COMMISSION OF THE EUROPEAN COMMUNITIES 
Brussels, 04.12.1996 
COM(96) 626 final 
95/0074 (COD) 
OPINION OF THE COMMISSION 
pursuant to Article 189 b (2) (d) of the EC Treaty, 
on the European Parliament's amendments 
to the Council's common position regarding the 
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 
AMENDING THE PROPOSAL OF THE COMMISSION 
pursuant to Article 189 a (2) of the EC Treaty 

EXPLANATORY MEMORANDUM 
L The 19R9 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). 
Z 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 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 at the beginning of 1997). 
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 
2 
3 
4 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, 06.10.1993). 
See also the recent "Green Paper on the legal protection of encrypted signals" COM(96)76 
OJ C185, p. 4, 19.07.1995 
OJ C065, p.61, 04.03.1996 
e 
subject to the amendments it had made. 
The Commission accordingly adopted an amended proposal incorporating inter alia those 
parliamentary amendments it had accepted in Plenary5. 
The Council adopted its Common Position on 8.07.1996. This was transmitted to Parliament 
at the same time as the Commission's Communication on the Common Position in accordance 
with the second sub-paragraph of Article 189b(2) of the EC Treaty6. 
The Parliament adopted on 12.11.1996 a decision amending the Common Position "with a 
view to the adoption of a European Parliament and Council Directive amending Council 
Directive 89/552/EEC"7. 
it The Commissions Opinion 
The Commission is required at this stage to deliver an Opinion pursuant to Article 189b(2)(d) 
of the EC Treaty. This is the purpose of the present document, which constitutes a new 
amended proposal, based on the Common Position (accepted by the Commission), and which 
incorporates those amendments adopted by Parliament on which the Commission has a 
positive opinion (presented in the right hand column in the following pages). Certain 
amendments have been re-drafted and/or re-numbered where the Commission considers this 
necessary. The reasons for the Commission's position are explained in the comments section 
below each amendment. 
4j_ Conclusion 
The Commission hereby submits to the European Parliament and Council its Opinion pursuant 
to Article 189b(2)(d) of the EC Treaty constituting its amended proposal pursuant to Article 
189a(2) of the EC Treaty. 
COM(96)200 final of 07.05.1996 
OJC222, p.10, 30.07.1996 
6 SEC(96)1292 final, 11.07.1996 
7 EP 253.831 
3 
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) 
LI 
Amendment 1 
Recital 5a (new) 
Common Position of the Council Amended Proposal 
(5a) Whereas the Commission has submitted 
a Green Paper on Protection of Minors and 
of Human Dignity in new audiovisual and 
information services and has undertaken to 
submit a Green Paper focusing on 
developing the cultural aspects of new 
services; 
Comment : the wording has been adapted to take account of the adoption by the Commission 
on 16 October 1996 of the first Green Paper. The Commission accepts this purely factual 
amendment, but would point out that, strictly speaking, it is out of place in a legal text. 
S~ 
Amendment 2 
Recital 6 
Common Position of the Council Amended Proposal 
(6) Whereas any legislative framework (6) Whereas any legislative framework 
concerning new audiovisual services must concerning new audiovisual services must 
be compatible with the primary objective of include arrangements which are in line with 
this Directive which is to create the legal the spirit and objectives of this Directive: 
framework for the free movement of 
services: 
Comment : Numbered 5b in Parliament's amendment, in fact corresponds to recital n° 6 in 
the Common Position 
C 
Amendment 3 
Recital 6a (new) 
Common Position of the Council Amended Proposal 
(6a) Whereas, however, pending the 
introduction of a comprehensive European 
legal framework for the new services, the 
Member States should take action with 
regard to services comparable to television 
broadcasting in order to prevent any breach 
of the fundamental principles which must 
govern information and the emergence of 
wide disparities as regards free movement 
and competition; 
Comment : Slight drafting change to Parliament's amendment, for legal reasons. 
3 
Amendment 4 
Recital 19a (new) 
Common Position of the Council Amended Proposal 
(19a) Whereas, with a view to promoting 
the production of European works according 
to the objectives of the MEDIA programme, 
the Community should provide appropriate 
financial support to particular artistic works, 
including those realized by independent 
producers and to co-production works with 
producers established in two or more 
Member States; 
% 
Amendment 5 
Recital 21 
Common Position of the Council Amended Proposal 
(21) 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) of 
that Directive, draws the conclusion that 
measures to promote European works can 
contribute to such an improvement; (21) Whereas, in addition to the 
considerations cited above, it is necessary to 
create conditions for improving the 
competitiveness of the programme industry; 
whereas the communications on the 
application of Articles 4 and 5 of Directive 
89/552/EEC, adopted by the Commission 
on 3 March 1994 and 15 July 1996 
pursuant to Article 4(3) of that Directive, 
draw the conclusion that measures to 
promote European works can contribute to 
such an improvement but that they need to 
take account of developments in the field of 
TV broadcasting; 
3 
Amendment 6 
Recital 20a (new) 
Common Position of the Council Amended Proposal 
(20a) Whereas the production and 
distribution of European works should also 
be promoted by a Guarantee Fund; 
Comment : numbering change (recital 20a instead of 22a) in order to align with numbering 
in Common Position 
A 
Amendment 7 
Recital 22a (new) 
Common Position of the Council Amended Proposal 
(22a) Whereas for the purposes of the 
implementation of the measures designed to 
promote works created by 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 
20% of the share capital of the 
production company (50% if more 
than one television broadcaster is 
involved); 
over a three-year 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, 
except where the broadcaster is 
predominantly using a minority 
language in the Member State 
concerned; 
the producer does not hold a 
significant number of shares in a 
broadcaster; 
Comment : Numbering change (22a instead of 22b) 
14 
Amendment 8 
Recital 22b (new) 
Common Position of the Council Amended Proposal 
(22b) Whereas Member States shall also 
take into account the destination and 
ownership of secondary rights when 
assessing the criteria of independence: 
Comment : Numbering change (22b instead of 22c) 
4 4 
Consequence of Amendment 29 
Recital 23 
Common Position of the Council Amended Proposal 
(23) Whereas the question of specific time 
scales for each type of television showing 
of cinematographic works is primarily a 
matter to be settled by means of agreements 
between the interested parties or 
professionals concerned; whereas, however, 
in the absence of such agreements, a 
schedule for the showing of such works 
should be drawn up; (23) Whereas the question of specific time 
scales for each type of television showing 
of cinematographic works is primarily a 
matter to be settled by means of agreements 
between the interested parties or 
professionals concerned; 
(deletion) 
Comment : Deletion of second part as a consequence of Amendment 29 (Article 7) 
U 
Amendment 9 
Recital 35 
Common Position of the Council 
(35) Whereas the approach in Directive 
89/552/EEC and this Directive has been 
adopted to achieve the essential 
harmonization necessary and sufficient to 
ensure the free movement of television 
broadcasts in the Community; whereas 
Member States remain free to apply to 
broadcasters under their jurisdiction more 
detailed or stricter rules in the fields 
coordinated by this Directive, including, 
inter alia, rules concerning the achievement 
of language policy goals and of the 
protection 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 and the protection of competition 
with a view to avoiding the abuse of 
dominant positions and/or the establishment 
or strengthening of dominant positions; 
whereas such rules must be compatible with 
Community law; Amended Proposal 
(35) Whereas the approach in Directive 
89/552/EEC and this Directive has been 
adopted to achieve the essential 
harmonization necessary and sufficient to 
ensure the free movement of television 
broadcasts in the Community; whereas 
Member States remain free to apply to 
broadcasters under their jurisdiction more 
detailed or stricter rules in the fields 
coordinated by this Directive, including, 
inter alia, rules concerning the achievement 
of language policy goals and of the 
protection 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 and the protection of competition 
with a view to avoiding the abuse of 
dominant positions, for example by securing 
exclusive rights to major events to the 
disadvantage of the majority and/or the 
establishment or strengthening of dominant 
positions; whereas such rules must be 
compatible with Community law; 
y 
Amendment 11 
Recital 35a (new) 
Common Position of the Council Amended Proposal 
(35a) Whereas the objective of supporting 
audiovisual production in Europe can 
furthermore be pursued within the Member 
States inter alia through the definition of a 
public interest mission for certain 
broadcasting organizations, including the 
obligation to contribute substantially to 
investment in European production: 
Comment : numbering change (35a instead of 35b). The term "European (instead of "national 
and local") production is appropriate in order to avoid potential contradictions with 
Community law. 
ir 
Amendment 14 
ARTICLE l(l)(b) 
Article 1(c) (Directive 89/552/EEC) 
Common Position of the Council 
'television advertising' means any 
form of announcement broadcast 
whether in return for payment or for 
similar consideration or broadcast 
for self-promotional purposes 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, rights and obligations, in 
return for payment; Amended Proposal 
(c) 'television advertising' means any (c) 'television advertising' means any 
form of announcement broadcast whether in 
return for payment or for similar 
consideration or broadcast for self-
promotional purposes 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, rights and 
obligations, in return for payment or by 
distributing such goods as a free promotion. 
It shall include all items of publicity 
broadcast on behalf of someone other than 
the broadcaster in advertising breaks. It 
shall not include teleshopping; 
Comment : the Commission indicated in Plenary its agreement in substance on this 
amendment but also indicated that the wording was not entirely appropriate. This is because 
the objective of excluding "public service announcements and charity appeals" from the daily 
and hourly time limits is already met by the Common Position in Article 18, new paragraph 
3. Moreover, new recitals 25 and 26 in the Common Position already deal adequately with 
the question of announcements made by the broadcaster in connection with its own 
programmes and ancillary products directly derived from these. The drafting of this 
paragraph has been amended accordingly. 
y]G 
Amendment 23 
ARTICLE l(5)(a) (new) 
Article 4(2) (Directive 89/552/EEC) 
Common Position of the Council Amended Proposal 
"5(a) In Article 4. paragraph 2 is replaced 
by the following : 
2. Where the proportion laid down in 
paragraph 1 cannot be attained, it must not 
be lower than the average for 1992 in the 
Member State concerned." 
Comment : The Commission gave a positive opinion on amendment 23 in Plenary in the 
context of a system including investment obligations, in the spirit of its initial proposal. 
However, the Parliament failed to adopt the amendment on investment obligations (am. n " 22) 
which was designed to introduce the necessary flexibility into the system. Consequently, the 
"no-back sliding" clause in amendment 23 would become extremely difficult to apply. The 
underlying purpose being to update the reference year for the "acquis communautaire", the 
Commission proposes the same formula as in the Common Position but with a reference to 
1992, as in the Parliamentary amendment, instead of 1988 (or 1990 for Greece and Portugal). 
There is also a numbering change (5a instead of 5c) 
"^ 
Amendment 24 
ARTICLE l(5)(b) (new) 
Article 4(2a) (new) (Directive 89/552/EEC) 
Common Position of the Council Amended Proposal 
b) The following new paragraph 2a is 
inserted : 
"2a Channels broadcasting entirely in a 
language other than those of the Member 
States shall not be covered bv the 
provisions of this Article or Article 5. 
Where such a language or languages are a 
substantial but not exclusive part of the 
channel's transmission time, the provisions 
of this Article and Article 5 shall not apply 
to that part of transmission time." 
Comment : Rewording of amendment for purposes of clarification. 
n<g 
Amendment 25 
ARTICLE l(5)(c) (new) 
Article 4(3) (Directive 89/552/EEC) 
Common Position of the Council Amended Proposal 
c) Paragraph 3 is replaced by the 
following : 
"3. Member States shall provide the 
Commission every two years with a report 
on the application of this Article and Article 
5 from the date of adoption of this 
Directive. 
That report shall in particular comprise all 
qualitative assessments and statistical 
information supplied to the Member State 
concerned by the channels falling within its 
jurisdiction for the purpose of ascertaining 
whether the proportion referred to in this 
Article and Article 5 has been achieved. In 
addition Member States shall indicate to the 
Commission the reasons for the failure to 
attain those proportions and the appropriate 
measures they propose to take in each case 
to ensure that the TV broadcasting 
organization does actually attain them. 
The Commission shall inform the other 
Member States and the European Parliament 
ofthe reports, which shall be accompanied 
bv 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." 
1 <3 
Amendment 29 
ARTICLE 1(8) 
Article 7 (Directive 89/552/EEC) 
Common Position of the Council Amended Proposal 
Article 7 shall be replaced by the Article 7 shall be replaced by the 
following : following : 
"1. Unless otherwise agreed between "Article 7 
rightsholders and broadcasters, the latter Member States shall ensure that 
shall not broadcast any cinematographic broadcasters under their iurisdiction do not 
work until eighteen months have elapsed broadcast cinematographic works outside 
since the work was first shown in cinemas periods agreed with the rightholders." 
in one of the Member States. 
2. The period referred to in paragraph 1 
shall be reduced to twelve months : 
(a) for pay-per-view and pay-television 
channels; 
(b) in the case of cinematographic works 
co-produced by the broadcaster. " 
2o 
Amendment 31 
ARTICLE 1(12) 
Article 10 (Directive 89/552/EEC) 
Common Position of the Council Amended Proposal 
Article 10 shall be replaced by the Article 10 shall be replaced by the 
following : following : 
"Article 10 "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. 1. Television advertising and teleshopping 
broadcasts, spots and windows 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 and teleshopping 2. Isolated advertising and teleshopping 
spots shall remain the exception. spots shall remain the exception. 
3. Advertising and teleshopping shall not 
use subliminal techniques. 3. Advertising and teleshopping broadcasts, 
spots and windows shall not use subliminal 
techniques. 
4. Surreptitious advertising and teleshopping 
shall be prohibited." 4. Surreptitious advertising and teleshopping 
broadcasts, spots and windows shall be 
prohibited." 
2 "7 
Amendment 33 
ARTICLE 1(14), SECOND SUBPARAGRAPH (new) 
Article 12(c) (Directive 89/552/EEC) 
Common Position of the Council Amended Proposal 
"Article 12(c) is replaced by the following 
(c) be offensive to religious, 
philosophical or political beliefs:" 
2 d 
Amendment 36 
ARTICLE 1(21) 
Article 18a(la) (new) 
Common Position of the Council Amended Proposal 
The following Article shall be inserted : 
"Article 18a 
1. (no change) 
ia 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 and 
acoustic means, so that any fraudulous 
intent to circumvent the rules applying to 
advertising can be excluded. 
2. (no change) 
Comment : This is the first part of amendment 36. The Commission has a negative opinion 
on the second part (which does not therefore appear here). 
Z 3 
Amendment 38 
ARTICLE 1(18) 
Article 16(1) (Directive 89/552/EEC) 
Common Position of the Council Amended Proposal 
In Article 16, the present text shall become 
paragraph 1 and the following paragraphs 
shall be added : 
"(la) Member States shall take the 
necessary measures to ensure that 
broadcasts bv broadcasters under their 
jurisdiction do not include advertising spots 
which might seriously impair the 
psychological well-being of minors. 
2. (no change)" 
Comment : the 2nd part of amendment 38 has been re-located in the appropriate Article of 
Chapter IV, which concerns the provisions on advertising. The word "programme " has been 
replaced by "broadcast" because it is already a fundamental principle of the Directive that 
programmes and advertising should be kept separate (cf. Article 10 § 1). The matter of 
programme announcements (1st part of amendment 38) is already covered by the phrase 
"including trailers" included in the amended version of Article 22 (cf. infra). 
*W 
Amendment 38 
ARTICLE 1(27) 
Article 22(1) (Directive 89/552/EEC) 
Common Position of the Council Amended Proposal 
Article 22 shall be replaced by the Article 22 shall be replaced by the 
following : following : 
"1. 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." "1. Member States shall take appropriate 
measures to ensure that television 
broadcasts, including trailers, 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. 
2. (no change) 
3. (no change)" 
Comment : Corresponds to 1st part of Amendment 38 
2.S 
Amendment 43 
ARTICLE 1 (31) 
Article 23a (2) (aa) (new) 
Common Position of the Council Amended Proposal 
"aa) to deliver own-initiative opinions or 
opinions requested by the Commission on 
the application by the Member States of the 
provisions of this Directive, without 
prejudice to the Commission's powers 
under Articles 155 and 169 of the Treaty;" 
Comment : it is appropriate to add "vAthout prejudice ... "for reasons of conformity with the 
Treaty provisions. 
Z G 
Amendment 44 
ARTICLE 1(31) 
Article 23a (2) (c) 
Common Position of the Council Amended Proposal 
"c) to discuss the outcome of regular "c) to discuss the outcome of regular 
consultations which the Commission holds consultations which the Commission holds 
with representatives of broadcasting with representatives of broadcasting 
organisations, producers, consumers, organisations, producers, consumers, 
manufacturers, service providers and trade manufacturers, service providers and trade 
unions;" unions and the creative community;" 
2} 



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COM(96) 626 final 
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