WRITTEN QUESTION E-1601/99

by Klaus-Heiner Lehne (PPE-DE) to the Commission

(15 September 1999)

Subject: Transposition of the EC television Directive Inter-Länder Treaty

Article 10(1) of the EC television Directive (Dir 89/0552/EEC(1) as amended by Dir 97/0036/EC(2)) requires clear separation between advertising and programmes. This principle of separation between advertising and programmes has now been incorporated into German broadcasting law. Section 7(4) of the third German Inter-Länder Treaty on Broadcasting 1997, lays down the same principle. A new Inter-Länder Treaty on Broadcasting is currently being prepared. On 24 June 1999 the German Land prime ministers approved the draft fourth amending Inter-Länder Treaty on Broadcasting; it now must be ratified in all 16 Land parliaments and is due to come into force on 1 April 2000. A new Section 7(4) has been inserted which reads as follows:

A transmitted image may include advertising, provided that the advertising is clearly optically separate from the rest of the programme and identified as such.

Section 7(4) thus allows broadcasters to split a screen image into a programme and an advertising window at the same time. Much the same applies to what is termed virtual advertising, involving the technical capability to subsequently alter an image so that either complete advertising messages are inserted into the image or an existing advert is modified. The insertion of virtual advertising is to be allowed under the fourth amending Inter-Länder Treaty on Broadcasting, pursuant to Section 7(6), provided that reference is made to this at the start and end of the broadcast in question and an existing advert is to be replaced.

Taking this into consideration:

1. In the Commission's view, is there an infringement of the principle of separation under Article 10 of the EC television Directive if advertising and programming are allowed at the same time and they are simply physically separate on screen?

2. In the Commission's view, is it compatible with the EC television Directive to allow virtual advertising?

3. Is the Commission acquainted with the expert opinions, which have led to a major change in legal interpretation, that a time-delay between advertising and programmes is not mandatory?

4. If so, what are the expert opinions in question?

5. How does the Commission assess the intended amendments in the fourth amending Inter-Länder Treaty on Broadcasting due to come into force in Germany on 1 April 2000?

(1) OJ L 298, 17.10.1989, p. 23.

(2) OJ L 202, 30.7.1997, p. 60.

Answer given by Mrs Reding on behalf of the Commission

(27 October 1999)

1. Council Directive 89/0552/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 was amended by Directive 97/0036/EC of the Parliament and the Council of 30 June 1997. Article 10 (1) of the Directive is worded as follows: Television advertising and teleshopping shall be readily recognisable as such and kept quite separate from other parts of the programme service by optical and/or acoustic means.

This does not exclude the simultaneous transmission of a programme and television advertising. However, a partial occupation of the screen by advertising would only be permissible when such advertising is clearly recognisible as such and clearly separated from the programme. It goes without saying that such advertising must meet all the requirements of the Directive with regard to television advertising, in particular the time constraints laid down in Article 11 and 18.

2. So-called virtual advertising is not prohibited by the Directive. The Directive covers all forms of television advertising, defined in Article 1 (c) as any form of announcement broadcast whether in return for payment or for similar consideration. The Directive also covers sponsorship of television programmes, which is subject to specific conditions.

Virtual advertising is a relatively new phenomenon which, depending on the particular circumstances, could fall within the definition of television advertising or of sponsorship. It should be noted that surreptitious advertising is clearly forbidden by Article 10(4) of the Directive.

Taking into account the wide variety of possibilities offered by so-called virtual advertising and the fact that practices of broadcasters in this respect are still evolving, an assessment of the legal implications with regard to the Directive is only possible on a case by case basis.

3. and 4. According to the revised Directive a temporal separation between advertising time and the programme itself is not obligatory. Article 10(1) requires only separation by optical and/or acoustic means. The Commission is not aware of the expert opinions to which the Honourable Member refers.

5. According to Article 27 of Directive 89/0552/EEC as amended, Member States had to bring into force the laws, regulations and administrative provisions necessary to comply with this Directive not later than 30 December 1998, and to inform the Commission thereof.

Germany has not notified the Commission that it has adopted all the necessary provisions to implement the Directive. Neither is the Commission in possession of any other information which could lead it to suppose that the relevant provisions have been formally adopted. The Commission therefore has sent a reasoned opinion to Germany.

The Commission is therefore not in a position to make a judgement on possible amendments to the German Inter-Länder Treaty on broadcasting.