COMMISSION OF THE EUROPEAN COMMUNITIES 
Brussels, 07.05.1996 
COM(%) 200 final 
95/0074 (COD) 
Amended proposal for a 
EUROPEAN PARLIAMENT AND COUNCIL DIRECTIVE 
amending Council Directive 89/552/EEC on the coordination of certain provisions 
laid down by law, regulation or administrative action in Member States 
concerning the pursuit of television broadcasting activities 
(presented by the Commission pursuant to Article 189 a (2) 
of the EC-Treaty) 

EXPLANATORY MEMORANDUM 
1. Introduction 
1.1 The 1989 Directive1 
The 1989 Directive was adopted in order to create the legal reference framework needed 
at Community level to ensure the free movement of television broadcasts. This is 
achieved through the coordination of national rules in the fields where the disparities 
between them were - or are potentially - such as to create legal barriers to free 
circulation. The fields concerned are respectively jurisdiction, the promotion of 
distribution and production of television programmes, advertising and sponsorship, the 
protection of minors and the right of reply. Member States may not restrict the reception 
or the retransmission of broadcasts from other Member States for reasons which fall 
within the coordinated fields. A Member State may only lay down more detailed or 
stricter rules in these fields as regards broadcasters under its own jurisdiction. The main 
objective of the Directive is to achieve free circulation. Because it uses the method of 
the coordination of national rules where necessary to achieve this primary objective, the 
Directive also espouses the objectives of those national rules. It is the cornerstone of the 
"European audiovisual space" and has been, or is in the process of being supplemented 
by complementary legal measures (in particular the cable and satellite copyright 
Directive2). 
1.2 The History of the Proposal for a Directive amending the 1989 Directive 
Article 26 of the 1989 Directive requires the Commission to present a report on its 
application five years after adoption, accompanied if appropriate by proposals to adapt 
it to developments in the field of television broadcasting. The Commission's services 
carried out an extensive consultation process in 1994. The Commission presented to 
Parliament and Council a Communication including the application report, the 
introductory statement and the proposal for a Directive amending the 1989 Directive on 
Council Directive 89/552/EEC of 3 October 1989 "on the coordination of certain provisions laid 
down by law, regulation or administrative action in Member States concerning the pursuit of 
television broadcasting activities" (OJ L298 p. 23 17.10.1989) 
Council Directive 93/83/EEC (OJ L248, p. 15, 06.10.1996). 
See also the recent "Green Paper on the legal protection of encrypted signals" COM(96)76 
•X 
31 May 19953. The purpose of the proposal is to adapt and clarify certain provisions of 
the 1989 text in the light of the experience gained in its implementation and of 
developments in the sector. The current Directive remains in force until amended (the 
next report on application is due in October 1996). 
The Economic and Social Committee adopted its opinion on 13 September 1995 (CES 
972/95). 
On 14 February 1996 Parliament adopted a legislative resolution4 in the first reading 
under the co-decision procedure (Art. 189 (b) EC Treaty) approving the Commission's 
proposal subject to the amendments it had made. In parallel, the Council of Ministers 
was examining the proposal and held a full debate at ministerial level at its meeting on 
20 November 1995 pending the adoption of Parliament's opinion in accordance with the 
co-decision procedure. 
2. The amended proposal 
2.1 Parliament's amendments 
The amended proposal set out here incorporates the amendments accepted by the 
Commission. A large number of amendments (25) were accepted in part or in spirit and 
5 as such i.e. roughly half the amendments actually adopted by Parliament. This 
memorandum will explain how these have been incorporated into the text and will 
provide further specific comments on the Commission's reasoning where appropriate. In 
general terms, the Commission has done its utmost to take the greatest possible account 
of Parliament's wishes as expressed in the first reading. Where it has not been able to 
incorporate an amendment, either partially or not at all, this is for one or several of the 
following categories of reason: 
the amendment, either on its own or in combination with other 
amendments, would seriously upset the balance of the Commission's 
proposal; 
the amendment includes measures that would be impossible to implement 
in practical terms, in the Commission's view; 
the amendment presents, in the Commission's view, serious legal 
difficulties. 
2.2 Explanation of the amendments incorporated 
The right-hand column of the attached document constitutes the Commission's amended 
proposal. The amendments are underlined. The left-hand column represents the 
Commissions initial proposal and is provided for ease of reference. 
3 OJC185, p. 4, 19.07.1995 
4 EP 196.583 
d cx 
Recital 5(a) incorporates in part Parliament's amendment no. 35. This is because the 
Commission considers that while it is acceptable to state that future Community legal 
measures must be compatible with existing measures in the same field, to go beyond such 
a statement would prejudge the outcome of future legislative processes. 
Recital 9 incorporates a change made necessary by Parliament's amendment no. 22 which 
has been partially incorporated into Article 2(3). 
Recital 11 incorporates a change made necessary by Parliament's amendment no. 28 the 
spirit of which has been incorporated into Article 3(2). 
Recital 15a corresponds to Parliament's amendment no. 88. 
Recital 17a corresponds to Parliament's amendment no. 10 (and, in part, no. 4). 
Recitals 21 (a) to (c) correspond to Parliament's amendment no. 35. The Commission 
considers that while it is useful, for the purposes of the implementation of Article 5, to 
have a guideline definition of what is meant by the term "independent producer", it 
would be too prescriptive, given the very diverse nature of the independent production 
sector in the Member States, to include such a definition in an Article. It is therefore 
proposed to include the definition in a recital. Moreover, the actual definition must be 
flexible enough to take account of this diversity. For example, in some smaller Member 
States there are very few broadcasters (in some cases, such as Austria and Ireland, there 
is currently only one). It is not possible therefore to stipulate in absolute terms that a 
producer is only independent if he or she does not supply to the same broadcaster more 
than 90% of the works he or she produces. A further useful criterion 6f independence 
to be taken into account is the degree to which the producer retains the right to exploit 
the work on secondary markets (eg. after first broadcast or after a certain time) as 
suggested by the amendment. 
Recital 22a refers to Article 1 new paragraph (d) (definition of television advertising) and 
Article 18(1) which have been modified to take account of Parliament's Amendment no. 
20 (in as far as the matter is not already covered by the current definition). 
Recital 23 is modified to incorporate partially Parliament's amendment no. 12. 
Recital 24 takes account, in part, of Parliament's amendment no. 52. It also incorporates 
changes made necessary by the amendment of Article 22 (2) which itself now takes 
account of Parliament's amendment no. 76. 
This is the first of Parliament's amendments to be incorporated into the text of the amended 
proposal following the order of the recitals. However, it should be noted that Amendment no. 1 
is identical to recital no. 16 of the 1989 Directive. This recital remains valid as it is not affected 
by the Directive amending the 1989 Directive and therefore there is no need (and it is not possible) 
to incorporate Amendment no. 1 into the Commission's amended proposal (as it is already in the 
1989 text). 
*. ft-
Recital 24a is included to take account of Parliament's amendments no. 14, 15, 62 and 
55 (the latter being the so-called "V-chip" amendment); it corresponds to new Article 22b 
included to take account of the same series of amendments. 
Recital 25 is modified to incorporate Parliament's amendment no. 26 which itself relates 
to Article 3(1). 
It should be pointed out that Article 3(1), which states that Member States remain free 
to require television broadcasters under their jurisdiction to comply with more detailed 
or stricter rules than those laid down by the Directive, does not as such create any legal 
obligation for the Member States. It therefore makes no difference, in legal terms, 
whether the list of areas in which Member States may take such measures and, which is 
indicative in nature, is included in an Article or in a recital. The Commission has a 
preference for the latter for reasons of presentation and clarity. 
Article 1 new paragraph (b). The Commission accepted this part of Parliament's 
amendment no. 18 because it considers that it is an improvement, in terms of legal 
security, to include this definition of what is meant by the term "television programme" 
in Article 1(a) (the weakness of which is due to the fact that television broadcasting is 
defined by reference to television programmes giving rise to a somewhat circular 
definition). However, this addition does not change the scope of the definition of 
television broadcasting, which is circumscribed by the terms "to the public" and "it does 
not include communication services — on individual demand". The Commission 
explained in the Explanatory Memorandum to the initial proposal why it considers that 
it would be inappropriate to extend the scope of this Directive beyond that of the 1989 
text (i.e. the point-to-multipoint transmission of television programmes intended for 
reception by the public). 
Article 1 new paragraph (c) corresponds to Parliament's amendment no. 19. The 
Commission considers that it is useful to include a definition of the organisations which 
have to comply with the national provisions transposing those of the Directive. The 
definition proposed matches the one proposed by Parliament with the one used in the 
Council of Europe's Transfrontier Television Convention. It is based on three essential 
elements: 
it concerns natural or legal persons (as in the Convention) 
who have editorial responsibility for the composition of schedules of 
television programmes (this corresponds to the 2nd and 3rd parts of 
Parliament's definition and to the 2nd part of the Council of Europe's 
definition) 
who transmits, or has transmitted, these programmes (the 3rd part of the 
Council of Europe's definition). 
a c 
Article 1(d). This is paragraph (b) of the 1989 text modified to take account of 
amendment no. 20. It should be seen in conjunction with recital no. 22a. The purpose 
is to make it clear that the basic consumer protection rules in Articles 10 to 16 apply to 
self-promotional forms of advertising (see also amended Article 18). 
Article 1 (g) is paragraph (e) of the Commission's proposal modified to take account of 
amendment no. 21 and to align the reference to goods and services with the one in new 
paragraph (d). 
Article 2 paragraphs 2.3 and 4 have been modified to take account of amendments no. 
22, 23 and 24 (jurisdiction criteria). The Commission agrees that it is important to 
provide for detailed criteria making it possible to determine, with a sufficient degree of 
clarity and by reference to the specific nature of the activities involved, the place of 
establishment of the broadcaster for the purpose of determining which Member States has 
jurisdiction. However, this implies an exhaustive hierarchical arrangement of the three 
specific criteria that have been chosen (head office, place where editorial decisions are 
taken, and place where a significant part of the workforce is located) in order to take 
account of all the possible combinations of the criteria. Failure to establish a hierarchical 
order would give rise to positive conflicts (several States claiming jurisdiction) or 
negative conflicts (legal vacuum). Moreover, the Commission cannot accept paragraph 
(c) of amendment 23 for the following reasons: 
by introducing the criterion of the State for which the programmes are intended it 
reverses the "home country control principle" of the Directive and would make it 
unworkable; 
it is contrary to the logic of the Treaty; 
it is self-defeating, as the result would be that jurisdiction could not be determined 
on the basis of the three chosen criteria and therefore would have to be determined 
on the basis of the purely technical criteria contained in paragraph 4 (frequency, 
satellite capacity or up-link). 
Article 2a has been modified to take account partially of amendment 24. However, the 
Commission cannot accept the part of the amendment that extends to advertising a 
procedure designed to deal with grave violations of the rules on protection of minors in 
programmes. It would be wholly inappropriate to confuse these two very different 
issues. Moreover, it would reverse in one field the "home country control" principle and 
thereby make the Directive unworkable. 
Article 3 paragraph 2 has been modified to take account of amendments no. 27 (effective 
compliance) and 28 (third party redress ). 
(Amendment no. 35 has been incorporated into recital no.21a - see above). 
Article 6 paragraph 1 incorporates a new sub-paragraph (d) which the Commission 
considers necessary in view of certain recent developments in the broadcasting legislation 
of some of the European third countries referred to in sub-paragraphs (b) and (c). This 
d a 
addition also corresponds in part to what the Commission construes as being the spirit 
of Parliament's amendment no. 36. 
Article 7 is modified to incorporate partially amendment no. 37. The wording of the first 
sentence emphasizes that windows are first and foremost a matter for the contracting 
parties. The duration of the windows is adjusted according to the amendment. 
However, the Commission considers that the provision in sub-paragraph (b) referring to 
works co-produced by the broadcaster renders the last paragraph in the amendment 
superfluous. Moreover, it is not possible, in the internal market, to take any other date 
than that of first release in the Community as the starting date for the various windows. 
Article 9 incorporates a change that corresponds in part to amendment no. 38. 
Articles 10 and 11 now incorporate references to teleshopping as in amendments no. 39, 
40 and 42. 
Article 11(3) incorporates the part of amendment no. 41 referring to films produced for 
television. The Commission cannot accept the part of the amendment stating that the 
basis for the calculation of the number of breaks allowed should be scheduled duration 
"exclusive of all interruptions". This would impose an unnecessary restriction that would 
impact very negatively on broadcasters' revenue streams. 
Articles 12 (c) incorporates amendment no. 43. 
Article 14 has been modified to incorporate the essence of the 2nd part of Parliament's 
amendment no. 44 with wording that is compatible with existing Community regulations. 
The first part of the amendment is not acceptable as it reverses the home country control 
principle of the directive and is incompatible with Court of Justice case law (notably the 
"Bond van Adverteeders" judgement, CJCE 352/86 of 24.04.1988). However, a wide 
prohibition on teleshopping for medical products, by reference to existing Community 
regulations, can be justified on the one hand by public health concerns, and on the other, 
by the fact that teleshopping differs from advertising and sponsorship in that it entails a 
much more direct relationship with the final consumer. 
Article 17 includes a new paragraph 2a that incorporates changes that reflect the 
development of the debate on sponsorship of programmes by pharmaceutical companies 
since the Commission's initial proposal. 
Article 18 incorporates changes deriving in part from amendments 45 and 46. However, 
the Commission is of the opinion that it is neither desirable nor possible to exclude forms 
of advertising other than spot advertising. It also incorporates a change relating to 
announcements made by broadcasters in connection with their own programmes that is 
made necessary by the amended definition of "television advertising" in Article 1 in order 
to avoid such announcements having to be counted within the daily advertising limit. 
Article 18a reflects amendment no. 74 on teleshopping within channels other than 
teleshopping channels. 
4--Û-
Article 19 corresponds to Article 18b in the Commission's initial proposal concerning 
teleshopping channels and other channels devoted exclusively to commercial promotion. 
The Commission does not consider it appropriate to place quantitative restrictions of the 
type that apply, by virtue of Article 18, to conventional channels on channels exclusively 
devoted to forms of commercial promotion or direct selling. The latter have a different 
purpose and do not compete on the same market segments as the former. 
Article 20 incorporates a change that brings it into line with the terminology used in 
Article 9 and incorporates in part amendment no. 51. 
Article 22 (2) corresponds to amendment no. 76 in particular and to concerns about the 
protection of minors in general as expressed in amendments nos. 14, 15, 62, 52 and 55 
(see also recital no. 24). However, the Commission considers that it could be 
unnecessarily prescriptive to require a programme that is already encoded to incorporate 
warning signals. Moreover, one or other of the forms of warning (acoustic or visual) is 
sufficient to achieve the purpose of alerting the viewers. 
Article 22 (b) includes a new second paragraph that corresponds in particular to 
amendments nos. 62 and 55 (see also recital no. 24a). The Commission considers that 
the "V-chip" is an interesting development that could provide an effective way of 
ensuring greater parental control. However, this idea requires further investigation before 
it can be incorporated into binding legal measures at Community level. In particular, the 
matter of the rating system poses specific problems in the context of transfrontier 
television in Europe. Furthermore, the inter play between the "V-chip" and existing 
family viewing policies, including watersheds at specific times, requires in-depth analysis 
in order to be sure that the new development will complement rather than undermine 
existing measures. Finally by taking the time needed to analyze all these questions, 
Europe will also be able to benefit from the experience that will be gained by the United 
States and Canada in implementing V-chip legislation. 
Article 26 corresponds partially to amendment no. 58. The Commission agrees that 
developments in the field of television broadcasting need to be taken into account in the 
implementation of the Directive, including any future revision, but considers that to limit 
the scope of the analyses that will be required to services operating solely on individual 
demand would be to adopt too narrow an approach. This is why the Commission prefers 
the wider notion of technological developments in general. 
S 
Amended proposal for a 
European Parliament and Council Directive 
amending Council Directive 89/552/EEC on the coordination of certain provisions 
laid down by law, regulation or administrative action in Member States 
concerning the pursuit of television broadcasting activities 
9 
INITIAL PROPOSAL AMENDED PROPOSAL 
THE EUROPEAN PARLIAMENT AND 
THE COUNCIL OF THE EUROPEAN 
UNION, 
Having regard to the Treaty establishing the 
European Community, and in particular 
Articles 57(2) and 66 thereof, 
Having regard to the proposal from the 
Commission1, 
Having regard to the opinion of the 
Economic and Social Committee2, 
Acting in accordance with the procedure 
referred to in Article 189b of the Treaty3, 
1. Whereas Council Directive 89/552/EEC4 
constitutes the legal framework for 
broadcasting in the internal market; 
2. Whereas Article 26 of Directive 
89/552/EEC states that the Commission 
shall, no later than the end of the fifth year 
after the date of adoption of the Directive, 
submit to the European Parliament and the 
Economic and Social Committee a report 
on the application of the Directive and, if 
necessary, make further proposals to adapt 
it to developments in the field of television 
broadcasting; THE EUROPEAN PARLIAMENT AND 
THE COUNCIL OF THE EUROPEAN 
UNION, 
Having regard to the Treaty establishing the 
European Community, and in particular 
Articles 57(2) and 66 thereof, 
Having regard to the proposal from the 
Commission, 
Having regard to the opinion 
Economic and Social Committee, of the 
Acting in accordance with the procedure 
referred to in Article 189b of the Treaty, 
Whereas Council Directive 89/552/EEC 
constitutes the legal framework for 
broadcasting in the internal market; 
Whereas Article 26 of Directive 
89/552/EEC states that the Commission 
shall, no later than the end of the fifth year 
after the date of adoption of the Directive, 
submit to the European Parliament and the 
Economic and Social Committee a report 
on the application of the Directive and, if 
necessary, make further proposals to adapt 
it to developments in the field of television 
broadcasting; 
OJN' 
OJN* 
OJN" 
OJNTL298, 17.10.1989, p. 23 
3. Whereas the application of Directive 
89/552/EEC and the report on its 
application have revealed the need to clarify 
certain definitions or obligations on 
Member States under this Directive; 
4. Whereas the Commission in its 
Communication of 19 July 1994 entitled 
"Europe's way to the information society. 
An action" underlined the importance of a 
regulatory framework applying to the 
content of audiovisual services which 
would help to safeguard the free movement 
of such services in the Community and be 
responsive to the opportunities for growth 
in this sector opened up by new 
technologies,.while at the same time taking 
into account the specific nature, in 
particular the cultural and sociological 
impact, of audiovisual programmes, 
whatever their mode of transmission; 
5. Whereas the Council welcomed this 
action plan at its 1787th meeting on 28 
September 1994 and stressed the need to. 
improve the competitiveness of the 
European audiovisual industry; 
5a. Whereas the application of Directive 
89/552/EEC and the report on its 
application have revealed the need to clarify 
certain definitions or obligations on 
Member States under this Directive; 
Whereas the Commission in its 
Communication of 19 July 1994 entitled 
"Europe's way to the information society. 
An action" underlined the importance of a 
regulatory framework applying to the 
content of audiovisual services which 
would help to safeguard the free movement 
of such services in the Community and be 
responsive to the opportunities for growth 
in this sector opened up by new 
technologies, while at the same time taking 
into account the specific nature, in 
particular the cultural and sociological 
impact, of audiovisual programmes, 
whatever their mode of transmission; 
Whereas the Council welcomed this action 
plan at its 1787th meeting on 28 September 
1994 and stressed the need to improve the 
competitiveness of the European 
audiovisual industry; 
Whereas the addition of a definition of a 
"television programme" shall bv no means 
be interpreted as extending the scope of 
application of this Directive, to new 
services such as video-on-demand and on­
line or internet type services and whereas 
any legislative framework concerning new 
audiovisual services must be compatible 
with the primary objective of this Directive 
which is to create the legal framework for 
the free circulation of services: 
6. Whereas the Heads of State and 
Government meeting at the European 
Council in Essen on 9 and 10 December 
1994 called on the Commission to present a 
proposal for a revision of Directive 
89/552/EEC before their next meeting; Whereas the Heads of State and 
Government meeting at the European 
Council in Essen on 9 and 10 December 
1994 called on the Commission to present a 
proposal for a revision of Directive 
89/552/EEC before their next meeting; 
7. Whereas the application of Directive 
89/552/EEC has revealed the need to clarify 
the concept of jurisdiction as applied 
specifically to the audiovisual sector; 
whereas, in view of the case law of the 
Court of Justice of the European 
Communities, the establishment criterion 
should be made the principal criterion 
determining the jurisdiction of a particular 
Member State; 
8. Whereas the concept of establishment 
according to the criteria laid down by the 
ODUrt of Justice in its judgment of 25 July 
1991 in Factortame5. involves the actual 
pursuit of an economic activity through a 
fixed establishment for a indefinite period; 
9. Whereas the establishment of a television 
broadcasting organization, for the purpose 
of Directive 89/552/EEC, as amended by 
this Directive, may be determined by a 
series of practical criteria such as the 
location of the head office of the provider 
of services, the place where decisions on 
programming policy are usually taken, the 
place where the programme to be broadcast 
to the public is finally mixed and processed, 
provided that a significant proportion of the 
workforce required for the pursuit of the 
television broadcasting activity is located in 
the same Member State; Whereas the application of Directive 
89/552/EEC has revealed the need to clarify 
the concept of jurisdiction as applied 
specifically to the audiovisual sector; 
whereas, in view of the case law of the' 
Court of Justice of the European 
Communities, the establishment criterion 
should be made the principal criterion 
determining the jurisdiction of a particular 
Member State; 
Whereas the concept of establishment 
according to the criteria laid down by the 
Court of Justice in its judgment of 25 July 
1991 in Factortame. involves the actual 
pursuit of an economic activity through a 
fixed establishment for a indefinite period; 
Whereas the establishment of a television 
broadcasting organization, for the purpose 
of Directive 89/552/EEC, as amended by 
this Directive, may be determined by a 
series of practical criteria such as the 
location of the head office of the provider 
of services; the place where decisions on 
programming policy are usually taken, the 
place where the programme to be broadcast 
to the public is finally mixed and processed, 
and the place where a significant proportion 
of the workforce required for the pursuit of 
the television broadcasting activity is 
located: 
Case C-221/89, Queen v Secretary of State for Transport, ex parte Factortame. [1991] ECR 1-3905, para. 20. 
4 
9a. Whereas the fixing of a series of material 
criteria is designed to determine bv an 
exhaustive procedure that one Member 
State and one only is competent for a 
broadcaster in connection with the pursuit 
of the provision of the services which the 
directive addresses: nevertheless, taking into 
account the case law of the Court of Justice 
and so as to avoid cases where there is a 
vacuum of competence, if the question as to 
which Member State has jurisdiction cannot 
be determined according to these material 
criteria, the competent Member State is that 
in which the broadcaster is established 
within the meaning of Article 52 and the 
following of the EC Treaty: 
10. Whereas the Court of Justice has 
constantly held6 that a Member State retains 
the right to take measures against a 
television broadcasting organization that is 
established in another Member State but 
directs all or most of its activity to the 
territory of the first Member State if the 
choice of establishment was made with a 
view to evading the legislation that would 
have applied to the organization had it been 
established in the territory of the first 
Member State; 
11. Whereas any interested party in the 
Community must be able to assert its rights 
in the competent courts of the Member 
State with jurisdiction over the television 
broadcasting organization that is failing to 
comply with the national provisions arising 
out of the application of this Directive; Whereas the Court of Justice has constantly 
held that a Member State retains the right 
to take measures against a television 
broadcasting organization that is established 
in another Member State but directs all or 
most of its activity to the territory of the 
first Member State if the choice of 
establishment was made with a view to 
evading the legislation that would have 
applied to tHe organization had it been 
established in the territory of the first 
Member State; 
Whereas directly affected third parties, 
including nationals of other Member States, 
must be able to assert their rights in the 
competent courts or administrative bodies 
of the Member State with jurisdiction over 
a television broadcasting organization that 
may be failing to comply with the national 
provisions arising out of the application of 
this Directive; 
12. Whereas Member States are free to take 
whatever measures they deem appropriate 
with regard to broadcasts coming from third 
countries, and which do not satisfy the 
conditions laid down in Article 2 of 
Directive 89/552/EEC, provided they 
comply with Community law and the 
international obligations of the Community; 
13. Whereas in order to eliminate the 
obstacles arising from differences in 
national legislation on the promotion of 
European works, Directive 89/552/EEC 
contains provisions aimed at harmonizing 
these regulations; whereas those provisions 
which, in general, permit the liberalization 
of trade must contain provisions 
harmonizing the conditions of competition; Whereas Member States are free to take 
whatever measures they deem appropriate 
with regard to broadcasts coming from third 
countries, and which do not satisfy the 
conditions laid down in Article 2 of 
Directive 89/552/EEC, provided they 
comply with Community law and the 
international obligations of the Community; 
Whereas in order to eliminate the obstacles 
arising from differences in national 
legislation on the promotion of European 
works, Directive 89/552/EEC contains 
provisions aimed at harmonizing these 
regulations; whereas those provisions 
which, in general, permit the liberalization 
of trade must contain provisions 
harmonizing the conditions of competition; 
See, in particular, the judgments in Case 33/74, Van Binsbergen v Bestuur van de BedrijfsvereniRing. [1974] ECR 1299 and in 
Case C-23/93. TV 10 SA v Commissariaat voor the Media f 19941 ECR 1-4795 
14. Whereas, moreover, Article 128(4) of 
the Treaty requires the Community to take 
cultural aspects into account in its action 
under other provisions of the Treaty; 
15. Whereas the Green Paper on "Strategy 
options to strengthen the European 
programme industry in the context of the 
audiovisual policy of the European Union", 
adopted by the Commission on 7 April 
1994, emphasizes in particular the need to 
step up measures to promote European 
works in order to further the development 
of the sector; 
15(a) 
16. Whereas, in addition to the 
considerations cited above, it is necessary to 
create conditions for improving the 
competitiveness of the programme industry; 
whereas the Communication on the 
application of Articles 4 and 5 of Directive 
89/552/EEC , adopted by the Commission 
on 3 March 1994 pursuant to Article 4(3), 
shows that the measures to promote 
European works can contribute to such an 
improvement, but that they need to be 
modified to take account of developments 
in the field of television broadcasting. 
17. Whereas, if Article 4 of Directive 
89/552/EEC, as amended by this Directive, 
is effectively implemented over a ten-year 
period, it should be possible, given the 
impact of the financial instruments available 
to the Community and the Member States, 
to achieve the objective of strengthening the 
European programme industry; Whereas, moreover, Article 128(4) of the 
Treaty requires the Community to take 
cultural aspects into account in its action 
under other provisions of the Treaty; 
Whereas the Green Paper on "Strategy 
options to strengthen the European 
programme industry in the context of the 
audiovisual policy of the European Union", 
adopted by the Commission on 7 April 
1994, emphasizes in particular the need to 
step up measures to promote European 
works in order to further the development 
of the sector; 
Whereas broadcasting organizations, 
programme makers, producers, authors and 
other experts should develop more detailed 
concepts and strategies aimed at developing 
European audiovisual fiction films that are 
addressed to a large audience: 
Whereas, in addition to the considerations 
cited above, it is necessary to create 
conditions for improving the 
competitiveness of the programme industry; 
whereas the Communication on the 
application of Articles 4 and 5 of Directive 
89/552/EEC , adopted by the Commission 
on 3 March 1994 pursuant to Article 4(3), 
shows that the measures to promote 
European works can contribute to such an 
improvement, but that they need to be 
modified to take account of developments 
in the field of television broadcasting; 
Whereas, if Article 4 of Directive 
89/552/EEC, as amended by this Directive, 
is effectively implemented over a ten-year 
period, it should be possible, given the 
impact of the financial instruments available 
to the Community and the Member States, 
to achieve the objective of strengthening the 
European programme industry; 
17(a) 
18. Whereas it is necessary to ensure the 
effective application of such measures 
throughout the Community in order to 
preserve free and fair competition between 
firms in the same industry; whereas the 
application of such measures could help to 
reinforce mutual trust between Member 
States; 
19. Whereas, at the end of the ten-year 
period, any national measures in this field 
must not interfere with the principle of free 
circulation of services by restricting the 
reception or retransmission of television 
broadcasts from other Member States; 
20. Whereas the proportions of European 
works must be achieved taking economic 
realities into account; whereas, therefore, it 
is necessary to introduce a progressive 
system for achieving this objective; 
21. Whereas account should be taken of the 
specific nature of transmissions broadcast 
only in a language other than those of the 
Member States; Whereas the Media II programme, which 
seeks to promote training and distribution in 
the audiovisual sector, is also designed to 
enable the production of European works to 
be developed: 
Whereas it is necessary to ensure the 
effective application of such measures 
throughout the Community in order to 
preserve free and fair competition between 
firms in the same industry; whereas the 
application of such measures could help to 
reinforce mutual trust between Member 
States; 
Whereas, at the end of the ten-year period, 
any national measures in this field must not 
interfere with the principle of free 
circulation of services by restricting the 
reception or retransmission of television 
broadcasts from other Member States; 
Whereas the proportions of European works 
must be achieved taking economic realities 
into account; whereas, therefore, it is 
necessary to introduce a progressive system 
for achieving this objective; 
Whereas account should be taken of the 
specific nature of transmissions broadcast 
only in a language other than those of the 
Member States; 
21(a) 
21(b) 
21(c) 
22. Whereas the question of specific time 
scales for each type of television showing 
of cinematographic works is primarily a 
matter to be settled by individual contracts; 
whereas, however, in the absence of 
agreements between the interested parties or 
professionals concerned, a schedule tailored 
to the needs at each stage in the showing of 
such works, should be drawn up; Whereas, for the purposes of the 
implementation of the measures designed to 
promote works created bv producers who 
are independent of broadcasters, guideline 
criteria are needed whereby a producer may 
be deemed to be independent if : 
= the broadcaster holds no more than 25% 
of the share capital of the production 
company (50% if more than one 
television broadcaster is involved): 
= over a three-vear period the producer 
supplies to the same broadcaster no 
more than 90% of the works produced, 
unless, over the same period, the 
producer makes only one programme or 
only one series: 
= the producer does not hold a significant 
number of shares in a broadcaster: 
Whereas, in applying the above criteria, due 
account shall be taken of specific 
characteristics of Member States' 
audiovisual systems, in particular those of 
Member States with a lesser audiovisual 
capacity or a limited language area: 
Whereas Member States may also take into 
account the destination and ownership of 
secondary rights when assessing the criteria 
of independence: 
Whereas the question of specific time scales 
for each type of television showing of 
cinematographic works is primarily a matter 
to be settled by individual contracts; 
whereas, however, in the absence of 
agreements between the interested parties or 
professionals concerned, a schedule tailored 
to the needs at each stage in the showing of 
such works, should be drawn up; 
22(a) 
23. Whereas, it is important to facilitate the 
development of teleshopping, an activity 
with an economic importance for operators 
as a whole and a genuine outlet for goods 
and services within the Community, by 
modifying the rules on transmission time; 
whereas, to ensure the full protection of 
consumer interests, teleshopping should be 
governed by a number of minimum 
standards regulating the form and content of 
broadcasts; Whereas transmission time allotted to 
announcements relating to programme 
schedules and derived products or to public 
service announcements and charity appeals 
broadcast free of charge is not to be 
included in the maximum amounts of daily 
or hourly transmission time that may be 
allotted to advertising and teleshopping: 
Whereas, in view of the development of 
teleshopping, an activity with an economic 
importance for operators as a whole and a 
genuine outlet for goods and services within 
the Community, it is essential to modify the 
rules on transmission time and to ensure a 
high level of consumer protection bv 
putting in place appropriate standards 
regulating the form and content of 
broadcasts; 
24. Whereas it is necessary to clarify the 
rules for the protection of the physical, 
mental and moral development of minors; 
whereas the establishment of a clear 
distinction between programmes that are 
subject to an absolute ban and those that 
may be authorized subject to appropriate 
technical means should satisfy concern 
about the public interest expressed by 
Member States and the Community; Whereas it is necessary to clarify the rules 
for the protection of the physical, mental 
and moral development of minors, in 
particular with regard to programmes which 
might disturb them psychologically: 
whereas the establishment of a clear 
distinction between programmes that are 
subject to an absolute ban and those that 
may be authorized subject to appropriate 
protective measures of a technical nature or 
regarding the time of the broadcast should 
satisfy legitimate concerns; whereas 
moreover the latter programmes when 
broadcast in unencoded form should be 
identified through optical or acoustic means 
regardless of the time of the broadcast: 
10 
24(a) Whereas, since it appears possible to 
harmonize national rules on the protection 
of minors only to a limited extent owing to 
differences in sensibility and moral 
standards, the potentialities of technical 
filtering devices and appropriate rating 
systems at national and Community level, 
should be studied with a view to enabling 
parents and guardians to filter out 
programmes which might have a 
detrimental effect on the mental and 
physical development of minors: whereas 
such rating systems should involve as much 
as possible bodies consisting of experts 
(educationalists and media specialists') set 
up in association with the broadcasting and 
producing organisations themselves with 
appropriate support from the competent 
national and European authorities: 
24b. Whereas the Commission, in liaison with 
Member State authorities, should conduct 
an in-depth analysis of these issues and 
possible measures involving : 
- the requirement for new television sets 
to be equipped with a technical device 
enabling parents or guardians to filter 
out certain programmes: 
i the setting up of appropriate rating 
systems: 
z encouraging family viewing policies: 
i other educational and awareness 
measures 
with a view to presenting, if necessary 
before the deadline laid down in Article 26, 
the appropriate proposals for legislative or 
other measures. 
11 
25. Whereas the Court of Justice has 
constantly held7 that the concept of 
services, as referred to in Articles 59 and 
60 of the EEC Treaty, embraces the 
broadcasting of the television programmes, 
including transmission through the 
intermediary of cable operators; whereas in 
accordance with Article 3b of the Treaty 
action by the Community should not go 
beyond what is necessary to achieve its 
objectives in the sphere of television 
broadcasting; whereas the principle that 
Member States are free to lay down stricter 
or more detailed rules for the broadcasters 
under their jurisdiction should be 
reaffirmed, Whereas the approach in Directive 
89/552/EEC and this Directive has been 
adopted to achieve the essential 
harmonisation necessary and sufficient to 
ensure the free circulation of television 
broadcasts in the Community will not be 
restricted for reasons which fall within the 
coordinated fields: whereas Member States 
remain free to apply to broadcasters under 
their jurisdiction more detailed or stricter 
rules in these fields: these rules, which must 
be compatible with Community law7, may 
concern, inter alia, the achievement of 
language policy goals and the taking into 
account of the public interest in terms of 
television's role as a provider of 
information, education, culture and 
entertainment and the need to safeguard 
pluralism in the information industry and 
the media: 
25a. 
26. Whereas Article B of the Treaty on 
European Union states that one of the 
objectives the Union shall set itself is to 
maintain in full the "acquis 
communautaire", Whereas this Directive does not affect 
Member States' capacity to take measures in 
order to ensure the protection of 
competition with a view to avoiding the 
abuse of dominant positions and/or the 
establishment or strengthening of dominant 
positions bv mergers, agreements, 
acquisitions and similar initiatives: 
Whereas Article B of the Treaty on 
European Union states that one of the 
objectives the Union shall set itself is to 
maintain in full the "acquis 
communautaire", 
7 (initial proposal) See, in particular, the judgments in Case 155/73, Sacchi, [1974] ECR 409 and in Case 52/79, Procureur du Roi v 
Debauve. [1980] ECR 833. 
7 (amended proposal) See the judgement in Case C-412/93, Leclerc-Siplec. [1995], ECR 1-179. 
12 
HAVE ADOPTED THIS DIRECTIVE: HAVE ADOPTED THIS DIRECTIVE: 
Article 1 Article 1 
Directive 89/552/EEC is amended as Directive 89/552/EEC is amended as 
follows: follows: 
1. Article 1 is amended as follows: 1. Article 1 is amended as follows: 
(a) point (b) is replaced by the following: (a) point (b) is replaced by the following: 
"(b) "television programme" within the 
meaning of paragraph (a) means an 
animated or non-animated sequence 
of images which may or mav not be 
accompanied bv sound." 
(b) point (c) is replaced by the following : 
"(c) "broadcaster" means the natural or 
legal person who has editorial 
responsibility for the composition of 
schedules of television programmes 
within the meaning of paragraph (b) 
and who transmits them or has them 
transmitted bv a third party." 
13 
"(b) "television advertising" means any 
form of announcement broadcast in 
return for payment or for similar 
consideration by a public or private 
undertaking in connection with a 
trade, business, craft or profession in 
order to promote the supply of 
goods or services, including 
immovable property, or rights and 
obligations, in return for payment. It 
does not include teleshopping;" 
(b) the following point (e) is added: 
"(e) "teleshopping" means television 
programmes and spots containing 
direct offers to the public with a 
view to the sale, purchase or rental 
of products or with a view to the 
supply of services in return for 
payment;" (c) point (d) is replaced by the following : 
"(d) "television advertising" means any 
form of announcement broadcast, 
whether in return for payment or for 
similar consideration or for self-
promotional purposes, by a public or 
private undertaking in connection 
with trade, business, craft or 
profession in order to promote the 
supply of goods or services, 
including immovable property, or 
rights and obligations, in return for 
payment;" 
(d) point (c) in Article 1 of Directive 
89/552/EEC becomes point (e) 
(e) point (d) in Article 1 of Directive 
89/552/EEC becomes point (f) 
(f) the following point (g) is added : 
"(g) "teleshopping" means direct offers 
broadcast to the public with a view 
to the supply of goods or services, 
including immovable property, or 
rights and obligations, in return for 
payment". 
14 
2. Article 2 is replaced by the following: 2. Article 2 is replaced by the following: 
"Article 2 "Article 2 
1. Each Member State shall ensure that all 1. 
television broadcasts transmitted by 
broadcasters under its jurisdiction 
comply with the rules of the system of 
law applicable to broadcasts intended 
for the public in that Member State. Each Member State shall ensure that all 
television broadcasts transmitted by 
broadcasters under its jurisdiction 
comply with the rules of the system of 
law applicable to broadcasts intended 
for the public in that Member State. 
2. The broadcasters under the jurisdiction 2. For the purpose of this directive the 
of a Member State are those established 
in the territory of that Member State, in 
which they must have a fixed 
establishment and actually pursue an 
economic activity. broadcasters under the jurisdiction of a 
Member State are those established in 
the territory of that Member State 
according to paragraph 3 as well as 
those to whom paragraph 4 applies. 
3. For the purposes of this directive, a 
broadcaster is deemed to be established 
in a Member State in the following 
cases : 
(a) the broadcaster has its head office in 
that Member State and the editorial 
decisions about programme schedules 
are taken in that Member State's 
territory: 
15 
(b) if a broadcaster has its head office in 
one Member State but editorial 
decisions on programme schedules are 
taken in another Member State, it shall 
be deemed to be established in the 
Member State where a significant part 
of the workforce involved in the pursuit 
of the television broadcasting activity 
operates: if a significant part of the 
workforce involved in the pursuit of the 
television broadcasting activity operates 
in each of those Member States, the 
broadcaster shall be deemed to be 
established in the Member State where 
it has its head office: if a significant 
part of the workforce involved in the 
pursuit of the television broadcasting 
activity operates in neither of those 
Member States, the broadcaster shall be 
deemed to be established in the 
Member State where it first began 
broadcasting in accordance with the 
system of law of that Member State, 
provided that it maintains a stable and 
effective link with the economy of that 
Member State: 
(ç) if a broadcaster has its head office in a 
Member State but decisions on 
programme schedules are taken in a 
non-member state, or vice-versa, it shall 
be deemed to be established in the 
Member State concerned, provided that 
a significant part of the workforce 
involved in the pursuit of the television 
broadcasting activity operates in that 
Member State. 
3. Broadcasters established outside the 
territory of the Community shall also be 
under the jurisdiction of a Member 
State if they satisfy one of the 
following conditions: 4. Broadcasters which are not established 
in the territory of a Member State 
according to paragraph 3 are deemed to 
be under the jurisdiction of a Member 
State in the following cases : 
16 
(a) they use a frequency granted by that 
Member State, 
(b) although they do not use a frequency 
granted by a Member State, they do use 
a satellite capacity granted by that 
Member State, (a) they use a frequency granted by that 
Member State, 
(b) although they do not use a frequency 
granted by a Member State they do use 
a satellite capacity appertaining to that 
Member State; 
(c) although they use neither a frequency 
nor a satellite capacity granted by a 
Member State, they do use a satellite 
up-link situated in that Member State. 
This Directive shall not apply to 
broadcasts intended exclusively for 
reception in third countries, and which 
are not received directly or indirectly by 
the public in one or more Member 
States." (c) although they use neither a frequency 
granted by a Member State nor a 
satellite capacity appertaining to a 
Member State they do use a satellite 
up-link situated in that Member State. 
5. This Directive shall not apply to 
broadcasts intended exclusively for 
reception in third countries, and which 
are not received directly or indirectly by 
the public in one or more Member 
States." 
17 
3. The following Article 2a is inserted: 3. The following Article 2a is inserted: 
"Article 2a "Article 2a 
Member States shall ensure freedom of 
reception and shall not restrict 
retransmission on their territory of 
television broadcasts from other Member 
States for reasons which fall within the 
fields coordinated by this Directive. They 
may, provisionally, take appropriate 
measures to restrict reception and/or 
suspend retransmission of television 
broadcasts if the following conditions are 
fulfilled: 
(a) a television broadcast coming from 
another Member State manifestly, 
seriously and gravely infringes Article 
22 and/or Article 22a; 
(b) during the previous 12 months, the 
broadcaster has infringed the same 
provision(s) on at least two prior 
occasions; 
(c) the Member State concerned has 
notified the broadcaster and the 
Commission in writing of the alleged 
infringements and of its intention to 
take measures to restrict reception 
and/or suspend retransmission should 
any such infringement occur again; 
(d) consultations with the transmitting State 
and the Commission have not produced 
an amicable settlement within 15 days 
of the notification provided for in point 
(c), and the alleged infringement 
persists. Member States shall ensure freedom of 
reception and shall not restrict 
retransmission on their territory of 
television broadcasts from other Member 
States for reasons which fall within the 
fields coordinated by this Directive. They 
may, provisionally, derogate from the above 
if the following conditions are fulfilled: 
(a) a television broadcast coming from 
another Member State manifestly, 
seriously and gravely infringes Articles 
22 or 22a; 
(b) during the previous 12 months, the 
broadcaster has infringed the same 
provisions) on at least two prior 
occasions; 
(c) the Member State concerned has 
notified the broadcaster and the 
Commission in writing of the alleged 
infringements and of the measures it 
intends to take should any such 
infringement occur again; 
(d) consultations with the transmitting State 
and the Commission have not produced 
an amicable settlement withins 15 days 
of the notification provided for in point 
(c), and the alleged infringement 
persists. 
18 
The Commission shall, within no more than 
two months following notification of the 
measure taken by the Member State, take a 
decision on whether the measure is 
compatible with Community law. If it 
decides that it is not, the Member State will 
be required to put an end to the measure in 
question as a matter of urgency. 
The provision referred to in the first 
paragraph is without prejudice to the 
application of any procedure, remedy or 
sanction to the infringements in question in 
the Member State which has jurisdiction 
over the broadcaster concerned." The Commission shall, within no more than 
two months following notification of the 
measure taken by the Member State, take a 
decision on whether the measure is 
compatible with Community law. If it 
decides that it is not, the Member State will 
be required to put an end to the measure in 
question as a matter of urgency. 
The provision referred to in the first 
paragraph is without prejudice to the 
application of any procedure, remedy or 
sanction to the infringements in question in 
the Member State which has jurisdiction 
over the broadcaster concerned." 
4. Article 3 is replaced by the following: 4. Article 3 is replaced by the following: 
"Article 3 "Article 3 
1. Member States shall remain free to 1. Member States shall remain free to 
require television broadcasters under 
their jurisdiction to comply with more 
detailed or stricter rules in the areas 
covered by this Directive. These rules, 
which must be compatible with 
Community law, may concern, inter 
alia: 
the achievement of language policy 
goals; 
the taking into account of the public 
interest in terms of television's role as a 
provider of information, education, 
culture and entertainment and the need 
to safeguard pluralism in the 
information industry and the media. require television broadcasters under 
their jurisdiction to comply with more 
detailed or stricter rules in the areas 
covered by this Directive. 
19 
2. Member States shall, by appropriate 
means, ensure, .within the framework of 
their legislation, that television 
broadcasters under their jurisdiction 
comply with the provisions of this 
Directive. 
Each Member State shall determine the 
penalties applicable to television 
broadcasting organizations under their 
jurisdiction who do not comply with 
provisions adopted for the 
implementation of this Directive, which 
penalties shall be sufficient to enforce 
compliance. 
3. Member States shall also provide in 
their legislation, as regards television 
broadcasting organizations under their 
jurisdiction, for the possibility of 
invoking interim measures aimed at 
remedying an infringement of the 
provisions of this Directive, if necessary 
by suspending the broadcasting 
licence." Member States shall, by appropriate 
means, ensure, within the framework of 
their legislation, that television 
broadcasters under their jurisdiction 
effectively comply with the provisions 
of this Directive. 
The measures shall include the 
appropriate procedures for third parties 
directly affected, including nationals of 
other Member States, to apply to the 
competent judicial or other authorities 
to seek effective compliance according 
to national provisions." 
5. Article 4 is replaced by the following: 5. Article 4 is replaced by the following: 
"Article 4 "Article 4 
1. Member States shall, by appropriate 
means, ensure that broadcasters reserve 
for European works, within the meaning 
of Article 6, a majority proportion of 
their transmission time, excluding the 
time appointed to news, sports events, 
games, advertising, teletext and 
teleshopping services. 1. Member States shall, by appropriate 
means, ensure that broadcasters reserve 
for European works, within the meaning 
of Article 6, a majority proportion of 
their transmission time, excluding the 
time appointed to news, sports events, 
games, advertising, teletext and 
teleshopping services. 
20 
In the case of channels which devote at 
least 80% of their transmission time, 
excluding the time appointed to 
advertising and teleshopping, to 
cinematographic works, drama, 
documentaries or animation, 
Member States shall allow television 
broadcasting organizations to choose 
between complying with the first 
paragraph or allocating 25% of their 
programming budget to European works 
within the meaning of Article 6. For the 
purposes of this Directive, 
"programming budget" means the 
accounting cost of acquiring, 
commissioning, producing and 
co-producing all those programmes 
broadcast by the channel in question in 
any given year. In the case of channels which devote at 
least 80% of their transmission time, 
excluding the time appointed to 
advertising and teleshopping, to 
cinematographic works, drama, 
documentaries or animation, 
Member States shall allow television 
broadcasting organizations to choose 
between complying with the first 
paragraph or allocating 25% of their 
programming budget to European works 
within the meaning of Article 6. For the 
purposes of this Directive, 
"programming budget" means the 
accounting cost of acquiring, 
commissioning, producing and 
co-producing all those programmes 
broadcast by the channel in question in 
any given year. . 
The proportions referred to in 
paragraphs 1 and 2 shall be attained 
progressively, in stages, no later than 
three years after the date of the first 
broadcast by the channel in question. The proportions referred to in 
paragraphs 1 and 2 shall be attained 
progressively, in stages, no later than 
three years after the date of the first 
broadcast by the channel in question. 
Channels broadcasting entirely in a 
language other than those of the 
Member States are not covered by the 
provisions of this Article or those of 
Article 5. Channels broadcasting entirely in a 
language other than those of the 
Member States are not covered by the 
provisions of this Article or those of 
Article 5. 
Member States shall provide the 
Commission with a report on the 
application of this Article and Article 5 
every two years from the date of 
adoption of this Directive. Member States shall provide the 
Commission with a report on the 
application of this Article and Article 5 
every two years from the date of 
adoption of this Directive. 
21 
That report shall in particular include a 
statistical statement on the achievement 
of the proportion referred to in this 
Article and Article 5 for each of the 
channels falling within the jurisdiction 
of the Member State concerned. 
Member States shall notify the 
Commission of the reasons for the 
failure to attain those proportions and 
the measures they are taking in each 
case to ensure that the television 
broadcasting organization does actually 
attain them. 
The Commission shall inform the other 
Member States and the 
European Parliament of the reports, 
which shall be accompanied, where 
appropriate, by an opinion. The 
Commission shall ensure the application 
of this Article and Article 5 in 
accordance with the provisions of the 
Treaty. The Commission may take 
account in its opinion, in particular, of 
progress achieved in relation to 
previous years, the share of first 
broadcast works in the programming, 
the particular circumstances of new 
television broadcasters and the specific 
situation of countries with a low 
audiovisual production capacity or 
restricted language area." That report shall in particular include a 
statistical statement on the achievement 
of the proportion referred to in this 
Article and Article 5 for each of the 
channels falling within the jurisdiction 
of the Member State concerned. 
Member States shall notify the 
Commission of the reasons for the 
failure to attain those proportions and 
the measures they are taking in each 
case to ensure that the television 
broadcasting organization does actually 
attain them. 
The Commission shall inform the other 
Member States and the 
European Parliament of the reports, 
which shall be accompanied, where 
appropriate, by an opinion. The 
Commission shall ensure the application 
of this Article and Article 5 in 
accordance with the provisions of the 
Treaty. The Commission may take 
account in its opinion, in particular, of 
progress achieved in relation to 
previous years, the share of first 
broadcast works in the programming, 
the particular circumstances of new 
television broadcasters and the specific 
situation of countries with a low 
audiovisual production capacity or 
restricted language area." 
22 
6. Article 5 is replaced by the following: 6. Article 5 is replaced by the following: 
"Article 5 "Article 5 
Member States shall ensure, by appropriate 
means, that broadcasters reserve at least 
10% of their transmission time, excluding 
the time appointed to news, sports events, 
games, advertising, teleshopping and 
teletext services, or alternately, at the 
discretion of the Member States, at least 
10% of their programming budget, for 
European works created by producers who 
are independent of broadcasters. 
This proportion must be achieved by 
earmarking at least 50% for recent works, 
that is to say works transmitted within five 
years of their production." 
7. Article 6 is amended as follows: Member States shall ensure, by appropriate 
means, that broadcasters reserve at least 
10% of their transmission time, excluding 
the time appointed to news, sports events, 
games, advertising, teleshopping and 
teletext services, or alternately, at the 
discretion of the Member States, at least 
10% of their programming budget, for 
European works created by producers who 
are independent of broadcasters. 
This proportion must be achieved by 
earmarking at least 50% for recent works, 
that is to say works transmitted within five 
years of their production." 
7. Article 6 is amended as follows: 
(a) in paragraph 1, point (a) is replaced by (a) in paragraph 1, point (a) is replaced by 
the following: the following: 
"(a) works originating from Member "(a) works originating from Member 
States" States" 
and a new point (d) is added: 
"(d) the application of the provisions of 
paragraphs (b) and (c) is conditional 
on works originating from Member 
States not being the subject of 
discriminatory measures in the third 
countries concerned. " 
23 
(b) paragraph 3 is replaced by the (b) paragraph 3 is replaced by the 
following: following: 
'3. The works referred to in point (c) of 
paragraph 1 are works made exclusively 
or in co-production with producers 
established in one or more Member 
States by producers established in one 
or more European third countries with 
which the Community has concluded 
agreements relating to the audiovisual 
sector, if those works are mainly made 
with authors and workers residing in 
one or more European States." "3. The works referred to in point (c) of 
paragraph 1 are works made exclusively 
or in co-production with producers 
established in one or more Member 
States by producers established in one 
or more European third countries with 
which the Community has concluded 
agreements relating to the audiovisual 
sector, if those works are mainly made 
with authors and workers residing in 
one or more European States." 
(c) the following paragraph 3a is inserted: (c) the following paragraph 3a is inserted: 
"3a. Works that are not European works 
within the meaning of paragraph 1 
but that are produced within the 
framework of bilateral co-production 
treaties concluded between Member 
States and third countries shall be 
deemed to be European works 
provided that the Community co-
producers supply a majority share of 
the total cost of the production and 
that the production is not controlled 
by one or more producers 
established outside the territory of 
the Member States." 
(d) in paragraph 4, the words "and 
paragraph 3a" are added after the words 
"within the meaning of paragraph 1"; "3a. Works that are not European works 
within the meaning of paragraph 1 
but that are produced within the 
framework of bilateral co-production 
treaties concluded between Member 
States and third countries shall be 
deemed to be European works 
provided that the Community co-
producers supply a majority share of 
the total cost of the production and 
that the production is not controlled 
by one or more producers 
established outside the territory of 
the Member States." 
(d) in paragraph 4, the words "and 
paragraph 3 a" are added after the words 
"within the meaning of paragraph 1"; 
24 
8. Article 7 is replaced by the following: 8. Article 7 is replaced by the following: 
"Article 7 "Article 7 
Rightsholders and broadcasters shall agree 
time limits for broadcasting 
cinematographic works. In the absence of 
such agreements, television broadcasting 
organizations shall not broadcast any 
cinematographic work until the following 
periods have elapsed since the work was 
first shown in cinemas in one of the 
Member States: Unless otherwise agreed between 
rightholders and broadcasters, the latter 
shall not broadcast any cinematographic 
work until eighteen months have elapsed 
since the work was first shown in cinemas 
in one of the Member States. 
This period shall be reduced to twelve 
months : 
(a) six months for pay-per-view services; (a) for pav-per-view and pay-television 
channels; 
(b) twelve months for pay-television (b) in the case of cinematographic works 
services other than those referred to co-produced bv the broadcaster." 
in (a); 
(c) eighteen months for services other than 
those referred to in (a) and (b). 
Member States shall ensure that the 
television broadcasting organizations under 
their jurisdiction comply with these 
provisions." 
9. Article 8 is deleted. 9. Article 8 is deleted. 
9a. Article 9 is replaced by the following : 
"Article 9 
This chapter shall not apply to television 
broadcasts intended for local audiences and 
that do not form part of a national 
network." 
10. The title of Chapter IV is replaced by 10. The title of Chapter IV is replaced by 
the following: the following: 
"Television advertising and sponsorship, "Television advertising, sponsorship and 
and teleshopping" teleshopping" 
25 
10a. Article 10 is replaced by the 
following: 
"Article 10 
1. Television advertising and teleshopping 
shall be readily recognizable as such 
and kept quite separate from other parts 
of the programme service by optical 
and/or acoustic means. 
2. Isolated advertising spots and 
teleshopping spots shall remain the 
exception. 
3. Advertising and teleshopping shall not 
use subliminal techniques. 
4. Surreptitious advertising and 
teleshopping shall be prohibited." 
11. In Article 11, paragraph 3 is replaced 
by the following: 11. Article 11 is replaced by the following: 
"Article 11 
"1. Advertisements and teleshopping shall 
be inserted between other programmes. 
Provided the conditions contained in 
paragraph 2 to 5 of this Article are 
fulfilled, advertisements and 
teleshopping may also be inserted 
during programmes in such a way that 
the integrity and value of the 
programme, taking into account natural 
breaks in and the duration and nature of 
the programme, and the rights of the 
rightsholders are not prejudiced." 
2. In programmes consisting of 
autonomous parts, or in sports 
programmes and similarly structured 
events and performances comprising 
intervals, advertisements and 
teleshopping shall only be inserted 
between the parts or in the intervals." 
26 
"3. The transmission of feature films may 
be interrupted once for each complete 
period of 45 minutes. A further 
interruption is allowed if their 
scheduled duration is at least 20 
minutes longer than two or more 
complete periods of 45 minutes." 3. The transmission of audiovisual works 
such as feature films and films made 
for television (excluding series, serials, 
light entertainment programmes and 
documentaries) provided their scheduled 
duration is more that 45 minutes, may 
'-be interrupted once for each period of 
45 minutes. A further interruption is 
allowed if their scheduled duration is at 
least 20 minutes longer than two or 
more complete periods of 45 minutes. 
4. Where programmes, other than those 
covered by paragraph 2, are interrupted 
by advertisements or teleshopping spots, 
a period of at least 20 minutes should 
elapse between each successive 
advertising break within the programme. 
5. Advertisements and teleshopping shall 
not be inserted in any broadcast of a 
religious service. News and current 
affairs programmes, documentaries, 
religious programmes, and children's 
programmes shall not be interrupted by 
advertisements or by teleshopping when 
their scheduled duration is less than 30 
minutes. If their scheduled duration is 
of 30 minutes or longer, the provisions 
of the paragraphs 1 to 4 shall apply." 
12. In Article 12, the introductory words 12. In Article 12, the introductory words 
are replaced by the following: are replaced by the following: 
"Television advertising and teleshopping "Television advertising and teleshopping 
shall not:" shall not:" 
and paragraph (c) is replaced by the 
following : 
"(c) be offensive to religious, 
philosophical or political beliefs;" 
27 
13. Articles 13 and 14 are replaced by the 13. Articles 13 and 14 are replaced by the 
following: following: 
"Article 13 "Article 13 
All forms of television advertising and All forms of television advertising and 
teleshopping for cigarettes and other teleshopping for cigarettes and other 
tobacco products shall be prohibited. tobacco products shall be prohibited. 
Article 14 "Article 14 
Television advertising and teleshopping for 1. Television advertising for medicinal 
medicinal products and medical treatment 
available only on prescription in the 
Member State within whose jurisdiction the 
broadcaster falls shall be prohibited." products and medical treatment 
available only on prescription in the 
Member State within whose jurisdiction 
the broadcaster falls shall be prohibited. 
Teleshopping for medicinal products 
and medical treatment which are subject 
to a marketing authorization within the 
meaning of Directive 65/65/EEC8 as last 
amended bv Directive 89/343/EEC9 
shall be prohibited ." 
14. Article 15 is amended as follows: 14. Article 15 is amended as follows: 
(a) The introductory words are replaced by (a) The introductory words are replaced by 
the following: the following: 
"Television advertising and teleshopping 
for alcoholic beverages shall comply 
with the following criteria:" "Television advertising and teleshopping 
for alcoholic beverages shall comply 
with the following criteria:" 
OJ no.L22, 9.2.1965, p. 369 
OJ no. L142, 25.5.1989, p. 14 
28 
(b) Points (a) to (f) are replaced by the 
following: 
"(a) they may not be aimed specifically 
at minors or, in particular, depict 
minors consuming such beverages; 
(b) they shall not link the consumption of 
alcohol to enhanced physical 
performance or to driving; 
(c) they shall not create the impression that 
the consumption of alcohol contributes 
towards social or sexual success; (b) Points (a) to (f) are replaced by the 
following: 
"(a) they may not be aimed specifically 
at minors or, in particular, depict 
minors consuming such beverages; 
(b) they shall not link the consumption of 
alcohol to enhanced physical 
performance or to driving; 
(c) they shall not create the impression that 
the consumption of alcohol contributes 
towards social or sexual success; 
(d) they shall not claim that alcohol has (d) they shall not claim that alcohol has 
therapeutic qualities or that it is a therapeutic qualities or that it is a 
stimulant, a sedative or a means of stimulant, a sedative or a means of 
resolving personal conflicts; resolving personal conflicts; 
(e) they shall not encourage immoderate (e) they shall not encourage immoderate 
consumption of alcohol or present consumption of alcohol or present 
abstinence or moderation in a negative abstinence or moderation in a negative 
light; light; 
(f) they shall not place emphasis on high 
alcoholic content as being a positive 
quality of the beverages." (f) they shall not place emphasis on high 
alcoholic content as being a positive 
quality of the beverages." 
29 
15. Article 16 is amended as follows: 15. Article 16 is amended as follows: 
(a) The introductory words are replaced by 
the following: 
"Television advertising and teleshopping 
shall not cause moral or physical 
detriment to minors and shall therefore 
comply with the following criteria for 
their protection:" 
(b) Points (a) to (d) are replaced by the 
following: 
"(a) they shall not directly exhort minors 
to buy a product or a service by 
exploiting their inexperience or 
credulity; 
(b) they shall not directly encourage minors 
to persuade their parents or others to 
purchase the goods or services being 
advertised; (a) The introductory words are replaced by 
the following: 
"Television advertising and teleshopping 
shall not cause moral or physical 
detriment to minors and shall therefore 
comply with the following criteria for 
their protection:" 
(b) Points (a) to (d) are replaced by the 
following: 
"(a) they shall not directly exhort minors 
to buy a product or a service by 
exploiting their inexperience or 
credulity; 
(b) they shall not directly encourage minors 
to persuade their parents or others to 
purchase the goods or services being 
advertised; 
(c) they shall not exploit the special trust 
minors place in parents, teachers or 
other persons; (c) they shall not exploit the special trust 
minors place in parents, teachers or 
other persons; 
(d) they shall not unreasonably show (d) they shall not unreasonably show 
minors in dangerous situations." minors in dangerous situations." 
30 
16. Article 17(2) is replaced by the 16. Article 17(2) is replaced by the 
following: following: 
Television programmes may not be 
sponsored by natural or legal persons 
whose principal activity is the 
manufacture or sale of products, or the 
provision of services, the advertising of 
which is prohibited by Article 13." "2. Television programmes may not be "2. Television programmes may not be 
sponsored by undertakings whose 
principal activity is the manufacture or 
sale of cigarettes and other tobacco 
products. 
2a. Sponsorship of television programmes 
by undertakings whose activities include 
the manufacture or sale of medical 
products and medical treatment may 
promote the name or the image of the 
undertaking and may not promote 
specific medical products or medical 
treatments only available on 
prescription." 
17. Article 18 is replaced by the following: 17. Article 18 is replaced by the following: 
"Article 18 "Article 18 
1. The amount of advertising shall not 1. 
exceed 15% of the daily transmission 
time. However, this percentage may be 
increased to 20% if it includes forms of 
advertising other than advertising spots 
and/or teleshopping spots inserted in a 
service that is not exclusively devoted 
to teleshopping, on condition that the 
amount of spot advertising does not 
exceed 15%. 
2. The amount of spot advertising within a 2 
given clock hour shall not exceed 20%." The amount of transmission time of 
teleshopping spots, advertising spots 
and other means of advertising, with the 
exception of teleshopping windows in 
the sense of article 18a shall not exceed 
20% of the daily transmission time. 
The transmission time for advertising 
spots shall not exceed 15% of the daily 
transmission time. 
The amount of advertising spots and 
teleshopping spots within a given clock 
hour shall not exceed 20%. 
3. For the purposes of this article, 
advertising does not include 
announcements made bv the broadcaster 
in connection with its own 
programmes." 
31 
18. The following Articles 18a and 18b are 
inserted: 18. The following Article 18a is inserted : 
"Article 18a "Article 18a 
Teleshopping programmes and spots 
must be easily identifiable as such and 
if they are inserted in a service that is 
not exclusively devoted to this activity 
they must be clearly distinguished from 
that service's other broadcasts, including 
advertising broadcasts, by optical or 
acoustic means. Windows devoted to teleshopping 
broadcast bv a channel not exclusively 
devoted to teleshopping shall be of a 
minimum uninterrupted duration of 15 
minutes. Their overall duration shall 
not exceed three hours per day. They 
must be clearly identified as 
teleshopping windows by optical and/or 
acoustic means." 
2. Teleshopping programmes and spots 
must comply with the provisions of 
Council Directive [concerning consumer 
protection with regard to distance 
selling]10, and in particular with those 
provisions that relate to information on 
contractual obligations. 
Article 18b 
1. Windows devoted to teleshopping and 
inserted in a service not exclusively 
devoted to this activity shall not exceed 
three hours in any twenty-four-hour 
period. 
2. Services devoted exclusively to 
teleshopping shall not be subject to any 
scheduling restrictions as regards time-
limits." 
19. Article 19 is deleted. 19. Article 19 is replaced by the 
following: 
"Article 19 
Articles 18 and 18a shall not apply to 
channels exclusively devoted to 
advertising and/or teleshopping." 
OJNoL 
32 
20. Article 20 is replaced by the following: 20. Article 20 is replaced by the following: 
"Article 20 "Article 20 
Without prejudice to Article 3, Member 
States may, with due regard for Community 
law, lay down conditions other than those 
laid down in Article 11(2) to (5) and 
Articles 18 and 18b in respect of broadcasts 
intended solely for the national territory 
which cannot be received, directly or 
indirectly, in one or more other Member 
States." 
21. Article 21 is deleted. Without prejudice to Article 3, Member 
States may, with due regard for Community 
law, lay down conditions other than those 
laid down in Article 11(2) to (5) and 
Articles 18 and 18a in respect of broadcasts 
intended for local audiences which cannot 
be received, directly or indirectly by the 
public, in one or more other Member 
States." 
21. Article 21 is deleted. 
22. The title of Chapter V is replaced by 22. The title of Chapter V is replaced by 
the following: the following: 
"Protection of minors and public morality" "Protection of minors and public order" 
23. Article 22 is replaced by the following: 
"Article 22 
1. Member States shall take appropriate 1, 
measures to ensure that television 
broadcasts, including trailers, by 
broadcasters under their jurisdiction do 
not include programmes which might 
seriously impair the physical, mental or 
moral development of minors, in 
particular those that involve 
pornography or gratuitous violence. "Article 22 
Member States shall take appropriate 
measures to ensure that television 
broadcasts by broadcasters under their 
jurisdiction do not include any 
programmes, which might seriously 
impair the physical, mental or moral 
development of minors, in particular 
those that involve pornography or 
gratuitous violence. 
33 
The measures provided for in paragraph 
1 shall also extend to other programmes 
which are likely to impair the physical, 
mental or moral development of minors, 
except where it is ensured, by selecting 
the time of the broadcast or by any 
technical measure, that minors in the 
area of transmission will not normally 
hear or see such broadcasts." 
24. The following Articles 22a and 22b are 
inserted: 2. The measures provided for in paragraph 
1 shall also extend to other programmes 
which are likely to impair the physical, 
mental or moral development of minors, 
except where it is ensured, by selecting 
the time of the broadcast or by any 
technical measure, that minors in the 
area of transmission will not normally 
hear or see such broadcasts. 
Furthermore, when such programmes 
are broadcast in unencoded form 
Member States shall ensure that thev 
are preceded bv an acoustic warning or 
are identified bv the presence of a 
visual symbol throughout their duration. 
The following Articles 22a and 22b are 
inserted: 
"Article 22a "Article 22a 
Member States shall ensure that broadcasts 
do not contain any incitement to hatred on 
grounds of race, sex, religion or nationality. Member States shall ensure that broadcasts 
do not contain any incitement to hatred on 
grounds of race, sex, religion or nationality. 
Article 22b Article 22b 
The Commission shall attach particular 
importance to application of this chapter in 
the report provided for in Article 26." 1. The Commission shall attach particular 
importance to application of this chapter 
in the report provided for in Article 26. 
2. The Commission shall, in liaison with 
the competent Member State authorities, 
carry out an investigation of the 
possible advantages and drawbacks of 
further measures with a view to 
facilitating the control exercised by 
parents or guardians over the 
programmes that minors may watch. 
34 
24a. In Article 23, paragraph 1 is replaced 
by the following: 
"1. Without prejudice to other provisions 
adopted by the Member States under civil, 
administrative or criminal law, any natural 
or legal person, regardless of nationality, 
whose legitimate interests, in particular 
reputation and good name, have been 
damaged by an incorrect assertion in a 
television programme must have a right of 
reply or equivalent remedies. Member 
States shall ensure that the actual exercise 
of the right of reply is not hindered by the 
imposition of unreasonable terms or 
conditions. The reply shall be transmitted 
within a reasonable time subsequent to the 
request, in conditions as similar as possible 
to those of the broadcast the request refers 
to. 
25. Article 25 is deleted. 
26. Article 26 is replaced by the following: 
"Article 26 
Not later than the end of the third year after 
the date of the adoption of this Directive 
and every two years thereafter, the 
Commission shall submit to the European 
Parliament, the Council and the Economic 
and Social Committee a report on the 
application of this Directive and, if 
necessary, make further proposals to adapt 
it to developments in the field of television 
broadcasting, in particular in the light of 
technological developments since its 
adoption." 
35 
Article 2 Article 2 
1. Member States shall bring into force 1. 
the laws, regulations and administrative 
provisions necessary to comply with 
this Directive not later than one year 
after the date of its adoption. They 
shall immediately inform the 
Commission thereof. Member States shall bring into force 
the laws, regulations and administrative 
provisions necessary to comply with 
this Directive not later than one year 
after the date of its adoption. They 
shall immediately inform the 
Commission thereof. 
When Member States adopt these 
provisions, these shall contain a 
reference to this Directive or shall be 
accompanied by such reference at the 
time of their official publication. The 
procedure for such reference shall be 
adopted by Member States. 
2. Member States shall communicate to 
the Commission the text of the main 
provisions of national law which they 
adopt in the field covered by this 
Directive. When Member States adopt these 
provisions, these shall contain a 
reference to this Directive or shall be 
accompanied by such reference at the 
time of their official publication. The 
procedure for such reference shall be 
adopted by Member States. 
Member States shall communicate to 
the Commission the text of the main 
provisions of national law which they 
adopt in the field covered by this 
Directive. 
Article 3 Article 3 
This Directive shall enter into force on the 
twentieth day following that of its 
publication in the Official Journal of the 
European Communities. 
Article 1 point 5 shall be effectively applied 
for a period of ten years from the date of 
entry into force of this Directive. 
Article 4 This Directive shall enter into force on the 
twentieth day following that of its 
publication in the Official Journal of the 
European Communities. 
Article 1 point 5 shall be effectively applied 
for a period of ten years from the date of 
entry into force of this Directive. 
Article 4 
This Directive is addressed to the Member 
States. This Directive is addressed to the Member 
States. 
36 
ISSN 0254-1475 
COM(96) 200 final 
DOCUMENTS 
EN 16 
Catalogue number : CB-CO-96-210-EN-C 
ISBN 92-78-03593-9 
Office for Official Publications of the European Communities 
L-2985 Luxembourg 
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