of 20 January 1994, considers "that national media legislation 
alone was no longer sufficient to safeguard diversity of opinion and pluralism in Europe" 
(recital A); that "media concentration and cross-ownership are increasing in the 
Community (and that) once established, such cross-ownership, where it reduces diversity 
of opinion, is difficult to reverse" (recital C) and, lastly, that "there is a need 
QUESTION 1: The Commission would welcome the views of interested parties regarding the need for action, and in 
particular on: 
any cases where the Community dimension of media activity has meant that restrictions on media ownership 
imposed for the purpose of maintaining pluralism have become ineffective, for example because they are 
circumvented or because of transparency problems; 
the existence of restrictions or restrictive effects other than those identified here; 
practical instances where ownership restrictions have actually impeded the activity of economic operators in the 
sector, J 
the sectors and activities which are especially affected by restrictions on ownership (for example, is the press subject 
to restrictive effects not only in. respect of multimedia aspects but also in respect of'monomedia aspects?). 
QUESTION 2: The Commission would welcome the views of interested parties on whether the needs identified 
are of sufficient importance, in the light of Community objectives, to require action in the media industry and, if so, 
when such action should be taken. QUESTION 3: The Commission would welcome the views of interested 
parties on the effectiveness, in the light of Community objectives, of action which would be taken solely at 
Member State level. QUESTION 5: The Commission would welcome the views of interested parties oh the 
desirability of action to promote transparency which would be separate from a harmonization instrument. 
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to harmonize national legislation which imposes restrictions on the media in order firstly 
to prevent them being evaded and secondly to safeguard the operation of the Internal 
Market, thereby at the same time increasing the competitiveness of the European media" 
(recital E). 
(b) Transparency of media ownership 
Action relating to transparency separate from rules on media ownership (Option II) is 
rejected by Parliament and the ESC, which consider that both types of measure should be 
dealt with together. Opinions among the interests concerned are more divided: those who 
are hesitant about, or against, rules on media ownership tend to support action in relation 
to transparency, whereas those who are in favour of Option III are opposed to such 
action. An independent national supervisory authority came out in favour of Option II. 
The answers to the questionnaire sent to the Member States in July 1993 generally 
indicate that for the time being there are no obstacles to the exchange of information. 
Those who are in favour of Option II sometimes understood this option as covering all 
problems of transparency, including the quality and effectiveness of national rules, 
whereas in fact it concerned only the question of the exchange of information relating to 
transparency.7 
(c) Reality of the obstacles to the Internal Market identified in the Green Paper 
At the end of a legal analysis, the Green Paper specifies that the Member States may 
legitimately, in certain cases, take measures limiting the application of the principles of the 
Internal Market in order to preserve pluralism - an objective of public interest. Thus, a 
number of obstacles to the functioning of the Internal Market are identified: television 
channels' freedom to retransmit (Article 59) between Member States may be restricted in 
the event of a genuine circumvention of the legislation on media ownership, and media 
companies' right of establishment (Article 52) in the Member States may be restricted. In 
addition, it is possible for there to be distorsions and restrictions of competition; legal 
uncertainty may discourage investment and damage the competitiveness of media 
enterprises; lastly, in a general way, access to media activities may be limited. The 
consultation process, which lasted over a year, showed that the obstacles were real. 
Part Four, Chapter 5, §11 "If there were really a need with regard to transparency, this would be to make it easier for 
information to be gathered and exchanged between the authorities concerned by means of a legal obligation on media 
enterprises to disclose information (so that, where appropriate, controlling interests can be identified) and on the 
competent authorities to communicate information to other authorities. For this purpose a recommendation could be 
proposed or, if necessary, a legal instrument. " 
tf. 
- 17-
(i) The disparity of the rules discourages direct investment in media enterprises arid 
the exercise of the right of establishment 
The consultations demonstrated that the obstacles to the Internal Market show up in 
decisions not to make any direct investments, i.e. not to set up, or take a stake in, a media 
company. Setting up a media enterprise - be it a new company, a subsidiary, a 
restructuring operation, acquisition of control or a merger - is a project which takes time 
and carries risk since everything depends ultimately on an authorization being given by a 
national authority. Thus, the obstacle becomes tangible more as the result of a process 
that culminates in a decision not to invest in in an establishment project than in the shape 
of a decision by a competent authority not to grant a licence, thereby giving rise to a 
formal dispute. 
This observation is confirmed by two phenomena: first, the undercapitalization of media 
companies in certain Member States or the difficulties they have in raising capital 
(problems of finding new shareholders, or conflicts between shareholders) and, second, 
the recent investments by European operators in non-European markets (operators 
reported that since there was no genuine Internal Market for the media they preferred to 
invest on the American market or in the new markets of Asia). The economic analysis in 
the Green Paper, which drew on a study by a consultant, had already shown that direct 
investments between Member States in media companies are fairly limited, apart from in 
the magazine sector, which is in fact not covered by the rules on media ownership. 
The disparities between national rules act as a deterrent for two reasons: 
Disparities give rise to legal uncertainty about the legitimacy of any national 
measure rejecting licence applications on account of shareholdings in or control of 
media in the other Member States. The legality for the purposes of Community 
law of such a measure, which has been foreseen under several national legislations, 
would have to be examined in the light of its proportionality to the objective 
pursued. The result of such a scrutiny is very risky and uncertain. The uncertainty 
is furthermore accentuated by the fact that the rules on media ownership 
sometimes vague which is the source of conflicts, as for instance those in Germany 
over the definition of controller (disputes between two Lander authorities) and in 
France (purchase of the newspaper Dernières Nouvelles d'Alsace). Legislative 
disparities and legal uncertainty mean that setting up a new media enterprise will 
entail search costs. This is not a negligible item, especially for small media ventures 
such as radio stations. Contacts with lawyers, e.g. at conferences and seminars on 
the Green Paper, confirm that operators commission research at substantial cost in 
addition to the usual market research. 
-18-
The disparities between national systems of law produces restrictions of 
competition and induce operators to engage in "forum shopping" - identifying 
investment prospects more in terms of the national legislative framework than in 
terms of market opportunities. Operators have stressed that this can lead to 
investment decisions which are inefficient or conclude not to invest at all. Some 
national markets are thus "protected" from new competitors, which facilitates 
mergers between operators already there. The argument that the latter are subject 
to the same restrictive rules as those who want to gain access to the market is not 
relevant, since the operators already there have the advantage of having had time 
to become established and to influence the legal framework ("fief effect). 
(ii) Disparities create legal uncertainty about the free movement of broadcasts 
The Green Paper analysed the question of circumvention at length and concluded that the 
Member States could legitimately restrict the free movement of a channel which 
circumvents legislation on media ownership (by broadcasting, for instance, via satellite 
from another Member State) if the measure were proportionate to the objective of 
pluralism. Through this condition of proportionality, which requires an examination of 
each individual case, the Green Paper recognized the importance of the grey area of legal 
uncertainty which exists to distinguish genuine circumvention from the action of an 
operator who is only using the opportunities of the Internal Market. 
The consultations showed that circumvention of rules in a way which threatened pluralism 
was regarded as a plausible scenario in particular by Parliament, even if for the moment 
there had been no clear instance of it. On the other hand, some operators seem 
preoccupied by the possibility that a Member State might invoke the circumvention 
argument in the case of activities which did not constitute one. In this respect, it should be 
noted that in the case of infringement proceedings the objective of pluralism has been used 
several times by the Member States to justify measures limiting the free movement of 
television broadcasts or the freedom of establishment. The national measures in question 
in these cases did not, however, involve rules on pluralism and media ownership. A 
fortiori, this means that the risk of the rules on media ownership being invoked by a 
Member State to challenge a broadcast from another Member State will increase as 
cross-border activities expand. 
(in) Disparities expose operators to distortions of competition 
Already back in 1992, the UK television channel ITV formally drew the 
Commission's attention to the distorting effects of the disparities between the rules 
on media ownership. 
-19-
Various operators reported that the difference between their national rules and 
those of the other Member States made it hard for them to compete against media 
enterprises from other Member States which had been able to grow under fewer 
constraints. 
During the consultations, operators expressed fears about fragmented 
liberalization at Community level, i.e. only in their Member State. This could have 
the result of exposing them to competition from large groups from other Member 
States or non-member countries which were attracted by the national market thus 
liberalized. In this respect, media operators were worried about 
telecommunications operators, who were preparing, in the context of the 
information society, to enter the media market and who would be the first to be 
interested in liberalization by a Member State acting alone. 
(iv) The opportunities afforded by the new technologies and the Internal Market 
cannot be fully used within the current legal framework 
This was the virtually unanimous conclusion of all operators: at a time when the new 
technologies (digital transmission, compression and convergence) make it possible and 
essential to cross national frontiers, the current legal framework is inappropriate. The 
rules were drawn up at a time when frequencies were scarce, whereas, from now on, 
digital technology will increase the technical capacity to create new channels (by a factor 
of between 6 and 10). The inappropriateness arises not only out of the nature of the 
national rules but also from the disparity in national approach, for the investment needed 
to implement these new technologies requires that markets be found at Community level. 
It is not enough therefore for one Member State alone to adapt its rules, because an 
operator established there would encounter obstacles when exporting the new media 
services to other Member States whose legislation on media ownership did not offer the 
same opportunities. 
One of the strategies cited most by operators consists in broadcasting a bundle of 
specialized channels (made possible by digital compression) to a small target audience; to 
be profitable, this must have a cross-border dimension. While these clusters could be 
lawful in certain Member States, they would not be in others whose legislation restricts 
the number of channels. Legally, the outcome of any dispute that might arise is very 
uncertain, for an assessment would have to be made in each case of whether, given the 
principle of proportionality, a Member State can legitimately restrict such broadcasts. 
Another example of the uncertainty of the current legal framework which could cause 
problems for cross-border broadcasting lies in the definition of the televised media (are 
electronic newspapers covered by the current rules?) or in the application of ceilings to 
shareholdings in a television channel. 
-20-
(v) The new technologies and the legislative reactions to them will increase the 
significance of the obstacles to the Internal Market in the short term 
The consultations showed that as a result of the new technologies, operators are now 
thinking in terms of the new media and new European markets to make their exploitation 
profitable. In this respect, the obstacles to the Internal Market will have a quite different 
effect in the very short term: 
the expansion of cross-border media activities as a result of the new technologies 
increases the risk of conflicts or disputes arising out of the disparities between 
national rules; 
the obstacles to the Internal Market could become even more important since, 
faced with the new technologies, national rules are changing and may become even 
more disparate. In Germany, the competent authorities in the Lander have started 
work on the revision of the ownership rules in the "Rundfunkstaatsvertrag"; in 
Belgium, a debate has been launched on the impact of digital technology; in 
France, a new law has now liberalized the rules on the maximum shareholding in a 
television company, and a report by the Conseil Supérieur de l'Audiovisuel (CSA) 
proposes that the anti-concentration rules be amended; in Italy, there has been a 
public debate about media ownership for some years; in the Netherlands, a code of 
conduct has just been drawn up to limit monomedia concentration in the press; and 
in the United Kingdom a review of the rules on multimedia ownership has been 
launched with a view to their liberalization. With these developments in the 
national rules there is a real risk that national approaches will become even more 
disparate if there is no coordination at Community level. Such disparity is already 
apparent with regard to the general objective: in some Member States (e.g. the 
United Kingdom or France), the changes are intended to liberalize the current 
framework in order to face up to world competition, whereas in other Member 
States (Germany or the Netherlands) the debate focuses more on increasing the 
effectiveness of supervision. Another cause of this disparity is that the starting 
point for these changes varies considerably since current rules and national 
markets are already very dissimilar. Without a Community framework for these 
legislative developments, therefore, there is no chance that a natural alignment 
between national rules will occur; 
lastly, faced with the globalization of the media industry, European media 
companies will not be sufficiently competitive on the international scene if they 
cannot exploit the opportunities for development provided by the Internal Market. 
(d) The quality of national rules 
The quality of national rules on media ownership was often criticised, in particular to 
draw attention to the need to facilitate access by operators to media activities. 
-21-
The radio sector, in particular, underscored this aspect in view of the difficulty of 
obtaining authorisations or licences. This question reveals the existence of pressure to 
bring about changes in national regulatory frameworks. 
(e) Competitiveness of the industry 
The importance of the objective of promoting the industry's competitiveness, in assessing 
the need for action, was stressed, in particular by publishers and multimedia operators, 
owing to the globalization of the media industry and the development of new 
technologies. 
2. ANSWERS RELATING TO THE CONTENT OF ANY ACTION 
At issue here are the answers to questions 4 and 6 of the Green Paper questionnaire and 
to questions C and D of the complementary questionnaire.8 The question of the content of 
any action was both omnipresent in the positions voiced and paradoxically treated with 
little precision and substance in the contributions received. Many participants in the 
consultation process tended to link the question of the need for action to that of the 
content of such action, whereas they are two separate questions which can be answered 
separately. 
The setting-up of a European committee was called for by Parliament and the ESC, but 
on the other hand is objected to by a majority of the business interests concerned. 
The question of the coverage of monomedia press concentration. The consultations 
revealed, on the one hand, that operators in two countries (F, I) with an automatic 
QUESTION 4: The Commission would welcome the views of interested parties on the content of a possible harmonization 
instrument as envisaged above, and in particular on the two variants for its scope, on the use of the real audience as a basis for 
setting thresholds, on the demarcation of distribution areas, on any other possible references, and on ways of defining the 
concept of controller. QUESTION 6: The Commission would welcome the views of interested parties on the desirability of 
setting up a body with competence for media concentration. QUESTION CI. Given that a criterion of potential audience 
(like the population covered by a satellite footprint) would be too restrictive, what type of audience measurement might be 
utilised, in particular for multimedia and monomedia concentration of radio and television enterprises (for example, "audience 
share" for television, "daily reach" for radio, number of dailies sold for newspapers)? Question C2. With reference to criteria 
used in national arenas, namely the number of channels, will the audience criterion offer more opportunities to access the 
market, namely for thematic (i.e. special-interest) channels (by reason of their small audience)? Question C3. What might the 
necessary conditions be to make a system using thresholds based on audience levels workable (compatibility, comparability, 
equivalence, etc.)? Is it possible to have a single audience criterion applicable to multimedia or is it necessary to have several 
distinct criteria applicable to each medium or combinations of media? Question C4. Might it be deemed necessary to have 
complementary criteria such as, for example, that of language of the media, that of the type of radio station or TV channel 
concerned, that of the number of licences granted at the same time, etc.? Question C5. Should the fixing of thresholds leave a 
discretion to the Member States to set stricter limits for operators established on their territory? Question Dl. Is it necessary 
to go further than existing company law to define media control in specific rules? Question D2. What comments can be made 
on the definitions used for media controllers in current national regulations? Question D3. What elements should a definition 
contain bearing in mind the objectives of effectiveness, adaptability to the Community framework, and compatibility with 
existing systems as well as the economic and technological effects that could result? 
- 22 -
limit on monomedia press concentration wished to be no longer discriminated against 
compared with the other Member States which have no such limits and, on the other, that 
operators in the other Member States were opposed to the extension of this type of limit 
in their country. 
The audience criterion envisaged in the Green Paper9 was commented on several times in 
fairly general terms. Three points of view were expressed: it is a logical criterion but one 
which poses problems of feasibility; it is an inadequate criterion which needs to be 
accompanied by economic criteria (such as revenue); it is not a good criterion. The 
majority of comments fell into the first two categories. The question whether a single, 
integrated multimedia criterion can be used was answered in a variety of ways. It should 
be noted that the audience criterion gave rise to misunderstandings and that, in the 
intervening period between the answers to the Green Paper questionnaire and those to the 
complementary questionnaire, positions evolved, the criterion being viewed in a more 
favourable light. Some operators were under the mistaken impression that the criterion 
might penalise the growth of an existing television channel, whereas in fact it would be 
used only in the context of an application, to a national authority, for authorisation to set 
up a new channel or to take over (or acquire a shareholding in) an existing channel. 
The media controller criterion also envisaged in the Green Paper10 was the subject of very-
few specific comments. However, the majority of contributions stressed that it would be 
necessary to lay down specific rules which go further than existing company law in 
defining control. 
The question of persons ineligible for media ownership (disqualified persons) was 
considered important by Parliament, which asks, in particular, that advertising agencies 
should not be allowed to run newspapers or radio or television companies and vice versa. 
The Green Paper envisages using the audience criterion for setting restriction thresholds limiting access to media ownership: in 
order to award a license to a new television channel ( or to authorise the acquisition of control of an existing television 
channel). The national controlling authorities should determine if the media audience already controlled by the applicant for a 
license does not exceed the threshold fixed by the directive, for the broadcasting zone of the new channel. 
It is a question of finding a definition that allows the person or operator controlling a media enterprise to be identified in order 
to apply the audience criterion limiting access to ownership. 
- 23 -
3. ANSWERS RELATING TO THE NEW TECHNOLOGIES 
At issue here are the answers to question A of the complementary questionnaire.11 
All the answers stress the sizeable impact of the new technologies, in particular 
digitalization, compression and convergence, which will make it possible to increase the 
number of television channels, appreciably modify commercial strategies and increase 
globalization. The positions stress that the current rules on media ownership are 
unsuitable owing, especially, to the methods they use, in particular the criterion of the 
number of channels controlled by a single operator, or the definitions of broadcasting 
(does it cover electronic publishing?). The contributions also stress the importance of new 
technologies for the publishing sector. Some operators in the radio sector raised the 
problem of access to technologies, in particular DAB (Digital Audio Broadcasting), and 
stressed the risk of further concentration which they involve. Other positions, on the other 
hand, point to the need to increase the flexibility of the anti-concentration thresholds to 
the extent necessary for the development of the new broadcasting technologies. Some 
questions deserve to be examined more thoroughly, such as those related to the economic 
ties of the media operator both upstream and downstream and those concerning the 
pattern of vertical integration. 
4. ANSWERS RELATING TO THE DEVELOPMENT OF NATIONAL RULES 
At issue here are the answers to question B of the complementary questionnaire.12 In 
general, the answers mentioned the existence of regulatory or pre-regulatory 
Question Al : Identify the new technologies or those under expansion which will affect the market (distinguishing namely 
between those which, from the point of view of the consumer, will replace existing technology and those which will be of a 
more complementary nature, giving details of the expected time scale for implementation of these technologies). Question A2: 
What economic impacts will be foreseeable at the Community level, in particular on the market structure and on the strategy of 
operators within the internal market? This evaluation will not have to be all-encompassing but should be carried out on a 
technology-by-technology basis. It is important to give precise information about the access costs to these technologies, in 
particular for the consumer and the operators. Question A3: What impacts will be foreseeable on the national statutory arena 
in regard to media ownership? Does current national legislation covering media ownership permit, or, on the contrary, limit, 
the development of these new technologies (explain the effect of any limitations)? Question A4: To what degree could the new 
technologies develop conditions for the granting of authorizations or licences applicable to television or radio operators? In 
particular, which conditions, besides those relating to pluralism, could be envisaged? 
Question Bl : Are you aware of any proposals for new anti-concentration rules, in the Member States, specific to the media? 
What is their origin and objective? Question B2: Would you welcome a change in the applicable regulatory framework? 
Question B3: What factors could change the national regulatory framework in the future (new broadcaster authorisations, case 
law developments, political debates, ineffectiveness of national rules, over-stringent rules, etc.)? Question B4: How long did it 
take to draw up the current regulations and were you involved in the process? Question B5: Could these possible changes 
accentuate or attenuate the regulatory disparity between the Member States of the Community? 
-24-
activity in several Member States, and a number of positions stressed the risks of an 
increase in the disparities between national rules. 
C. , Observations on the comments 
The consultations revealed a number of misapprehensions which need to be cleared up. 
1. THE SCOPE OF ANY ACTION 
(a) Questions relating to access to information and the exercise of journalistic 
activities 
In its position Parliament asked the Commission to propose certain other measures apart 
from those on media concentration, namely a directive on access to information held by 
national and Community authorities, a directive safeguarding editorial independence, and a 
code of conduct on professional ethics. The Commission would point out in this 
connection that the questions dealt with in the Green Paper were defined in the light of the 
Community's competences and the principle of subsidiarity. 
As regards the request for a directive on access to information held by national and 
Community authorities, the Commission acknowledges that the questions of transparency 
and access to information are important. It was with this in mind that it presented two 
communications to the Council, Parliament and the Economic and Social Committee, one 
on transparency in the Community,13 and the other on public access to the institutions' 
documents.14 These two communications underline the Commission's concern to 
implement a policy of transparency at the level of the Union's institutions, especially by 
means of an interinstitutionaT agreement They do not, however, tackle the issue of access 
to information in the Member States in so far as such matters are already dealt with at 
national level in accordance with approaches specific to each Member State. In this 
context, regulatory intervention at Union level is not justified in the light of the Internal 
Market as the disparities between national rules on these questions do not create obstacles 
which ought to be removed by harmonization. 
As regards the media code of conduct on professional ethics and the framework directive 
safeguarding journalistic and editorial independence, in view of the Community's 
competences and the principle of subsidiarity these matters cannot be dealt with at 
Community level but are a matter for the Member States In the first place, such questions 
are not always dealt with by regulatory means, being instead governed by 
\3 COM(93) 258 final, 2 June 1993. 
COM(93) 191 final, 5 May 1993. 
u<-
-25-
codes of ethics which do not concern the legislator, and in the second place, where 
statutory rules do exist, the differences between Member States do not seem to cause any 
problems for the functioning of the Internal Market such as would justify their 
harmonization. 
(b) Questions relating to internal pluralism 
The question of internal pluralism has given rise to a number of misunderstandings which 
have led to several requests being made that public channels be excluded from the scope 
of a possible directive on media ownership. This is a sensitive issue and the Commission is 
of the opinion that the specific nature of public channels must be taken fully into account 
in determining the content of any rules. However, any automatic or a priori derogation 
would require an in-depth analysis along the following lines: 
First of all, a partial harmonization, i.e. a harmonization which would not cover all cases 
of concentration, might not remove the obstacles to the Internal Market created by the 
disparities between national rules. 
Secondly, if the content of the directive prevents media concentrations above a certain 
level, all cases of concentration must be covered, including those involving public 
channels, in which case their public service missions should however be taken into 
account. 
Thirdly, public channels sometimes behave like private operators when implementing a 
diversification strategy which could lead to, for example, the creation of new channels 
which are not subject to the same public channel internal pluralism obligations. 
Fourthly, the interests at stake must not be confused: harmonization of regulations on 
media ownership would not in any way call into question the specific characteristics of 
public broadcasters, including their public service and internal pluralism obligations. 
Lastly, there is no substitutability between internal pluralism measures and external 
pluralism measures: although the general objective is the same, namely to ensure 
pluralism, the specific objective pursued by these two types of measure in attaining the 
general objective is different: internal pluralism measures seek to ensure diversity of 
opinion within a channel's programmes; external pluralism measures seek to ensure 
diversity of opinion, not within a channel's programmes, but through the independence and 
autonomy of the different media offered to the public. It is thus not possible to offset any 
non-application of external pluralism measures by the application of internal pluralism 
measures. 
-26-
(c) The question of the interface between general competition law and the 
specific rules on media ownership 
Some comments expressed doubts about the interface between the specific rules on media 
ownership and general competition law. 
(i) Impossibility of replacing the specific rules on media ownership with general 
competition law 
As stated in the Green Paper,15 even if competition law can contribute to pluralism, it 
cannot cover every situation because the maintenance of competition and the maintenance 
of pluralism are two different objectives which call for different assessments. That is why 
the Member States have adopted specific rules on media ownership in parallel with 
domestic competition law. 
Moreover, however effective competition law may be, the disparities between specific 
national rules on media ownership remain, as does their impact on the functioning of the 
Internal Market. 
Reducing the thresholds in the Merger Control Regulation,16 which has sometimes been 
put forward as a solution, would therefore not solve the problems created by the 
disparities between specific national rules on media ownership. 
(ii) Risk of overlap with competition law 
Conversely, some comments seem to call for a specific rule covering situations which fall 
more under the sphere of competition law. This is the case in particular with 
concentration in the advertising industry or with the vertical relationship between a 
producer and a right-holder, which can be dealt with by applying national or Community 
competition law (Merger Control Regulation, Articles 85 and 86 of the Treaty) without 
Part Four, Chapter II, Section 1, Subsection 2. Because of the different nature of the two instruments ( competition law/ 
specific rules relating to the media), situations could exist in which pluralism might be threatened without actual competition 
being hampered in a significant way in the Internal Market or a substantial portion of it. This could result from the definition of 
the markets in question which makes it difficult to take a internal market for multi media activities into account and lends itself 
to a separate examination of each market in question. For example, from the media consumer's point of view, who listens to the 
radio, reads a newspaper and watches television, a multi media concentration could mean that all the media he receives are 
under the control of the same controller, even if the sections of the media markets controlled by that same person in each of the 
. markets in question are not large enough to hamper competition. 
In this connection, the Commission decided, in its July 1993 report on the application of the Merger Control Regulation, to 
wait before making a proposal to revise the thresholds. The matter will be considered before the end of 1996. 
-27-
it being necessary to draw up new, specific rules. Similarly, the effective application of 
competition law can cover situations relating to systems for controlling access to the new 
technologies (encryption) which could limit access by certain firms to the new media 
market This is incidentally why, at national level, the specific domestic rules on pluralism 
do not generally cover this type of situation. 
2. IMPLEMENTATION OF THE INTERNAL MARKET AND THE 
SAFEGUARDING OF PLURALISM 
On a number of occasions in the course of the consultations several participants seemed to 
draw a contrast between the objective of completing the Internal Market and that of 
safeguarding pluralism. In the Commission's view, such a contrast is not justified. The 
Internal Market is not a "free market" in which all restrictions are to be removed. 
Indeed, the Green Paper emphasises that the national rules are persue an essential general 
interest (to guarantee pluralism) and therefore only a community harmonization of these 
general-interest rules could put an end to the restrictions caused by their disparities on the 
free movement of services and the freedom of establishment. 
Therefore, in so far as the proper functioning of the Internal Market calls for a set of rules, 
these would at the same time seek to maintain pluralism in the face of media 
concentration. In other words, Community intervention based on the establishment and 
functioning of the Internal Market is not in itself contrary to the general interest 
requirement of preventing concentrations which endanger pluralism which cannot be 
covered by the application of competition law alone. 
3. "LIBERALIZATION" EFFECT OF RULES ON PLURALISM 
Some participants in the consultation process expressed doubts about the possibility of 
liberalizing anti-concentration systems using rules on pluralism However, there is no 
contradiction between regulation and liberalization. On the contrary, only a set of 
Community rules would permit, where appropriate, a certain type of liberalization. There 
are three reasons for this: 
- it would reduce the number of rules confronting operators in their European activities 
(by replacing 12 different sets of legal provisions with a single set); 
- it would remove the obstacles to the Internal Market identified above (in particular the 
lack of legal certainty in the event of circumvention of the law) by removing the 
disparities between laws; 
- 28 -
- the third reason concerns not the Community added value peculiar to any "Internal 
Market"-type harmonization, but the quality of the content of the legal instrument. The 
task here will be, in accordance with the principle of proportionality, to define a content 
which does not go beyond what is necessary in terms of the objective to be attained and 
which strikes a delicate balance between the need to facilitate access to media activities 
and the need to prevent pluralism-threatening concentrations which cannot be stopped 
solely by applying competition law. The effectiveness of competition law will need to be 
taken into account when it comes to determining the content and liberalizing effect of a 
regulationsince the object of the rules would be to cover only situations which are 
dangerous from the point of view of pluralism and which cannot be covered by 
competition law. Other situations, by contrast, would be covered only by general 
competition law. An instrument which caused confusion or created an overlap between 
competition law and the specific rules would prevent genuine liberalization without 
providing a better guarantee of pluralism. Moreover, the quality of the rules will depend 
on the ability to take into account the context of the new technologies. In this respect, 
the use of the audience criterion would, in the Commission's view, be likely to safeguard 
the maintenance of pluralism more effectively while being less harsh than the criterion of 
the number of channels owned by the same operator. 
m. ANALYSIS OF THE OPTIONS FOLLOWING THE FIRST ROUND OF 
CONSULTATION 
A. Commission position on the options 
Overall, the consultations confirmed the analysis, which identified the obstacles to a 
Internal Market and the three possible options. It is not the purpose of this 
communication, therefore, to pinpoint the potential obstacles again, and the reader is 
referred to the Green Paper for a fuller explanation. A potential need for action has been 
identified, but a final decision as to that need, i.e. concerning in this case one or other of 
the options, has to be assessed for its appropriateness. In this particular case, given the 
specific characteristics of the question involved, the Commission has assessed the various 
possible options on the basis of four criteria: which option-,best lends itself to the 
achievement of the Community's objectives (teleological criterion)? Which option is best 
suited to the prospect of change (diachronic criterion)? What is the impact of the options 
(impact criterion)? And which option «s most consistent with the other Community 
initiatives (consistency criterion)? 
1. OPTION I (NO ACTION BY THE COMMUNITY) 
(a) Achieving the Community objectives 
If the Commission were to take no action, the objectives of the Internal Market would not 
be achieved in the media sectors. The obstacles to the functioning of the Internal Market, 
- 29 -
which were identified in the Green Paper, in particular the lack of legal certainty as to the 
free movement of services and the freedom of establishment, would persist and could not 
be removed by other types of measure. Option I would mean that the status quo 
concerning access to media ownership would be acceptable for the purposes of the 
Internal Market. 
(b) Prospects for change 
The legal systems of the Member States are currently distinguished by substantial but 
contrasting legislative trends. Whereas in France and the United Kingdom there is a 
tendency towards liberalization, in the Netherlands there are stricter rules (a professional 
code of ethics was recently adopted setting traditional limits on monomedia concentration 
in the press), and the question is the subject of debate in Germany and Italy. 
It is difficult to see how such trends can lead spontaneously to the de facto approximation 
of national rules if there is no institutional framework at Community level. The political 
and economic context specific to each national system will mean that legislative trends will 
be driven by a specific logic. One need only look, for instance, at how the question of 
multimedia concentration is treated in the different countries. 
It should be noted that this rule-making activity is set to increase further. There are two 
reasons for this. First, the traditional definitions relating to television activities and the 
quantitative criterion of the number of channels controlled by a single operator (laid down 
in the rules in order to limit media concentration) are unsuited to the new context of a 
multiplicity of channels (new technologies) and are going to lead, in the short or medium 
term, to changes in the legislation. Secondly, the implementation of operators' global 
strategies, and in particular the entry of telecommunications operators in the market, will 
result either in a demand for liberalization by traditional media operators already in the 
market or, conversely, in pressure for these new situations to be regulated. 
(c) The impact of not taking action 
Political impact. A decision not to take action would run counter to the wishes clearly 
expressed by Parliament and the Economic and Social Committee, This could have 
repercussions on the relations between Parliament and the Commission or the Council in 
future matters relating to the media, particularly as regards the follow-up to the White 
Paper. Not to take action would also run counter to the concerns expressed in the report 
of the High Level Group, which asks the Commission to react to the current situation 
regarding media ownership and to the possibility that it might deteriorate. Failure to take 
action would be interpreted by the industry as a sign that the Community does not intend 
-30-
to formulate a public policy of encouraging direct investment in the media sector. At 
Member State level, a decision to take no action could, possibly, accord with the wishes 
of some national authorities, who might be reluctant to see the Community intervene in a 
sensitive area. However, if no action is taken, the expansion of the media's cross-border 
activities could increase the risk of tension between the national authorities responsible for 
granting licences or authorisations. Political pressure at national level to take measures 
concerning media concentration would also markedly increase. 
The economic impact of a decision not to take action can be assessed in accordance with 
two possible short-term scenarios: (a) fragmented liberalization, i.e. in one or a few 
Member States only, and (b) the maintenance of the status quo or the intensification of 
national restrictions. 
On the supply side, irrespective of the scenario, the fragmentation and 
compartmentalisation of markets, and the resultant lack of legal certainty would have the 
general effect of discouraging investment, from within the Union and outside, in the 
European media and would reduce the competitiveness of the European media industry in 
the context of the increasing globalization of the sector. 
In the event of fragmented liberalization, the Member States liberalizing access to media 
ownership could receive, in the short term, a considerable flow of investment from 
operators in third countries or other Member States which have not liberalized their 
system. Depending on its scale, such investment could, by reaction, encourage the country 
concerned to reintroduce regulatory barriers in the medium term. Even if the flow of 
investment were massive, it would still be less than if liberalization were carried out at 
Union level, since the liberalized national market would not be large enough for launching 
new, innovative services. 'Liberalization with a view to promoting the creation of 
information highways by allowing telecommunications operators to enter the media 
market would not be very effective at national level and would encourage national 
monopolies or national champions. As the national market is limited, telecommunications 
operators, in order to get a return on the investments necessary for the information 
society, will have to acquire a strong position on that national market and hence integrate 
vertically with the media services sector. By contrast, the emergence of a strong, 
competitive sector in cross-border media services, using information highways, would 
limit the extent of vertical integration of telecommunications operators and would 
encourage the creation of genuinely European information highways. 
If the status quo is maintained, the European market will not attract potential 
international investment in the media. The new technologies entail costs and increasingly 
require 
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operators to go for cross-border niche markets involving several Member States. Yet the 
current legal fragmentation, complexity and uncertainty make such a cross-border 
approach difficult and discourage the investment which the implementation of such a 
strategy requires. In addition, traditional national players in the media sector would try to 
expand in other markets around the world (e.g. Asia, Central and Eastern Europe), which 
would result in a loss of investment in the Union. In some cases, maintaining the status 
quo would, to the detriment of new potential players, mean no shake-up of current 
operators - the rules on media ownership have made it necessary to develop very complex 
alliance strategies often dictated by a particular political context - and would encourage 
strategies that were national only. In the long term, such enterprises, "protected" by 
closed rules, will no longer be competitive on the world media, and in particular the 
multimedia, market. 
On the demand side, the potential choice for European media consumers will be limited, 
and imports of media, especially multimedia, services from third countries such as the 
United States will probably increase. However, the European media consumer will not be 
the target for new, innovative services but rather will consume the services supplied in 
those third countries. 
(d) Coherence 
Option I would create problems of consistency with regard to Community activities. The 
information services sector and, in particular, the audiovisual sector receive priority 
treatment, as the White Paper and the recent Green Paper on the competitiveness of 
audiovisual programmes show. Consequently, it could be inconsistent to devise a 
European policy solely for those aspects which relate to the exploitation of television 
programmes or audiovisual works while not concerning oneself with direct investment, i.e. 
with the financing of the media companies. Furthermore, the press, radio and multimedia 
sectors could challenge the priority given to the audiovisual sector. 
2. OPTION II (RECOMMENDATION CONCERNING TRANSPARENCY) 
(a) Achieving the Community objectives 
A recommendation designed simply to facilitate the exchange of information between 
national authorities concerning the transparency of media ownership will not make it 
possible to achieve the Community objectives, in particular those of the Internal Market. 
Such a measure would not put an end to the disparities between national rules which are 
the cause of the obstacles to the Internal Market. Of course, this does not mean that the 
Commission regards the transparency of media ownership as unimportant. It means, 
rather, that this is not a subject which as such requires specific action at Community level. 
Indeed, the Member States' answers in this respect showed that there were no real 
obstacles to the exchange of information. Moreover, questions concerning the quality of 
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national rules for ensuring transparency can be dealt with more effectively at national 
level. On the other hand, if rules on media ownership were established at European level, 
rules on transparency and the exchange of information would be needed to implement 
them. 
(b) Prospects for change 
The globalization of information activities should increase the requirements of the national 
supervisory authorities with regard to the exchange of information. However, it is 
difficult to argue that this will necessarily increase the obstacles to the exchange of 
information. 
(c) Impact 
The* option would have little economic impact, since it would be aimed primarily at 
national supervisory authorities and not at companies. The information would not 
necessarily be of the same type as that likely to interest companies, in particular with 
regard to their merger and acquisition strategies. In addition, the conditions of 
confidentiality would be different, since it would be information transmitted to the public 
authorities for the purposes of monitoring obligations relating to pluralism. 
(d) Coherence 
This option would be difficult to fit in with the other initiatives concerning the media, but 
would not create problems of incompatibility. 
3. OPTION III (HARMONIZATION OF NATIONAL RULES ON MEDIA 
OWNERSHIP) 
(a) Achieving the Community objectives 
(i) The objectives of the Internal Market 
The consultations tended to confirm the analysis in the Green Paper17concerning the 
obstacles to the Internal Market created by the disparities between the national rules on 
media ownership. Consequently, to achieve in the media field the objectives of the 
Internal Market set out in Article 7a of the Treaty, it is necessary to adopt Community 
rules on media ownership. Such common rules would put an end to the disparities 
between national rules concerning the media and would make it possible in particular to 
do away with the two obstacles most often cited during the consultations, namely the lack 
of legal certainty, which restricts the exercise of the freedom of establishment and the free 
movement of media services and which consequently discourages direct investment in the 
media, and the distortions of competition created by the differences in the levels of 
restriction. The Community objective justifying action at Community level is the 
guaranteeing of the functioning of the Internal Market while safeguarding the requirement 
to preserve-pluralism by fixing certain limits on media ownership. 
See above, §II.B.l. 
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(ii) The objectives of the Internal Market in the context of the information society 
Community rules on media ownership would also contribute to the priorities set out in the 
White Paper entitled "Growth, competitiveness, employment. The challenges and ways 
forward into the 21st century" and would meet the concerns expressed in the report of the 
High Level Group. The five priorities set out in the White Paper for the implementation of 
the information society include the creation of a suitable regulatory environment, requiring 
in particular the removal of distortions of competition. In this respect, it is clear that the 
current situation as regards media ownership could have a negative effect on the launching 
of projects relating to the information society. As the White Paper explains, the success of 
the information society will depend on the development of the services transported by the 
networks. The greater the prospects for the profitable operation of bundles of varied 
services with a high added value (education, culture, distance selling, health, games, 
entertainment, practical guides, etc.), the easier it will be to recoup investment in 
infrastructure. Sound and audiovisual media and multimedia services will have an essential 
role to play in the short term. Development of these services is a precondition for the 
development of the infrastructure. This is therefore an essential strategic objective which 
requires special regulatory treatment of the question of media ownership for three 
reasons: 
- The obstacles to the free movement of services and to the right of establishment created 
by the current regulatory patchwork will limit the opportunity for operators of the 
traditional media to supply their services on the information highways. The regulatory 
obstacles to the free movement of information society services may result not only from 
the conditions relating to the content of the services but also from those relating to the 
supplier of those services. Thus, by limiting the opportunities to become a supplier, the 
disparities between national rules on media ownership also restrict the opportunity to 
supply more services and hence, to a certain extent, the viability of the information 
society project. The prospects for information highways thus have the effect of radically 
amplifying the disadvantages resulting from the lack of suitable European rules. 
- The scenario of dismantling all rules on media ownership is unrealistic and open to 
challenge. Some operators pointed out during the consultations that the very principle of 
having to have rules on media ownership would disappear because of the quantity of 
channels available. The Commission would observe first of all that the dismantling of 
national rules on media ownership is not yet a reality, whereas there is a real need now 
to make the media industry more competitive. The debate developing in some Member 
States is not about dismantling but about adaptation, in the form either of greater 
flexibility (liberalization) or of greater effectiveness in achieving the objective of 
- 34 -
pluralism. Secondly, from the substantive point of view, the question of external 
pluralism will persist even in an environment where frequencies are no longer scarce. 
The multiplication (by a factor of between 6 and 10) of the number of television 
channels does not prevent the fact that they could all be controlled, in theory, by a single 
operator. The possible reduction of the risk of concentration in control of the media 
does not make protection against the unacceptable consequences of its possible 
occurrence any less desirable. 
- That the national rules on media ownership are unsuited to the new information 
technologies was frequently emphasised during the consultations by the interests 
concerned and by the High Level Group. Most often, the method used to measure 
concentration was regarded as unsuitable because the criterion of the number of 
channels was inappropriate in a multichannel environment where frequencies were not 
scarce. Excessive restrictions on the multimedia were also challenged since they limited 
the possibility of using information highways to provide a bundle of media services. 
Lastly, the degree of concentration accepted was sometimes regarded as too restrictive 
in view of the competitiveness needed to cope with the globalization of the media 
industry. 
(Hi) The contribution of harmonization to pluralism 
Implementation of the Internal Market objectives will help to ensure that pluralism is 
better protected. The consultations highlighted that a common set of rules concerning 
media ownership would make the protection of pluralism more effective by: 
. avoiding "havens" which would enable operators who are not entitled to control a 
medium to circumvent this prohibition by broadcasting via satellite from another 
Member State which allowed such control. Even if, legally, the Member States receiving 
*the broadcasts in question could act to prevent them being retransmitted on their 
territory, putting such protection into practice could, in some cases, be risky from a 
technical and political viewpoint, for it might lead to disputes between national 
authorities (on a national level, there is the DSF affair in,Germany, where the authorities 
in two Lander are disputing the legality of authorizing a new channel). A common set 
of rules, by contrast, would have the effect of forcing Member States to ensure an 
equivalent level of protection, if necessary by introducing new provisions which some 
Member States did not have before; 
. properly covering cross-border activities.which are going to expand increasingly as a 
result of the new technologies. National rules are unsuitable as a means of dealing with 
cross-border activities, particularly in certain cases where they fail to take into account 
the effect on other Member States of a licence to broadcast a television channel which 
will be received in those Member States. In addition, since the provisions will be the 
same, it will be easier to ensure the transparency and monitoring of media ownership as 
the national authorities will have to look for the same type of information; 
-35-
. applying control at source rather than at reception. In accordance with the principle of 
home country control and of mutual trust, the competent national authority for granting 
an authorization or a licence will have to take into account not only the interest of 
citizens on its territory but also that of citizens in the other Member States who might be 
able to receive the channel in question. Thus, the public interest to be preserved does 
not stop at national borders but at the frontiers of the Community, and the European 
responsibilities of the national supervisory authorities will be clearly defined. 
Supervision and any prevention will be more effective, since they will be aimed directly 
at the enterprise in question rather than at intermediaries (cable distributors, 
manufacturers of receiving equipment, etc.); 
. improving the quality of the regulatory framework by taking the positive experiences of 
different Member States into account. The second round of consultations should make 
it possible to hold such an exchange of experience and satisfy the quality requirement 
which the objective of preserving pluralism imposes. Moreover, discussions at 
Community level help to escape the purely national interference that may occur in a 
national legislative process and affect its consistency and quality; 
. the criteria envisaged will provide more effective protection: the actual audience 
criterion would be a more effective way of guaranteeing pluralism than the number of 
channels, since a single channel may have a substantial audience and, hence, considerable 
influence. Conversely, an operator may be penalized for having several channels when 
they are in fact specialized channels with extremely small audiences, providing extra 
pluralism. The controller criteria, as a means of identifying the operator responsible for 
the media whose audience is measured, makes it possible to go beyond a formal 
definition (majority shareholder), which does not take account of the de facto control of 
the media; 
. not letting the media in certain countries be put at a disavantage or threatened 
compared with the media in other Member States simply because the latter are subject fo 
laxer rules on media ownership which have enabled them to acquire a certain size. 
(iv) The Community objectives and the European independent committee 
The consultations did not throw much light on the advantage of setting up a European 
independent committee to achieve the Community objectives, or on the gains that it would 
bring as regards the Internal Market. As far as the role of the committee is concerned, 
care should be taken not to set up a new type of committee. In this respect, the role 
desired by Parliament, i.e. that the committee should express an opinion on specific 
mergers, could clash with the principle of subsidiarity and be inconsistent with the basic 
principles of "Internal Market" control. In this regard, unless the particular circumstances 
-36-
so warrant, it is the competent national authorities which should, as the authority in 
ordinary law, apply directly the national rules transposing a Community rule without 
centralisation at Community level. The need for such a committee should therefore be 
assessed, at the appropriate time, in the light of the substance of the Community initiative. 
(b) Prospects for change 
Foreseeable developments indicate that action should be taken concerning the ownership 
of the media. Such action will (a) make it possible to create the structural conditions that 
are essential if advantage is to be taken of the new environment of globalization and (b) 
avoid the risks of uncoordinated national legislative reactions. 
The new technologies and the new economic environment. The new technologies (digital 
television, compression and convergence) will have a considerable impact on the 
development of the media market. In particular, the new technologies encourage the 
globalization of markets and will therefore have the effect of increasingly confronting the 
media industry with the competition from operators in third countries. The latter could be 
more competitive than European operators, either because of their position on their home 
market or because they are new entrants to the media industry and come from a sector 
where companies are much larger than traditional media operators. 
The political and legal environment will probably evolve in the short to medium term on 
account, first, of the pressure from traditional media operators to change it and, second, 
of political concern about the tendency tpwards vertical integration by 
telecommunications operators entering the market for information society services. 
(c) Impact 
(i) Political impact 
At European level. Option III would accord with the desire expressed by Parliament and 
the Economic and Social Committee, which have come out clearly in favour of a 
directive on media ownership in conjunction with the establishment of a committee. The 
Commission is aware that the selection of Option III would be a proportionate response 
to the concerns expressed by Parliament on several occasions. Option III would also be a 
response to the report of the High Level Group. 
At national level. Option III might possibly generate certain misunderstandings if action by 
the Community is interpreted as being m extension of the Community's powers. In this 
respect, the Commission would point out that the power to act in this matter derives from 
the Community objective of the establishment and functioning of the Internal Market 
(Article 7a of the Treaty), which, in this particular case, would require 
-37-
harmonization of the national rules on pluralism limiting media ownership so as to abolish 
the restrictions on freedom of establishment and the free movement of services. Action on 
media ownership would not therefore result in widening the scope of Community powers 
but would lie within the traditional framework of powers associated with the Internal 
Market. 
Setting up a committee of wise men, as envisaged in Option IIIc, could have a 
considerable impact on the institutional organization of broadcasting in the Member 
States. One of the suboptions in Option III proposes that a committee be set up consisting 
of representatives from the independent national authorities responsible for radio and 
television. Such authorities exist in certain countries only (e.g. the Medienanstalten in 
Germany, the ITC in the United Kingdom or the CSA in France). In other Member States, 
independent radio and television authorities do not exist, or if they do they have no real 
powers or simply an advisory role. If this option is selected therefore, it would be 
necessary to establish such independent authorities in those Member States which do not 
have them. Failing this, the committee would not be really representative, since some of 
its members would have no particular experience at national level. Given that it has not 
been clearly established how far the committee would make it possible for the objectives 
of the Union to be achieved more effectively, the Commission thinks it would be 
preferable to> wait for its proposal to be formally adopted before commenting on the 
advisability of proposing such a committee. It will then be a matter of determining, in 
particular, whether such independent authorities have been established in the Member 
States which do not yet have them. 
As to the choice of the instrument, and without prejudice to any other form the 
Community initiative might adopt, a regulation might be an effectvie solution since it 
would guarantee maximum legal certainty for the economic operators and avoid instances 
of poor transposition or even no transposition at all. However, the advantages of a 
directive might be particularly appropriate where the subject is politically so sensitive: it 
would provide a certain flexibility of transposition, would constitute a general framework 
allowing national authorities a certain discretion, and would give a special role to national 
parliaments. In view of the political impact which action on media ownership could have, 
the Commission believes therefore that it would be better to use a directive as a basis. 
(ii) Economic impact 
The economic impact of any rules will depend, obviously, on their content and is difficult 
to assess at this stage. However, the establishment of a single regulatory framework for 
media ownership has an economic impact in itself, irrespective of the content. 
On the supply side, common rules in the field of the media, and the legal certainty which 
this would provide, would have the effect of opening up access to the market and, in 
particular, of stimulating direct investment in the media sector. Such investment could 
-38-
come above all from new entrants. Hitherto, the specific limits in each country on access 
to media ownership, and the often politicised environment of media activities, have 
spawned "barony" strategies rather than industrial strategies and encouraged companies to 
structure their capital in a complex web of shareholdings. The adoption of European rules 
not connected with the specific circumstances of each Member States should encourage 
investors, who have hitherto been reluctant to invest in such a legally and politically 
complex and uncertain environment. 
Such investment could provoke restructuring and a tendency to concentration which must 
be covered by the rules. The new niche markets that will be developed as a result of the 
information society will be both risky and costly (on account of the technology used and 
uncertainty about the potential demand for new media services). Operators will therefore 
tend to minimise such risks through a strategy of alliance or acquisition and concentration 
so as to reduce the number of players and attain a sufficiently large critical mass to cover 
the necessary rates of investment. 
On the demand side, the decompartmentalisation of national markets would expand 
certain markets or create new ones. The niche markets of the special-interest media could 
be affected to a greater extent. While the resources supplied at national level for a niche 
market are often inadequate, they could be appropriate if the formula were applied 
extensively at European level. Rules on media ownership could enable those operators 
who wished to do so ( for economic reasons), to follow more easily an establishment 
strategy whereby a company would become established in each territory in order to adapt 
its media service to a particular public. Ownership, the niche concept and the know-how 
are European, but the "product" is adapted to each public. Traditional national markets 
might thus be subject to such an establishment strategy by operators from other Member 
States. Lastly, it should be noted that common rules would facilitate the development of 
markets for the cross-border dissemination of television or radio services by limiting the 
lack of legal certainty surrounding cross-border broadcasting by television channels not in 
conformity with national provisions on media ownership. Information highways will 
increase the opportunities for cross-border broadcasting not only for new services but for 
traditional media such as sound radio and will heighten the risk that operators will be 
accused of circumventing national legislation. 
To sum up, it is clear that opening up national markets with regard to media ownership 
should encourage direct investment in the media sector, particularly from new entrants, 
and result in a trend towards restructuring and concentration. The advantage of 
establishing a safety net to avoid media concentrations which threaten pluralism might 
therefore become clear, as might 
-39-
the advantage of determining that net at Community level. As well as there being a safety 
standard guaranteeing pluralism, investment in the media sector would be stimulated by 
the openness of the market and the legal certainty provided by a single European 
regulatory framework. By contrast, if the safety net were still determined at national level, 
investment would be discouraged and the competitiveness of national operators would be 
limited by the strategies of "national champions" and "barons" and by complex, 
fragmented shareholdings. Lastly, the importance of the quality of the content of the 
common rules is just as clear, since it should have to fulfil its fundamental purpose of 
preventing concentrations which threaten pluralism while not being disproportionate so as 
to facilitate as much investment as possible in the media sector. 
(d) Coherence 
Option III is connected with the Community's other current initiatives relating to the 
media. 
The White Paper on Growth, competitiveness and employment, and the report of the 
High Level Group. As emphasised above, Option III accords with the logic of the 
approach adopted in the White Paper to bringing about the information society and with 
the proposals of the High Level Group. An initiative on media ownership would be one of 
the measures needed to adapt the regulatory framework to the information society. The 
objective of making the media industry more competitive will have to bo taken into 
account when determining the substance of any measure. 
The Green Paper on Strategy options to strengthen the European programme industry 
in the context of the audiovisual policy of the European Union. The Green Paper 
initiated a debate on a number of strategic options for the audiovisual programmes 
industry. This Green Paper differs from that on pluralism and media concentration in 
scope, which does not cover all the media but only the audiovisual sector, and in its 
object, which does not relate to ownership of the media but to the promotion of the 
production and distribution of programmes. 
Digital Video Broadcasting. An initiative on media ownership is also fully in keeping with 
the logic of the current work on digital video broadcasting which should result in both 
operators and suppliers of services being guaranteed the widest possible access to the new 
technologies. 
Competition policy. An initiative on media ownership would be consistent with and 
complementary to the application of competition law. Its objective would not be to 
safeguard competition but to safeguard pluralism through rules on media ownership to the 
extent needed to ensure the proper functioning of the Internal Market. 
- 40 -
The possibility of taking other measures to promote pluralism is already provided for by 
Article 21(3) of the Merger Control Regulation. The substance of this initiative should be 
strictly proportionate to the general interest ( preservation of pluralism) so as to provide 
maximum security in this respect but without duplicating efforts or embracing situations 
which may be covered by competition law. 
B. Conclusions 
Having analysed the results of the consultation process, which lasted more than a year, 
the Commission has reached the conclusion that it should, in view of the challenges posed 
by the safeguarding of media pluralism, launch a second round of consultation with all the 
parties concerned and in close contact with the Member States. 
This second stage of the consultation process will be useful to confirm or reject the need 
for a Community initiative, especially taking into consideration the development of the 
new technologies, and in the event of an intiative being proposed, it will give the 
Commission the opportunity to deepen the questions concerning its potential content in 
order to assure its quality. 
One could hypothesise that such a Community initiative could be based on the following 
lines: 
1. THE SCOPE OF THE DEBATE 
The obstacles to the functioning of the Internal Market, identified in the Green Paper and 
created by the disparities between national rules on media ownership, and their potential 
negative effects on pluralism, have recently assumed a new dimension. Regarded at first 
as potential, these obstacles are becoming increasingly apparent and tangible. The 
globalization of the media industry and the development of new information technologies 
make it essential to transform the media sector into a genuine, competitive European 
industry capable of energetically playing its specific role in the operation of democracy. 
Accordingly, the completion of the Internal Market is both a necessity and an opportunity. 
The national regulatory framework for media ownership will evolve, or is already doing so 
in some Member States, so as to adapt to this new situation. As the report of the High 
Level Group emphasises, the prospect of such uncoordinated legislative activity threatens 
to accentuate still further the harmful effects of the disparities between national rules on 
the new media services. Isolated, merely national responses to the globalization of the 
media would threaten to fragment the Internal Market still further and might rapidly 
become ineffective or even counterproductive by preventing the economic development of 
media operators, which is essential to pluralism, and the cross-border movement of their 
services. 
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2. A MORE DETAILED EXAMINATION OF CERTAIN QUESTIONS 
RELATING TO THE CONTENT OF AN INITIATIVE 
Hitherto, the consultations have largely concerned the question of the need for common 
rules at European level on media ownership. They have confirmed, however, that the 
broad guidelines laid down in the Green Paper concerning the possible architecture of an 
initiative on media ownership provide a good starting point. Without prejudice to the 
conclusions the Commission might draw from the second stage of the consultation 
process, the latter will have to examine the following questions in particular: 
(a) A balanced general approach 
The object of the initiative would be to enable operators fully to exploit the opportunities 
created by the Internal Market, in particular freedom of establishment for media 
companies and the free movement of media services, and at the same time to maintain 
pluralism by preventing concentration of the media. The initiative would establish both the 
maximum legal certainty needed for investment in the media sector and a safety net 
preventing cases of concentration which threatened pluralism and which cannot be 
combated by the traditional rules of competition law. A stable legal framework which 
would not weaken the protection of pluralism in the Member States and which would 
guarantee an equivalent level of protection within the Union. 
The conditions relating to media ownership which should be applied by the competent 
national authorities when they grant an authorization or a licence for a new broadcasting 
medium (television or radio) or when control is newly acquired of an existing broadcasting 
medium, should be examined on the basis of the orientations foreseen by the Green Paper. 
Given the scope of current national legislation, these conditions should apply at least to 
those cases where an operator applying for a licence for a radio station or television 
channel already controls a radio station or television channel (monomedia radio or 
monomedia television concentration) and where the operator applying for a radio or 
television licence already controls a medium of a different type such as a newspaper 
publishing firm (multimedia concentration). The question of the coverage of mergers 
between press enterprises (monomedia press concentration) will have to be examined 
during the second round of consultations, taking into account the fact that only two 
Member States have laid down specific rules in their legislation. In accordance with the 
principle of proportionality, these conditions should not go beyond what is necessary to 
achieve the fixed objectivés and should therefore strike a balance between the need to 
guarantee the diversity of media controllers and the need to facilitate access to media 
activities so as to promote the development of the media industry. During the new 
consultations, therefore, the implications in terms of the degree of constraint of the 
various conditions that might be contemplated will have to be determined in order to be 
certain of their proportionality. In the light of the analysis in the Green Paper of the 
substance of a possible initiative,18 it should cover: the definition of media "controller"; the 
limitation 
Part Four, Chapter 5, § I.C 
- 42 -
of certain cases of cumulative control over various media companies simultaneously by a 
single person; the use, to this end, of the criteria of the distribution area covered and the 
actual media audience served by a single media controller; the question of persons who 
are excluded from becoming a media controller ("disqualified persons"); the transparency 
and exchange of information on media control; and the cases in which there is a change of 
media controller. 
(b) The criterion of the actual audience 
As indicated in the Green Paper, it is logical to apply the criterion of the actual audience 
since, it being a question of the pluralism of the media, it is necessary to assess the effects 
of the concentration of media control on the "citizen consumer". Compared with the 
criterion of the number of channels that can be controlled by a single person, the criterion 
of the actual audience has the advantage of being more suited to the new environment of 
information technologies and the information society, which will lead to a multiplicity of 
channels. It would also be economically more sensitive and less harsh (the creation of a 
bundle of specialized channels would be facilitated, whereas the criterion of the number of 
channels could prevent this) and more effective as regards preserving pluralism 
(depending on its actual audience, a single channel can frustrate pluralism). Compared 
with market share, the actual audience has the advantage that it does not duplicate the 
efforts of competition law, which uses this criterion to assess the behaviour of economic 
operators among themselves (taking account, in particular, of earnings) and not to 
evaluate as such the impact of media control on the "citizen consumer". The criterion of 
the actual audience raises a number of questions, however, which have prompted the 
Commission to launch a feasibility study. This examines, in particular, the comparability 
and compatibility of the different national systems of audience measurement, the types of 
audience measurement that can be used and the possibility of using a single composite 
criterion or of combining several types of measurement depending on the configuration of 
the media in question. 
(c) The criterion of the media controller 
The task here will be to find a definition which makes it possible, when a new channel is 
launched by an operator (or when he acquires control of an existing channel), to determine 
what media are already controlled by the operator and broadcast or distributed over the 
same area as that of the new channel. Once the various media have been inventoried, it 
will be possible to determine the total actual audience controlled by a single operator. 
The advantage of determining who controls what media is that it will then be possible to 
provide, at one and the same time, the legal certainty necessary for investment, sufficient 
effectiveness for avoiding circumvention and a high level of feasibility resulting in easy 
implementation, and to take account of new equilibria between the players resulting 
- 43 -
from the new technologies. The Commission has also initiated a study on this subject, to 
find a definition of "controller" which will reflect experience at national level and will 
dovetail with the various definitions of control already used in competition law and 
company law. 
The issue of "disqualified" persons. In defining control, it will also be necessary to 
determine, as is done in certain national laws, the categories of person who cannot 
become a media controller on account of their duties or activities. 
(d) Other questions 
Other questions will have to be examined, such as the legal form which the initiative 
should take, the question of the coverage of monomedia press concentration, the question 
of the need for an independent committee and the matters raised by the evolution of the 
new technologies, such as the definition of the new media and the link with the problems 
of access. 
(e) Consultations on these questions 
The Commission is aware of the need to examine more thoroughly certain questions 
concerning content before the initiative is presented. In the months ahead, specific 
consultations on these matters will be held with the interests concerned (in particular those 
who have already taken part in the consultations on the need for action). The analysis of 
the results of the two studies referred to above will be distributed in addition to a 
questionnaire on the method envisaged for regulating access to ownership. The 
Commission is keen to maintain close contact with Parliament and the national authorities 
throughout this process. The competent national authorities will be requested to provide 
contributions to the debate. 
3. DEVELOPMENT OF THE NETWORK OF INTERESTS CONCERNED IN 
MEDIA OWNERSHIP 
The Commission is particularly anxious to maintain and develop the links which Were 
forged with MEPs and the interests concerned during the consultation process. The value 
of the network which emerged comes partly from its composition - MEPs, industry 
associations and individual operators - and partly from its multisectoral nature, comprising 
as it does operators with activities in radio, television, the press and multimedia. These 
different sectors are not always in the habit of comparing their interests, which are 
increasingly common however, as soon as the subject of who owns the media is broached. 
This flexible and informal structure should be developed, in particular to include certain 
Member States whose operators have not been much in evidence hitherto. 
- 44 -
The network, which deserves to be upgraded, could prefigure, in the medium term, a 
more multisectoral structure comprising all services using information highways. The 
Commission is encouraging industry circles to organize themselves accordingly, so as to 
promote the expansion of information society services. 
C. Timetable 
The consultations will be launched in the autumn with a view to receiving the observations 
from all interested parties during the winter of 1994/95. The consultations will start with 
the distribution of the results of the studies and a questionnaire. It will be in the light of 
these consultations that a potential initiative could be presented during 1995. 
ANNEX 1 
LIST OF NON CONFIDENTIAL WRITTEN COMMENTS 
I Comments on the Green Paper 
Comments from European federations or associations 
Association des Télévision Commerciales Européennes (ACT) 
European Association of Advertising Agencies (EAAA) 
Association Européenne des Radios (AER) 
European Advertising Tripartite (EAT) 
European Committee of Trade Unions in Arts, Mass Media and Entertainment (EGAKU) 
European Publishers Council (EPC) 
Fédération Européenne des Radios Libres (FERL) 
European Group of the International Federation of Journalists (IF J) 
World Federation of Advertisers (WFA) 
Comité des Industries Cinématographiques et audiovisuelles des Communautés 
Européennes et de l'Europe extracommunautaire (CICCE) 
European Broadcasting Union/Union Européenne de Radio-Télévision (EBUAJER) 
AMARC-EUROPE 
European Newspaper Publishers' Association (ÈNPA-CAEJ) 
Europàische Grafische Fôderation 
Comments from interested parties other than European federations or 
associations 
Broadcasting Entertainment Cinematograph & Theatre Union (BECTU) 
Channel Four Television 
Europàisches Medieninstitut 
Editoriale l'Espresso 
ITV 
Institute for Information Law (IVIR) 
New International pic. 
Pearson pic. 
Zweites Deutsches Fernsehen (ZDF)/Arbeitsgemeinschaft der offentlichrechtlichen 
Rundfunkanstalten der Bundesrepublik Deutschland (ARD) 
Independent Television Commission (ITC) 
Fininvest Comunicazioni 
British Sky Broadcasting Limited (BSkyB) 
Verband Privater Rundfunk und Telekommunikation e. V. (VPRT) 
Federazione Italiana Editori Giornali 
RTL plus Deutschland Fernsehen 
Federazione Radio Televisioni (FRT) 
Reuters 
RCS Editori "Rizzoli Corriere della Serza" 
Bundesverband Deutscher Zeitungsverleger e.V. 
II Replies to the complementary questionnaire 
Comments from European federations or associations 
Association des Télévisions Commerciales Européenes (ACT) 
Association Européenne des Radios (AER) 
European Broadcasting Union/union Européenne de Radio-Télévision (EBU/UER) 
Fédération Graphique Européenne (EGF) 
European Group of Television Advertising (EGTA) 
Association Européenne des Editeurs de Journaux (ENP A) 
European Publishers Council (EPC) 
Fédération des Associations d'Editeurs de Périodiques de la CE (FAEP) 
Fédérations des Editeurs européens/Fédération of European Publishers (FEE/FEP) 
Groupement européen des Sociétés d'Auteurs et Compositeurs (GESAC) 
International Federation of Journalists (IFJ) 
Comments from interested parties other than European federations or 
associations 
Bertelsmann AG 
Channel Four Television 
Fininvest Comunicazioni 
Federazione Italiana Editori Giornali 
FUNK Fragen Unabhângiger Neutraler Kommunikation 
Global Media Italia SRL 
ITC Independent Television Commission 
ITV Network 
L'Espresso 
News International 
OLON Organisatie van Lokale Omroepen in Nederland 
Person pic 
RCS Editori 
RTL Pluls Deutschland Fernsehen 
VDZ Verband Deutscher Zeitschriftenverleger e. V. 
Zweites Deutsches Fernsehen (ZDF) 
-w-
ANNEX2 
INVITATION LIST FOR HEARING 
Association des Télévisions commerciales (ACT) 
Association européenne des Radios commerciales (AER) 
Association internationale des Télédistributeurs (AID) 
Association Mondiale des Radiodiffuseurs Communautaires (AMARC + AMARC-
EUROPE) 
Bureau européen des Unions des Consommateurs (BEUC) 
Confédération des Associations d'Editeurs de Journaux (CAEJ) 
Coordination européenne des Producteurs indépendants (CEPI) 
Confédération européenne des Syndicats (CES/ETUC) 
Comité des Industries cinématographiques des Communautés européennes (CICCE) 
European Association of Advertising Agencies (EAAA) 
European Alliance of Press Agencies (EAPA) (Belga Direction) 
Europâischer GewerkschaftsausschuG fur Kunst, Medien und Unterhaltung/Secretariado 
Internacional de los Sindicatos de Artes, Medios de Comunicaciôn y Espectâculo 
(EGAKU/ISETU) 
European Advertising Tripartite (EAT) 
European Films Producer Association (EFP A) 
European Group of Television Advertising (EGTA) 
European Graphical Federation (EGF/FGE) 
European Publisher Council (EPC) 
European Programmes Providers Group (EPPG) 
Fédération des Associations des Editeurs de Périodiques (FAEP) 
Fédération des Editeurs européens (FEP/FEE) 
Fédération européenne des Réalisateurs de l'Audiovisuel (FERA) 
Fédération européenne des Radios Libres (FERL) 
Fédération européenne des Téléspectateurs (FET/LA TELE EST A NOUS) 
Fédération Internationale des Artistes (FIA) 
Fédération Internationale des Associations de Distributeurs (FIAD) 
Fédération Internationale des Associations de Producteurs de Films (FIAPF) 
Fédération Internationale des Journalistes (FIJ) 
Fédération Internationale de Musiciens (FIM) 
Fédération Internationale des Producteurs de Film Indépendant (FIPFI) 
Fédération Internationale des Syndicats des Travailleurs de l'Audiovisuel (FISTAV) 
Groupement des Sociétés d'Auteurs et Compositeurs (GESAC) 
Fédération Internationale des Producteurs de Phonographes (IFPI) 
-4«-
Union européenne de Radiodiffusion (UER/EBU) 
Union des Confédérations de l'Industrie et des Employeurs d'Europe (UNICE) 
World Federation of Advertisers (WFA) 
The EC Committee 
Eureka Audiovisual 
Conseil de l'Europe 
Conseil de Ministres 
Parlement européen 
Comité Economique et Social (CES) 
European Free Trade Association (EFTA) 
UNESCO 
Etat membres 
_ l|0) — Annex 3 
SUMMARY 
The purpose of the Green Paper Is to present an initial assessment of the 
need for Community action concerning concentration in the media 
(Television, radio, press) together with the different approaches which the 
Commission might adopt once It has consulted the parties concerned. 
In recent years. Parliament has expressed its concern about this question 
on several occasions, In particular In its resolutions of 15 February 1990 
and 16 September 1992, which call on the Commission to propose regulatory 
measures so as to restrict concentration in the media and safeguard 
plural ism. 
In the light of the Community's objectives and powers, the results of this 
look Into the need for action can be summarized as follows: 
1. Protection of pluralism as such Is primarily a matter for the 
Member States. In working towards its objectives and exercising its 
powers, the Community must, however, ensure that its own activities and 
those for which it has competence do not adversely affect pluralism; In 
this respect with regard solely to the objective of safeguarding pluralism, 
there would not appear to be any need for action at Community level, since 
national mechanisms for protecting pluralism can be applied to situations 
with a Community dimension. Thus, should a broadcaster established in 
another Member State genuinely circumvent legislation on pluralism, the 
Member State of reception could, subject to observing the conditions laid 
down in the case law of the Court of Justice, restrict the free movement of 
such broadcasts. Similarly, where a merger declared to be compatible with 
the common market under the Merger Control Regulation is harmful to 
pluralism, the Member State would still be able to take appropriate 
measures to ensure that pluralism is protected. 
-so-
2. This capacity of the Member States to safeguard pluralism through a 
national regulatory framework for mergers may, however, lead to 
Interference within the area without frontiers consisting of the Community. 
Since the mid-1980s, laws on media ownership have been Introduced and are 
developing in divergent ways. Such laws on pluralism, which consist in 
particular in limiting maximum holdings in media companies and in 
preventing cumulative control of, or holdings in, several media companies 
at once, must be distinguished from the discriminatory restrictions which 
limit ownership by foreigners and which are therefore incompatible with the 
Treaty. 
3. Disparities between national measures aiming to safeguard pluralism 
may, at least potentially, impact upon the functioning of this area without 
frontiers : 
- a Member State could possibly restrict the free movement of broadcasts 
in the event of genuine circumvention of one of these laws; 
- the establishment of media companies in another Member State could be 
limited; 
- restrictions and distortions of competition are introduced; 
- uncertainty in the law, harmful to the competitiveness of companies, 
could result from diverging views on what constitutes circumvention; 
- such laws limit access to the activities and to the ownership of the 
media, when access should be facilitated so as to permit the 
establishment of the single market and secure the competitiveness of 
media companies which pluralism requires. 
4. The restrictions on ownership at the root of these effects are not, as 
such, incompatible with Community law. They are not discriminatory and 
pursue a public-interest objective associated with freedom of expression. 
5. Restrictions on media ownership cannot be replaced Just by applying 
general competition law and in particular, at Community level, the Merger 
Control Regulation. The latter can prevent mergers which adversely affect 
pluralism only in so far as they also affect competition, which is not 
always the case. 
-5^1-
6. In the light of this analysis, there are three different options among 
which the Commission may choose and on which the Commission would like to 
know the opinions of the parties concerned: 
(I) taking no action; 
(II) proposing a recommendation to enhance transparency; 
(ill) proposing the harmonization of national restrictions on media 
ownership by 
(a) a Council Directive, or 
(b) a Council regulation, or 
(c) a directive or a regulation together with an Independent 
committee. 
The Commission does not currently have a particular preference for, any one 
of these options and leaves open the possibility for other eventual 
alternatives. It wishes to know the views of interested parties on these 
options as well as on the questions posed in this Green paper which are 
summarised below: 
QUESTION 1 
The Commission would welcome the views of Interested parties regarding the 
needs for action, and In particular on: 
- any cases where the Community dimension of media activity has meant that 
restrictions on media ownership Imposed for the purpose of maintaining 
pluralism have become Ineffective, for example because they are 
circumvented or because of transparency problems; 
- the existence of restrictions or restrictive effects other than those 
Identified above; 
- practical Instances where ownership restrictions have actually Impeded 
the activity of economic operators In the sector; 
- s & -
- the sectors and act Iv ft les which are especially affected by restrictions 
on ownership (for example. Is the press subject to restrictive effects not 
only In respect of multimedia aspects but also In respect of monomedia 
aspects?). 
QUESTION 2 
The Commission would welcome the views of Interested parties on whether the 
needs Identified are of sufficient Importance, In the light of Community 
objectives, to require action In the media Industry and, If so, when such 
action should be taken. 
QUESTION 3 
The Commission would welcome the views of Interested parties on the 
effectiveness. In the light of Community object Ives, of act/on which would 
be taken solely at Member State level. 
QUESTION 4 
The Commission would welcome the views of Interested parties on the content 
of a possible harmonization Instrument as envisaged above, and In 
particular on the two variants for Its scope, on the use of the real 
audience as a basis for setting thresholds, on the demarcation of 
distribution areas, on any other possible references, and on ways of 
defining the concept of control 1er. 
QUESTION 5 
The Commission would welcome the views of interested parties on the 
desirability of action to promote transparency which would be separate from 
a harmonization instrument. 
QUESTION 6 
The Commission would welcome the views of interested parties on the 
desirabHIty of setting up a body, with competence for media concentration. 
-SY­
QUEST I ON 7 
The. Commission would welcome the views of interested parties on each of 
these foreseeable options. 
' Annex 4 
14.02.94 Official Journal of the European Communities No C 44/177 
. • « Thursday, 20 January 1994 
9. Calls on the Commission to agree to change its legal bases in accordance with the wishes 
expressed by Parliament; 
10. Asks for proposals for which the consultation and cooperation procedures have been 
replaced by the assent procedure to be submitted to it again; 
11. Instructs its President to forward this resolution.and the report of its committee to the 
Commission and the Council. 
I 
10- Pluralism and media concentration 
A3-0435/93 
Resolution on the Commission Green Paper 'Pluralism and media concentration in the 
internal market' 
The European Parliament, 
— having regard to the Commission Green Paper 'Pluralism and media concentration in the 
internal market' (COM(92)0480 — C3-0035/93), 
— having regard to Rule 51 of its Rules of Procedure, 
— having regard to the report of the Committee on Culture, Youth, Education and th_- Media 
and the opinions of the Committee on Legal Affairs and Citizens' Rights and the Committee 
on Economic and Monetary Affairs and Industrial Policy (A3-0435/93), 
A. having regard to its resolutions of 15 February 1990 on media takeovers and mergers (') and 
16 September 1992 on media concentration and diversity of opinions (2), in which it drew 
attention to the dangers of media concentration for diversity of opinion and pluralism and 
expressed the view that national media legislation alone was no longer sufficient to 
safeguard diversity of opinion and pluralism in Europe, 
B. welcoming the fact that the Commission has considered the problem, presented its Green 
Paper "Pluralism and media concentration in the internal market' and, in advance of 
Community measures, has already initiated a comprehensive consultation process with the 
parlies concerned, 
C. whereas media concentration and cross-ownership arc increasing in the Community; 
whereas, once established, such cross-ownership, where it reduces diversity of opinion, is 
difficult to reverse, 
D. convinced that legislation should therefore be adopted without delay to enable the 
Community, where necessary, to take measures to limit media concentration on a European 
scale which threatens diversity of opinion and pluralism, 
E. whereas there is a need to harmonize national legislation which imposes restrictions on the 
media in order firstly to prevent them being evaded and secondly to safeguard the operation 
of the internal market, thereby at the same time increasing the competitiveness of the 
European media, 
F. having regard to the important contribution made by public broadcasting to promoting 
diversity of opinion, pluralism and general education; whereas such broadcasting is subject 
to different market conditions from commercial broadcasting, 
G. whereas the markci share of public non-commercial broadcasting in some Member States 
has been declining sharply since the advent of commercial broadcasting. 
(•) OJ C6S. 19.3.1990. p. 137. 
(:) OJC2S4. 2.11.1992, p. 44. 
No C 44/178 Official Journal of the European Communities 14.02.94 
Thursday, 20 January 1994 
H. whereas the change towards multi-media is coming fast as a result of technological 
developments; whereas a Directive is needed to take account of its impact on the mass 
media, 
I. whereas the Community should accede to the European Convention on Human Rights and 
Fundamental Freedoms and thereby take on the obligation to protect freedom ofexpression * 
and the diversity deriving therefrom and should contribute to further development of that 
right, inter alia in relation to countries with which it has concluded association or other 
agreements, 
J. noting that the world market for media (TV, radio, written material) is huge, that today the 
EC has the largest individual share of it, and that this sector has great employment potential 
for the future, 
K. whereas the internal market for the media sector can provide more profits, jobs and cultural 1 
diversity, and hence lead to a greater readiness to invest, more training places and more ! 
research and development activity in the sector, J 
« 
L. bearing in mind that legislation on media concentration must take into account not only the . 
economic dimension but also, and to an equal degree, the cultural dimension, and that 
strengthening the overall competitiveness of European media must be accompanied by 
strengthening of economic and cultural pluralism in this sector, 
M. aware that the control of a large audience share within a particular area by one individual or 
company poses a danger to pluralism, cultural diversity and the quality of the media, by 
lessening media autonomy and independence, 
N. whereas pluralism in the media is an essential element in the construction of the European ( 
Union in accordance with the requirements of democracy and respect for human rights laid 
down by Article F of the Treaty on European Union, 
O. whereas the disparities between Member States' legislation on pluralism and concentration 
may represent an obstacle to the operation of the internal market, particularly as regards the 
freedom to provide services and freedom of establishment, 
1. Calls on the Commission to submit a proposal for a Directive firstly harmonizing national 
restrictions on media concentration and secondly enabling the Community to intervene in the 
event of concentration which endangers pluralism on a European scale; in doing so the 
Commission should consult the parties concerned in accordance with Option III, Sub-option c, as 
referred to in the Green Paper (Directive or Regulation in conjunction with an independent 
committee); the following criteria should apply: 
(a) it should cover the entire media sector, i.e. the print media as well as the audiovisual media; 
only in this way can multimedia concentration (cross ownership) be assessed more 
effectively and, if necessary, limited, 
(b) it must not be based on the issue of formal ownership alone: it must be possible to investigate 
whether a 'dominant influence' exists for other reasons (e.g. sleeping partners, alliances, 
dependence on one programme supplier or one advertiser), 
(c) certain groups/companies should be excluded from participation in particular media sectors 
(disqualified persons): for example, advertising agencies should not be allowed to run 
newspapers or radio or television companies and vice versa, 
(d) syndicates for the purchase of advertising space should likewise be subject to stringent 
national and Community provisions governing competition, to ensure that they cannot 
influence the editorial lines of the various media either directly or indirectly; the linking of 
advertising and programming (barter) should be restricted, 
(e) links involving programme suppliers, including holders of programme rights and pro­
gramme producers, on the one hand, and broadcasters on the other hand, should be subject to 
a strict application of the law on competition. 
-T6-
14 02.94 Official Journal of the European Communities No C 44/179 
Thursday, 20 January 1994 
(f) the principle of absolute transparency of ownership should apply; radio and television 
broadcasters should be compelled to reveal full details of ownership and trusteeships and any 
other relevant economic data (by analogy with cartel law); changes in ownership should be 
reported. Independent experts appointed by the supervisory authorities for the media and 
required to maintain confidentiality must be allowed to inspect the relevant documents, 
including tax documents, upon request; refusal to disclose such information on the grounds 
that it is confidential for commercial reasons should be prohibited, 
(g) in so far as, by virtue of effective safeguards provided by national legislation, a broadcasting 
organization is structured independently and in such a manner as to ensure internal diversity, 
and operates on a non-profit-making basis, it should be exempted from the provisions of the 
Directive except those on transparency, 
(h) in accordance with the subsidiarity principle, any Community action must allow the Member 
States sufficient scope to meet the particular requirements of the media in their country. This 
applies above all to the organizational structure of the media, programming rules and 
positive measures including those to promote non-commercial radio stations or independent 
newspapers, 
(i) it must be possible, inter alia for Member States, to respond to new and currently 
unforeseeable threats to diversity of opinion, for example if telephone companies offer to 
distribute programmes, 
(j) the independent committee or European Media Council should have a purely advisory 
function: with the support of the national institutions responsible for the media, the following 
tasks and powers should be entrusted to it: 
— observing developments in the media both in Europe and elsewhere, including 
technical/economic and social trends; submitting a report on the media every two years, 
— ensuring complete transparency with regard to cross-ownership (disclosure of all private 
and public share-holdings), 
— submitting to the Commission reports and opinions on planned mergers between 
enterprises on a Community or European scale, 
— making proposals to the Commission concerning possible déconcentration measures; 
2. Takes the view that the proportion of media consumers reached by a particular media 
proprietor (controller) is an appropriate additional criterion for assessing the degree of 
concentration in the media; 
3. Takes the view that the quality and diversity of this sector (how this industry develops and 
the information it seeks to provide) is at the very heart of democracy; 
4. Expects the harmonization of national provisions restricting media concentration to afford a 
high level of protection to pluralism and diversity of opinion and expects that, at the same time, 
access to the market for new media enterprises will be eased; 
5. Calls on the Community and Member States to do their utmost to ensure that the EC 
Directive is subsequently complemented by a Council of Europe Convention in order to take into 
account the pan-European dimension of media concentration; 
6. Calls on the Commission once again to present proposals concerning the catalogue of 
measures set out in the European Parliament's resolution of 16 September 1992 and propose an 
action programme to promote pluralism and diversity of opinion, including, in particular: 
— a proposal for a Directive on the right of access to information from Community and national 
authorities, along the lines of the US Freedom of Information Act, 
— a European media code to maintain professional ethics, which should ideally be drawn up by 
the parties concerned, 
— a framework Directive safeguarding journalistic and editorial independence in all media; 
7. Instructs its President to forward this resolution to the Commission and the Council. 
10. 11.93 •-s-y-
Official Journal of the European Communities Annex 5 
No C 304/17 
Opinion on. the Commission Green Paper on pluralism and media concentration in the 
internal market - an assessment of the need for Community action 
(93/C 304/07) 
On 15 February 1993, the Commission decided to consult the Economic and Social Committee, 
under Article 198 of the Treaty establishing the European Economic Community, on the 
Commission Green Paper on pluralism and media concentration in the internal market -
an assessment of the need for Community action. 
The Section for Industry, Commerce, Crafts and Services, which was responsible for preparing 
the Committee's work on the subject, adopted its Opinion on 7 July 1993. The Rapporteur 
was Mr Flum. 
At its 308th Plenary Session (meeting of 22 September 1993) the Economic and Social 
Committee adopted the following Opinion by a majority with seven votes against and 
15 abstentions. 
The Committee welcomes the publication of the Green 
Paper, and particularly appreciates the comprehensive 
picture it provides of the existing legal situarion in the 
Member States. 
The Committee also welcomes the tor m taken by the 
Green Paper which, instead of making precipitate state­
ments, paves the way for extensive dialogue between 
the various groups in society. 
1. Introduction 
1.1. The ESC has played a constructive part in the 
formulation of Community options for the electronic 
media during and since the preparation of the Council 
Directive cf 3 October 1989 (*) on the coordination of 
certain provisions laid down by law, regulation or 
administrative action in Member States concerning the 
pursuit o\ television broadcasting activities; (the tele­vision without frontiers Directive). It made a direct 
contribution to the drafting of that Directive by propos­
ing important elements. 
1.2. In view of the discussion in the Green Paper, it 
seems necessary to restate the basic principles of ESC 
media policy to date. Thus, in its Opinion of 25 Sep­
tember 1985 (2) on the Green Paper on the establishment 
of the common market for broadcasting, especially by 
satellite and cable (3), the Committee stated that it was 
not the task of the Community to interfere with the 
media structure of individual Member States. The 
licensing of television and radio organizations should 
remain the sole responsibility of the Member State 
concerned, although care had to be taken to ensure 
there was no threat to the pluralism of information and 
opinions in the Community. In the same Opinion, the 
Committee called on the Commission to examine to 
what extent new proposals were needed to align 
national provisions on programme content in order to 
ensure'uniform vernis oi competition; in this connec­
tion, it made parxculnr reference to the following areas: 
('• Ol No L 29>>, 10. i9.S9. (-5 OJ No <: s;;.:. 25. •). i°s>\ p. 1.' 
C" Doc. COMJS-i; "«);) i'ii!.-:!. 
s&-
No C 304/18 Official Journal of the European Communities 10. 11. 93 
protecting minors, right of reply, copyright for authors, 
performers and producers, television advertising.-From 
the present standpoint, it was also particularly 
important to examine in greater detail the influence of 
television advertising and the independence and. com­
pleteness of information broadcasts arid the influence 
of advertising agencies on the trade in programmes. In 
its Resolution on media concentration and diversity 
of opinions of 16 September 1992 (*), the European 
Parliament expressed concern *at increasing concen­
tration in the advertising business and its substantial 
influence on programming and media content*; the 
Commission. also intends to investigate the situation 
with regard to advertising. 
13. In its Opinion of 1 July 1987 (2) on the Proposal 
for a Council Directive on the coordination of certain 
provisions laid down by law, regulation or administrât-. 
ivc action in Member States concerning the pursuit of 
broadcasting activities (3) the Committee expressed the 
view that the national legislative and administrative, 
measures to be taken in broadcasting must steer clear 
of any arrangements which might tend to create a 
dominant opinion-former. In its Additional Opinion of 
27 April 1989 (4) the Committee again stressed the need 
to prevent any acts which could promote the creation 
of a dominant position and thereby restrict pluralism 
and freedom of information. The Committee is 
extremely encouraged to note that the television Direc­
tive adopted by the Council contains a section reg­
ulating the right of reply of all natural and legal persons 
whose lawful interests arc damaged by false statements 
on television. The Economic and Social Committee was 
the first Community body to demand this right in 
the course of the drafting process, being subsequently 
followed by Parliament, the Commission and the 
Council. Full account has also been taken of the Com­
mittee's comments on copyright, the protection of chil­
dren and minors and advertising, with the latter being 
banned in the case of tobacco products and prescription 
drugs for medical treatment. 
1.4. In its Opinion of 20 December 1989 (5) on a 
fresh boost for culture in the European Community (6), 
the Committee noted that the development of huge 
European media corporations was hallmarked by glo­
balization, interlinking and the establishment of con­
glomerates. Appropriate anti-trust measures were there­
fore needed. The Committee urged the Commission to 
consider setting down more clearly the limits to cross-
holdings and media monopolization, notably through 
measures requiring transparency of financial trans­
actions and the full disclosure of international holdings. It also proposed the creation of a European Media: 
Observatory in order to monitor and, where appropri­
ate, curb such economic concentrations, and to help 
promote and ensure freedom of information and cul­
tural pluralism. 
1.5. The Committee also called for back-up EC 
measures to guarantee minimum protection for pro­
fessional standards, ethics, editorial autonomy and free­
dom of conscience for all media journalists and 
employees. Likewise, EC instruments were needed in 
order to ensure basic collective contractual rights and 
social insurance cover for employees involved in the 
media, and to ensure that transnational corporations 
respected acquired rights and international labour con­
ventions. 
1.6. Lastly, in its Opinion of 20 September 1990 (7) 
on the - Commission Communication to the Council 
•accompanied by two proposals for Council Decisions 
relating to an action programme to promote the devel­
opment of the European audiovisual industry — 
'Media' 1991-1995 (8), the Committee adopted the fol­
lowing stance: 'Different kinds of programme-makers 
with varying legal status, i.e. both public- and private-
sector suppliers, can coexist in democratic and socially 
responsible ways, thereby laying the foundation for 
cultural pluralism. However, it must be ensured that 
all such entities of whatever kind respect the principle 
of free expression of opinion for all social groups. All 
available means must be used to combat the develop­
ment of monopoly-type structures in the record, cassette 
and film distribution business which hinder or even 
prevent free trade in these media articles'. 
1.7. In parallel to the Committee's own observations, 
the European Parliament's Resolution A3-0153/92 corr. 
on media concentration and diversity of opinions of 
16 September 1992 makes important proposals on the 
need for Community action. In particular, the Com­
mittee would endorse the calls for: 
the drafting of a charter for European non-profit-
making broadcasting organizations, i.e. public 
broadcasting organizations, broadcasting cooperat­
ives and public-access channels; 
the protection and safeguarding of Europe's cultural 
heritage and cultural output; 
the regulation of short reporting on events of general 
interest, with a corresponding right of news access; 
{'} OJ No CIS-!. 2. il. 1992, p. 44. 
!2- Oi N-> C .132. M. S !^S_. p. 29. 
,': Oi X,. v :"". i~". ~. !^st>. p. A. 
;-• O] No C :<°. 2o. <-. !^S°. p. 67. 
O OJ Noxcl. 12. 3. iS'90. p. 26. 
D OJ Nov !~5. 4. -. i^S. the formulation of a Media Code designed to main­
tain professional ethics (see Point 5); 
(7) OJ No C 332, 31. 12. 1990, r. 174. 
{*) OJ No C 127, 23. 5. 1990, P. 13. 
iO. 11. 93 Official Journal of the European Communities No C 304/19 
a Commission proposal for a European framework 
Directive safeguarding journalistic and editorial 
independence in all media; 
•a proposal for effective measures to combat or 
restrict concentration in the media; and . 
die establishment of an independent European 
Media Council. 
2, Gist of the Commission Green Paper 
2.1. In the light of the basic approach adopted in the 
EEC Treaty and, consequently, in the Green Paper, 
the Commission's concentration on the creation of a 
smoothly functioning internal market for radio and 
television is understandable. Nevertheless; in view of 
the fact that the audiovisual media and the information 
policy associated with their use constitute important 
bases for Europe's social and democratic development, 
the Committee thinks that the safeguarding of pluralism 
and of the freedom and variety of the opinions 
expressed in those media should receive at least the 
same degree of attention. Moreover, no account is taken 
of the role of the press in this context—either as a 
corrective or stimulant to concentration processes in the 
audiovisual sector. As long as media-policy decisions 
—at cither national or Community level—entail the risk 
of the creation of opinion-forming cartels, -European 
development could be threatened. The Committee 
would stress the importance of safeguarding basic rights 
in the Community as the Community organs, especially 
the Court of Justice, have repeatedly recognized. 
2.2. The Green Paper makes specific reference to 
European Parliament Resolutions and to the work of 
the Council of Europe. However, the Committee, too, 
has already adopted a stance on the problem of concen­
tration in the media, particularly in its Opinions on 
television without frontiers. The failure to take note 
of ESC comments on this subject is a fundamental 
shortcoming of the Green Paper; the final version of 
the Commission document should take account of the 
Committee's extensive preparatory work, proposals 
and ideas on this topic. 
2.3. The Commission's purpose in publishing the 
Green Paper is to present an initial assessment of the 
need for Community action on concentration in the 
media (television, radio, press) and of various 
approaches which the Commission might adopt once 
it has ascertained the views of the parties concerned. 
2.4. On the basis of its analysis of the different 
national regulations and measures governing pluralism 
and media concentration, the Commission has reached 
the following conclusions: 
2.4.1. Protection ol pluralism as such is primarily.a 
matter lor the Member Stares. In working towards its 
objectives and exercising its powers, rhe Community 
must, however, ensure that pluralism is not adversely affected, by its activities and the way it exercise its 
powers. In this respect, the Commission sees no need 
for special action at Community level to safeguard 
pluralism, since national arrangements for protecting 
pluralism can, in principle, also be applied to situations 
with a Community dimension. . 
-2.4.2. This capacity of the Member States to safe­
guard pluralism through a national regulatory frame­
work for mergers may, however, lead to discrepancies 
within the frontier-free area constituted by the Com­
munity. This is particularly true in the case of national 
provisions which are designed either to limit maximum 
holdings in media companies or to prevent control of, 
or holdings in, several media companies. 
2.4.3. Such national regulations may, at least poten­
tially, impact upon the functioning of the frontier-fret 
single market: 
— a Member.State could possibly restrict the freedom 
to broadcast of radio stations in the event of genuine 
circumvention of one of these laws, 
— the establishment of media companies in another 
Member State could be limited, 
— restrictions and distortions of competition could be 
introduced, 
— uncertainty as to the law, harmful to the competi­
tiveness of companies, could result from diverging 
~ views on what constitutes 'circumvention', 
—- such legal provisions limit access to the activities 
and to the ownership of the media, instead of facilit­
ating access so as to permit the establishment of 
a single market and give media companies that 
competitiveness which pluralism requires. 
2.4.4. Ownership restrictions causing such effects are 
not necessarily incompatible with Community law 
because they help to guarantee or safeguard pluralism. 
Consequently, they cannot be replaced just by applying 
general competition law and in particular, at Com­
munity level, the merger control regulation. 
2.4.5. The Commission proposes the three following 
options for possible Community action: 
I. Doing nothing 
II. Proposing a recommendation to enhance trans­
parency; 
IÎ1. Proposing the harmonization of narional restric­
tions on media ownership by 
.a) 2 Council Directive, or 
No C 304/20 Official Journal of the European Communities 10. 11. 93 
b) a Council Regulation, or ;- > ^-
c) a directive or a regulation together with an 
independent committee. '-'"'•''••• 
The Commission does: not currently have a particular 
preference for any one of these options and remains 
open to alternative suggestions. •~ to maintain pluralism. Such action should, accord-";^? 
, . ingly,..dcfine the limits to.media concentration .so^; 
as to protect "pluralism in the EC against media ; '; 
v. companies which dominate entire sectors of bpfn-S •; 
; ion-forming activity in certain regions. Whilst the • 
- economic health 'and competitiveness of businesses 
may be preconditions for. pluralism, they do not ~ 
automatically increase it and may even lead to a 
reduction if the market is controlled by a single 
company. 
3. General comments 
3.1. The Committee thinks that the Commission 
should take account.of the following points in the 
course of further discussion: 
a) The Green Paper's analysis of the situation in the 
Member States concludes that the existence of dis­
parate anti-trust provisions in respect of the media 
- impedes the operation of the. single market in this 
sector and that Community action is therefore 
necessary. The Committee recognizes that the 
obstacles to the operation of the single market cre­
ated by different national provisions (restriction/ 
distortion of competition, limitation of the freedom 
to provide services and the right of establishment, 
legal uncertainty) must be removed so as to enable 
enterprises to enjoy both the benefits of the single 
market and equal opportunities for development 
within the EC. But the Commission sees no need 
for Community legislation to safeguard pluralism 
and the freedom of opinion since, on the one hand, 
the EC Treaty makes the Member States responsible 
for ensuring pluralism and, on the other, the differ­
ent national rules on this subject ostensibly provide 
adequate guarantees. 
b) For the Committee, this conclusion represents an 
oversimplification. The Commission itself acknowl­
edges that, whilst EC competition law can help 
in maintaining pluralism, it is not the appropriate 
instrument for this task. Moreover, the mere 
removal of legal restrictions during the approval 
procedure for broadcasters could reduce pluralism. 
The safeguarding of pluralism and freedom of opin­
ion in programmes essentially depends on rules 
designed to prevent media concentration processes 
which could lead to monopoly-type mergers. The 
more certain large media extend their dominance 
over European countries, the fewer the oppor­
tunities for smaller suppliers to maintain alternative 
programme production. 
c) Even if the Community's power is limited to the 
establishment of the internal market, there can be 
no doubt that, in the case of the media, such market 
mechanisms have a major influence on the safe­
guarding of pluralism in the supply of programmes 
—and, consequently, the freedom and variety of 
opinions. The Committee therefore feels it would 
be wrong for rlie Community to avoid taking action d) Rules on national and trans-national media com­
panies which achieve monopoly-type dominance of 
broad sectors in certain countries are considered by 
the Committee to be necessary; the EC Directive 
cannot concentrate exclusively on the removal of 
barriers to market access -— Community legislation 
must also set precise limits to media-specific concen­
tration. The same applies to State-run television and 
radio organizations which dominate the market by 
virtue of the size. On the other hand, public broad­
casting companies, whose independence from 
government interference is guaranteed by the public 
bodies controlling them, can significantly help to 
safeguard the freedom of opinion and information 
and thus to ensure pluralism. 
e) It is necessary to introduce legislation governing 
access to satellite frequencies which allow unrestric­
ted broadcasting to Europe. 
f) A media committee made up of members of the 
European Parliament and the ESC and including 
independent experts and representatives of interest­
ed social groupings should be set up to advise the 
Commission. 
g) The Committee thinks that pluralism should also 
be safeguarded by legal provisions in other areas. 
Requirements must therefore be laid down in 
respect of minimum democratic standards in Euro­
pean television and radio stations and the press 
(safeguarding of 'internal' broadcasting and press 
freedom through cooperation, participation and the 
prohibition of censures). Thus, in its Milan Declar­
ation of 5 March 1993, the European Group of the 
International Federation of Journalists (IFJ) stated: 
'But apart from measures aimed at safeguarding 
pluralism in the media in general, there is a need 
for securing pluralism inside the publishing houses 
and broadcasting stations There is the need to 
secure editorial independence. The editorial staff 
detains (sic) the moral and intellectual capital of 
publishing houses and broadcasting stations'. The 
Milan Dcclararion also sets out minimum standards 
of editorial independence for all European media. 
10.11. 93 Official Journal of the European Communities No C 304/21 
3.2. . The Committee therefore urges the.Cbmrnission., 
to take steps to ensure that ownership conditions in the 
press and electronic media sector are made completely 
public by requiring transparency in financial .trans­
actions and full disclosure of worldwide company hold­
ings, cross-holdings and concealed third^party holdings. 
Such transparency must be compelled by specific Com­
munity legislative provisions as a precondition of legal 
protection for freedom of opinion and information. 
33. In view of the importance of the media for a 
democratic, pluralistic social order in the Community, 
it is not sufficient to monitpr concentration processes 
and take action to prevent any adverse consequences 
for freedom of information and cultural diversity. Con­
sideration should therefore be given to the creation of 
a European Media Council as a self-regulatory body 
for the sector, which could deal with such developments 
and suggestions for improving European media policy. 
3.4. The ESC would point to the pre-eminent import-
ncè attaching to Community regulations, while paying 
due regard to the subsidiarity principle. It is, however, 
essential that—in view of the technological possibilities 
(satellite broadcasting)—the Community's basic media 
rules should also be applied in non-member countries. 
The Commission should initiate negotiations on" such 
cooperation without delay. 
4. ESC answers to the Commission's questions 
4.Ï. Question 1 munity, thereby limiting* or reducing their scope for. 
.broadcasting. ;-w::---;yx,,-...••„?;•.y*.^r •.-..-.".W-.i-i-i^i'.-.'.• •.••' -V*•'•-•'h.<- • 
4.2. Question! 
Are the needs identified of sufficient importance, in the 
light of Community objectives, to require action in the 
media industry and, if so, when should such action be 
taken? -
'Action in the media sector' that is designed to eliminate 
'restrictive effects ... which might affect the implemen­
tation of die single market in the media industry' must 
also take account of the impact of unrestricted market 
dominance on pluralism and the variety of opinions 
and provide for specific Community rules covering the 
transparency of media companies and limiting media 
concentration. The Committee therefore proposes rapid 
Community action with the aim of: 
— defining standard EC-wide concentration rules for 
the print and electronic media, 
— setting minimum democratic standards to ensure 
'internal' broadcasting and press freedom in thé 
interests of safeguarding the variety of opinions and 
freedom of information. The right to report on 
cultural and sporting events (even of a commercial 
nature) must also be guaranteed—and must pre­
clude unjustified interference by commercial inter­
ests; 
— making public the advertising revenue of all broad­
casters. 
How great is the need for action, in particular with 
regard to: 
— restrictions on ownership; 
- restrictive effects; 
— specific restrictions in respect of multi-media and 
mono-media aspects ? 
There are sufficient well-known cases which establish 
the need for action. Legal provisions governing 
approval conditions have not always been adequately 
observed; thus, the simultaneous ownership of tele­
vision stations, TV and radio weeklies and newspapers 
—which is prohibited in the US, for example—has 
been exploited by media enterprises to attack or mar­
ginalize rival programme producers and gain competi­
tive advantages. The trade in exclusive rights to infor­
mation is expanding and could ultimately pose a threat 
to freedom oi information. There is also a need to 
prevent restrictions on pluralism arising from inter­
national agreements with third countries which occupy 
channels and frequencies rhat have alreadv been assig­
ned to local and regional TV stations in the Com-4.3. Question 3 
How effective, in the light of Community objectives, 
would action taken solely at Member State level be? 
Whilst national measures may be appropriate, Com­
munity action is essential to prevent further media 
concentration and safeguard pluralism. 
4.4. Question 4 
What are the views of interested parties on the content 
of a possible harmonization instrument as envisaged 
above, and in particular on the two variants for its 
scope, on the use of the real audience as a basis for 
setting thresholds, on the demarcation of distribution 
areas, on any other possible references, and on ways of 
defining the concept of controller? 
4-4.1. As regards the scope of the Green Paper 
(Chapter V. 1, C), the Committee agrees that restric­
tions deriving from pluralism rules cannot relate to 
programme content. Whilst provisions designed to 
ensure variety of opinions and freedom of information 
-6€-
No C 304/22 Official Journal of the European Communities 10.11. 93 
in broadcasting are mdispensable, their codification and 
monitoring must continue to be regulated.nationally. 
Yet, even if their partial effectiveness were established, 
there would be no guarantee of genuine pluralism since 
the lifting of national restrictions on media ownership 
in the internal market would favour further .expansion 
by international media corporations whose interests 
and programme policies are not guided by pluralist 
ideals. There is now sufficient evidence to show that, 
far from increasing pluralism, commercially-orientated 
broadcasting policy simply leads to more of the same, 
Le. merely the plural rather than pluralism. 
4.4JL The Committee therefore welcomes the Green 
Paper's consideration of the balance to be struck 
between ensuring diversity and facilitating market 
access when harmonizing national legislation in the 
internal market and would again stress the need for 
anti-concentration rules for media enterprises above a 
certain size. 
It would make the following specific proposals: 
— In view of the existence of international multi-media 
corporations, ownership restrictions must also be 
introduced in respect of the press. 
— Neither media nor non-media enterprises must be 
allowed to dominate the. market in several • media 
sectors (television, radio, press) in one or more 
national markets; similarly, no such enterprise that 
already controls a national media sector must be 
allowed to extend its market dominance. 
Media or non-media companies already dominating 
the market in one national media sector should not 
be allowed to acquire a majority holding in media 
companies elsewhere in the Community. 
Before a media company that is already active in 
one media sector is'allowed to operate in another 
media sector, all its holdings and cross-ownership 
arrangements must be disclosed in full. 
4.5. Question 5 4.6. Question 6 
*How desirable would it be, regardless of the 'pro-
.oeduraT.aspects of a possible harmonization instru­
ment, to set tip. a body with competence for media 
concentration? • ••"•• 
In accordance with the European Parliament's Resol­
ution of 16 September 1992, it seems advisable to set 
up a European Media Council or media arbitration 
centre composed of independent experts and represen­
tatives of relevant social and cultural interest groups. 
This would have the task of analyzing concentration 
processes and advising Parliament and the Commission 
on all EC media questions. 
4.7. Options 
I. No specific action: 
The Committee shares the views of the European 
"Parliament with regard to media concentration, 
and also finds the Green Paper's objections to this 
approach more convincing. Moreover, the policies 
pursued by supranational media concerns can no 
longer be adequately influenced by national legis­
lation. The Committee therefore cannot endorse 
Option I. 
II. Action relating to transparency: 
The Committee regards such an isolated Com­
mission proposal to the Member States, which 
would be independent of action to harmonize 
national restrictions on media holdings, as inad­
equate (see 4.5) and consequently rejects it. 
III. Action to harmonize laws: 
Bearing in mind, in particular, the comments on 
Question 4 concerning the consequences for plural­
ism, the ESC endorses, in principle, the introduction 
of legal provisions by means of a directive and 
thinks that approximation on the basis of a regu­
lation would be comparatively inflexible. Sub-
option C, on the other hand, would appear to be 
both reasonable and effective. 
What would be the advantage of action to promote 
transparency which would be separate from a harmoni­
zation instrument ? 
For the reasons already stated, the Committee sees little 
point in measures to ensure the transparency of all 
media companies in the absence of action to control 
media concentration and pluralism. 5. Foundations of a media code 
5.1. The problems of growing media concentration 
and the increasing commercialization and violence of 
many TV programmes, which are becoming apparent 
in the context of the Green Paper's topic and are not 
confined to Europe, require more fundamental dis­
cussion. All interested parties should therefore consider 
the establishment of a European media code which, in 
— <o -> 
10. 11. 93 Official Journal -of the European Communities No C 304/23 
addition to the control of media: company-power, •• 
should provide for the analysis of consumer require-., 
ments, bearing in mind, in particular, the maintenance 
and safeguarding of the freedom of information and : 
opinions, the protection of minors against violent and 
pornographic programmes and their restriction on 
grounds of human—particularly female—dignity and 
the prohibition of the glorification of war. 'The. Committee endorses the : provisionsiv 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 broad­
casting may learn to develop a critical awareness of 
both programmes and advertisements.' 
5.2. The Committee has already laid the foundations 
for such a European media code in earlier Opinions: 
The increase in the range of media now coming on 
to the market necessitates consumer-policy 
measures if the consumer is not unwittingly to 
become the plaything of those who exercise a direct 
influence on the media and on the information 
disseminated thereby. Consumer education can help 
the consumer make responsible use of media scr-
vicesi Consideration should be given to whether 
consumer organizations might not themselves be 
able to help directly in this task via their own 
consumer education programmes.' 
(ESC Opinion of 25 September 1985 on the Green 
Paper on the establishment of the common market 
for broadcasting, especially by satellite and cable.) 
'There is therefore a possible danger that an ever-
increasing proportion of so-called popular pro­
grammes (feature films, variety programmes, 
games) will be offered to the public once the com­
mon broadcasting market, as . advocated by the 
Green Paper, has been established. Because of the 
high audience ratings they command, such pro­
grammes are particularly profitable from a commer­
cial point of view. The result might well be stan­
dardization incompatible with the objectives of the 
Green Paper rather than a genuine diversification 
of programmes.' (ibidem 4.4.) 
'Hence the case for setting limits to the free play of 
competition in radio and television broadcasting 
through the imposition of European-wide quality 
standards. For the time being, however, existing 
national quality standards should be retained and 
supported.', (ibidem 4.5.2.) 
'In the field of'public order' the Community should 
introduce provisions to harmonize the necessary 
basic measures in the interests of: 
— protecting minors in particular against por­
nography and the glorification of violence and 
armed conflict, 
protecting individuals against misrepresentation 
(right of reply).' (ibidem 5.4.) (ESC Opinion of 1 July 1987 on the proposal for a 
Council Directive on the coordination of certain 
provisions laid down by law, regulation or adminis­
trative action in Member States concerning the pur­
suit of broadcasting activities -Article 15, 2.25.) 
5.3. In October 1989, the Council adopted the Direc­
tive on Television without Frontiers, which set out 
important guidelines. In it, the Council: 
— affirmed the importance of broadcasting for the 
development of culture and the free formation of 
opinions in conditions safeguarding pluralism and 
equality of opportunity, . 
— recognized the need to consolidate the common 
broad framework of regulation, notably as regards 
the responsibilities of the broadcaster not to present 
indecent, violent or racist material; to reserve for 
European works "a majority proportion of their 
transmission time; to abide by general standards on 
the duration, presentation, form and insertion of 
advertisements; to monitor the content and quality 
of advertising, with particular reference to infor­
mation, education and consumer protection. 
5.4. In its Additional Opinion on 20 December 1989 
. on a fresh boost for culture in the European Com­
munity, the ESC commented on the Convention as 
follows: 
'Culture is seen as a dynamic, evolutive enrichment 
of daily life. The European Community dimension 
has and can continue significantly to contribute to 
this, not in any perceived 'identikit' fashion, but 
through the harmony upon which diversity thrives, 
through increased contact, comparison and mixing, 
and the identification both of different cultural tra­
ditions and of common uniting principles, of mutual 
understanding and the elimination of prejudices 
between peoples. The European 'cultural model' is 
not all-exclusive, still less a 'melting pot' but rather 
a multi-various, multi-ethnical plurality of culture, 
the sum total of which enriches each individual 
culture. The European 'cultural model' serves not 
as a 'fortress' but as an open springboard towards 
other cultures both throughout the Community and 
thioughout the world.' (1.4.2.) 
•6n-
No C 304/24 Official Journal of the European Communities 10. 11. 93 
5.5. The following sections of this Opinion contain 
a detailed examination of the 'cultural aspects of media 
policy'! In a further Opinion of 20 September 1990 on 
an action programme to promote the development of 
the European audiovisual industry—'Media' 1991-
1995, the ESC noted: 
'In relation to people media policy has a variety of 
effects, responsibilities and democratic, social and 
cultural duties. We are talking not only of a con­
stantly expanding market with turnover measured 
in thousands of millions and hundreds of thousands 
of employees, but more importantly about the main­
tenance and promotion of Europe's historical ident­
ity.' (3.7.3.) 'Different kinds of programme makers with varying 
legal status, i.e. both public and private sector sup­
pliers, can coexist in democratic and socially respon­
sible ways, thereby laying the foundation for cul­
tural pluralism. However, it must be ensured that 
all such entities of whatever kind respect the prin­
ciple of free expression of opinion for all social 
groups.' (3.7.4.) 
6. Conclusion 
The Commission is asked to consider the foregoing 
points and proposals with a view to ensuring that 
human dignity in a free, democratic society is the focal 
point of future developments in the European media 
market. 
Done at Brussels, 22 September 1993. 
The Chairman 
of the Economic and Social Committee 
Susanne TIEMANN **\ 
-£*-
Annex 6 
Disparities between national rules on media ownership 
The Green Paper showed that there were considerable disparities between the specific 
national laws and regulations limiting ownership of the media for reasons relating to 
pluralism. Such disparities exist at various levels, particularly as regards the type of 
restriction (limits on cumulation of monomedia or multimedia ownership, limits on the 
maximum stake in a channel, restrictions as regards the type of person controlling the 
medium), the scope of the restrictions on media ownership (some national rules cover 
monomedia press concentration, others simply monomedia television, while others also 
cover multimedia ownership), the degree of constraint (the number of licences that can be 
held concurrently and the shareholding thresholds vary), and the means of applying the 
restrictions (e.g. some national rules distinguish between satellite and terrestrial television, 
general-interest and specialized or news-only television, and national and regional 
television). The examples below illustrate these disparities but must be interpreted with 
caution since there may have been recent changes to the legislation and the simplified 
presentation precludes any nuances or detailed explanation. 
Example No 1. Disparities between the four types of provision relating to media 
ownership (defined in the introduction) 
Monomedia press 
restrictions 
Monomedia TV or radio 
restrictions 
Multimedia restrictions 
Maximum shareholding in a 
TV station 
Disqualified persons B 
+ 
+ 
+ DK 
+ D 
+ 
+ 
+ 
+ G 
+ 
+ E 
+ 
+ 
+ F 
+ 
+ 
+ 
+ IRL 
+ I 
+ 
+ 
+ 
+ L 
+ 
+ NL 
+ 
+ P 
+ 
+ 
+ 
+ UK 
+ 
+ 
+ 
Example No 2. Disparities between the rules limiting an operator's shareholding in a 
television channel (irrespective of the number of channels already controlled by that 
operator) 
- In Italy and the United Kingdom there is no limit of this type. 
- In Germany and France, a person's maximum shareholding in a television channel must 
stay below 50%. 
- In Spain, Greece and Portugal, an operator's maximum shareholding in a television 
channel is limited to 25%. 
Example No 3. Disparities between the rules limiting the number of television channels 
which may be held by a single person 
- In the United Kingdom, there is no limit in the case of satellite channels. 
- In Italy, the maximum number is three channels. 
- In Germany, France (satellite channels) and the United Kingdom (Channel 3), 
maximum number is two channels. 
- In Spain and France (terrestrial channels), the maximum number is one channel. the 
-6Q 
Example No 4. Disparities between the rules limiting monomedia press concentration 
(acquisition of control of one press enterprise by another) 
- In France and Italy, the merger of two press enterprises is prohibited if their newspaper 
circulation exceeds a certain threshold (France: 30%; Italy: 20%). 
In the United Kingdom and Germany, there are no such specific thresholds. There are 
only thresholds which trigger an obligation to notify and an examination by the 
competition authorities. 
- In the other Member States, there is no specific limit. 
Example No 5. Disparities between the specific rules limiting multimedia concentration 
by preventing the control of a television channel by a press 
enterprise 
- Some rules prohibit a press enterprise from controlling a television channel if the 
newspaper circulation or market share exceeds a certain threshold. The threshold varies 
according to the Member State: Netherlands 25%, Italy 16%, France 20% (only applies 
if the newspaper proprietor already controls a radio station or cable network). 
- In the United Kingdom, irrespective of the circulation threshold, a newspaper proprietor 
may only hold 20% of the shares in Channel 3 or Channel 5. 
- In the United Kingdom, in the case of satellite channels, there is no limit, nor in France if 
the newspaper owner does not own a radio station or a cable network. 
Example No 6. Disparities between the rules relating to disqualified persons (the 
impossibility for certain categories of person, body or enterprise 
to control a television channel) 
- government, public enterprises and local authorities: B, D, I, NL, P, UK; 
- political bodies: B, D, P, UK; 
- religious bodies: UK; 
- advertising agencies: UK. 
- é£ -«eu -
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