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
Date: 1996-05-07
Institutions: European Commission
Subjects: approximation of laws, audiovisual communications policy, broadcasting, free movement of programmes, television

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 
the 
introductory  statement  and  the proposal  for  a Directive  amending  the  1989 Directive  on 

including  the  application  report, 

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 
4 

OJC185, p. 4,  19.07.1995 
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 
is  adjusted  according  to  the  amendment. 
parties.  The  duration  of  the  windows 
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, 

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 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  proposal  from  the 
Commission, 

Having  regard 
Economic  and  Social  Committee2, 

the  opinion  of  the 

to 

Having  regard 
the  opinion 
Economic and Social  Committee, 

to 

of 

the 

Acting  in  accordance  with  the  procedure 
referred  to  in Article  189b of the Treaty3, 

Acting  in  accordance  with  the  procedure 
referred  to in Article  189b of the Treaty, 

1. Whereas Council Directive  89/552/EEC4 
constitutes 
for 
legal 
broadcasting  in the internal market; 

framework 

the 

Whereas  Council  Directive  89/552/EEC 
constitutes 
for 
legal 
broadcasting in the internal market; 

framework 

the 

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; 

26 

Whereas  Article 
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 
its 
application have revealed the need to clarify 
certain  definitions  or  obligations  on 
Member States under this Directive; 

the  report  on 

Whereas  the  application  of  Directive 
89/552/EEC  and 
its 
application have revealed the need to clarify 
certain  definitions  or  obligations  on 
Member States under this Directive; 

the  report  on 

in 

the  Commission 

4.  Whereas 
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 
sector  opened  up  by  new 
technologies,.while at the same time taking 
into  account 
in 
particular  the  cultural  and  sociological 
audiovisual  programmes, 
impact, 
whatever their mode of transmission; 

the  specific  nature, 

this 

of 

in 

Whereas 
its 
the  Commission 
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 
sector  opened  up  by  new 
technologies, while at the same time taking 
into  account 
in 
particular  the  cultural  and  sociological 
impact, 
audiovisual  programmes, 
whatever their mode of transmission; 

the  specific  nature, 

this 

of 

5.  Whereas  the  Council  welcomed  this 
action  plan  at  its  1787th  meeting  on  28 
September  1994  and  stressed  the  need  to. 
the 
improve 
European audiovisual industry; 

the  competitiveness  of 

Whereas the  Council  welcomed  this action 
plan at its 1787th meeting on 28 September 
1994  and stressed the  need  to  improve the 
the  European 
of 
competitiveness 
audiovisual industry; 

5a. 

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 
for  a  revision  of  Directive 
proposal 
89/552/EEC before their next meeting; 

the  Heads  of  State  and 
Whereas 
Government  meeting  at  the  European 
Council  in  Essen  on  9  and  10  December 
1994 called on the Commission to present a 
for  a  revision  of  Directive 
proposal 
89/552/EEC before their next meeting; 

to 

7.  Whereas  the  application  of  Directive 
89/552/EEC has revealed the need to  clarify 
the  concept  of  jurisdiction  as  applied 
the  audiovisual  sector; 
specifically 
whereas,  in  view  of  the  case  law  of  the 
Court  of 
the  European 
Communities,  the  establishment  criterion 
should  be  made  the  principal  criterion 
determining  the jurisdiction  of  a  particular 
Member State; 

Justice  of 

to 

Whereas 
the  application  of  Directive 
89/552/EEC has revealed the need to  clarify 
the  concept  of  jurisdiction  as  applied 
the  audiovisual  sector; 
specifically 
whereas,  in  view  of  the  case  law  of  the' 
Court  of 
the  European 
Communities,  the  establishment  criterion 
should  be  made  the  principal  criterion 
determining  the jurisdiction  of  a  particular 
Member State; 

Justice  of 

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; 

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; 

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  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 
is 
television  broadcasting  activity 
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; 

take  measures  against  a 

Whereas the Court of Justice has constantly 
held  that  a  Member  State  retains  the  right 
to 
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 
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; 

if 

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 
in  Article  2  of 
conditions 
Directive 
they 
comply  with  Community 
law  and  the 
international  obligations  of the  Community; 

laid  down 
89/552/EEC,  provided 

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 
in  Article  2  of 
conditions 
Directive 
they 
comply  with  Community 
law  and  the 
international  obligations  of the  Community; 

laid  down 
89/552/EEC,  provided 

from  differences 

13.  Whereas  in  order  to  eliminate  the 
obstacles  arising 
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 
provisions 
harmonizing  the  conditions  of  competition; 

trade  must 

contain 

from  differences 

Whereas  in order to  eliminate  the  obstacles 
arising 
in  national 
legislation  on  the  promotion  of  European 
contains 
works,  Directive  89/552/EEC 
provisions  aimed  at  harmonizing 
these 
those  provisions 
regulations;  whereas 
which,  in  general,  permit  the  liberalization 
of 
provisions 
harmonizing  the  conditions  of  competition; 

trade  must 

contain 

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; 

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; 

to 

strengthen 

15.  Whereas the  Green Paper on "Strategy 
options 
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) 

to 

for 

improving 

in  addition 

the  Communication  on 

16.  Whereas, 
the 
considerations cited above, it is necessary to 
create  conditions 
the 
competitiveness of the programme industry; 
the 
whereas 
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. 

to 

strengthen 

Whereas  the  Green  Paper  on  "Strategy 
options 
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; 

broadcasting 

organizations, 
Whereas 
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: 

the  Communication  on 

Whereas,  in  addition  to  the  considerations 
it  is  necessary  to  create 
cited  above, 
conditions 
the 
improving 
for 
competitiveness of the programme industry; 
the 
whereas 
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, 
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) 

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: 

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; 

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; 

Whereas, at the end of the ten-year period, 
any national measures in this field must not 
interfere  with 
free 
circulation  of  services  by  restricting  the 
reception  or  retransmission  of  television 
broadcasts from other Member States; 

the  principle  of 

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; 

Whereas the proportions of European works 
must be achieved taking economic  realities 
into  account;  whereas,  therefore, 
is 
necessary to introduce a progressive system 
for achieving this objective; 

it 

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  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) 

of 

for 

the  purposes 

the 
Whereas, 
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 
than  one 
television broadcaster  is  involved): 

if  more 

(50% 

=  over  a  three-vear  period  the  producer 
supplies  to  the  same  broadcaster  no 
more than  90% of  the works  produced, 
the 
unless,  over  the  same  period, 
producer makes only one programme or 
only  one  series: 

= 

the producer does not hold a  significant 
number of  shares in a broadcaster: 

shall  be 

Whereas, in applying the above criteria, due 
specific 
account 
characteristics 
States' 
audiovisual  systems,  in  particular  those  of 
Member  States  with  a  lesser  audiovisual 
capacity  or a limited  language  area: 

taken  of 
of  Member 

Whereas Member  States  may  also take  into 
account  the  destination  and  ownership  of 
secondary  rights when  assessing the  criteria 
of  independence: 

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, 
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; 

in 

Whereas the question of specific time  scales 
for  each  type  of  television  showing  of 
cinematographic  works is primarily a matter 
individual  contracts; 
to  be  settled  by 
whereas,  however, 
the  absence  of 
in 
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; 

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  transmission  time  allotted  to 
to  programme 
announcements  relating 
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 
in  place  appropriate  standards 
putting 
regulating 
form  and  content  of 
broadcasts; 

the 

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 
whereas 
latter  programmes  when 
moreover  the 
broadcast  in  unencoded  form  should  be 
identified through optical or acoustic means 
regardless of the time of the broadcast: 

legitimate  concerns; 

10 

24(a) 

24b. 

in 

sensibility 

it  appears  possible 

to 
Whereas,  since 
harmonize  national  rules  on  the  protection 
of minors  only to  a limited  extent  owing  to 
differences 
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 
filter  out 
to 
parents  and  guardians 
programmes  which  might 
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: 

have 

Whereas  the  Commission,  in  liaison  with 
Member  State  authorities,  should  conduct 
an  in-depth  analysis  of  these  issues  and 
possible  measures  involving  : 

- 

i 

z 
i 

the  requirement  for  new  television  sets 
to  be  equipped  with  a  technical  device 
enabling  parents  or  guardians  to  filter 
out certain programmes: 
the  setting  up  of  appropriate  rating 
systems: 
encouraging  family  viewing  policies: 
other 
measures 

educational 

awareness 

and 

with  a  view  to  presenting,  if  necessary 
before the deadline  laid down in Article  26, 
the  appropriate  proposals  for  legislative  or 
other measures. 

11 

through 

transmission 

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 
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 
should  be 
jurisdiction 
reaffirmed, 

their 

25a. 

to 

the 

achieve 

the  approach 

in  Directive 
Whereas 
89/552/EEC  and  this  Directive  has  been 
adopted 
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 
role  as  a  provider  of 
television's 
information, 
culture  and 
education, 
entertainment  and  the  need  to  safeguard 
pluralism  in  the  information  industry  and 
the media: 

to 

ensure 

Whereas  this  Directive  does  not  affect 
Member States' capacity to take measures in 
the  protection  of 
order 
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: 

26.  Whereas  Article  B  of  the  Treaty  on 
European  Union  states  that  one  of  the 
objectives  the  Union  shall  set  itself  is  to 
maintain 
"acquis 
full 
in 
communautaire", 

the 

Whereas  Article  B  of  the  Treaty  on 
European  Union  states  that  one  of  the 
objectives  the  Union  shall  set  itself  is  to 
maintain 
"acquis 
full 
in 
communautaire", 

the 

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 
follows: 

is  amended  as  Directive  89/552/EEC 

is  amended  as 

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 

(c)  point (d) is replaced by the following : 

"(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 
including 
services, 
immovable  property,  or rights and 
obligations, in return for payment. It 
does not include teleshopping;" 

or 

"(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 
trade,  business,  craft  or 
with 
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) 

(b)  the following  point (e) is added: 

(f)  the following point (g) is added : 

"(e) 

"(g) 

"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;" 

"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 
jurisdiction 
comply  with  the  rules  of  the  system  of 
law  applicable  to  broadcasts  intended 
for  the public  in that Member State. 

its 

Each Member State shall ensure that all 
television  broadcasts  transmitted  by 
broadcasters  under 
jurisdiction 
comply  with  the  rules  of  the  system  of 
law  applicable  to  broadcasts  intended 
for  the public  in that Member  State. 

its 

2.  The  broadcasters  under  the jurisdiction  2.  For  the  purpose  of  this  directive  the 
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. 

of  a Member State are those  established 
in the territory  of that Member State, in 
which 
fixed 
they  must  have  a 
establishment  and  actually  pursue  an 
economic  activity. 

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 
that  Member  State's 
are 
territory: 

taken 

in 

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 
the 
to  be  established 
deemed 
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: 

in 

(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. 

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 : 

3.  Broadcasters  established  outside  the 
territory of the Community shall also be 
under  the  jurisdiction  of  a  Member 
the 
State 
following  conditions: 

they  satisfy  one  of 

if 

16 

(a)  they  use  a  frequency  granted  by  that 

(a)  they  use  a  frequency  granted  by  that 

Member  State, 

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, 

(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. 

(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. 

intended  exclusively 

to 
This  Directive  shall  not  apply 
for 
broadcasts 
reception  in  third  countries,  and  which 
are not received directly or indirectly by 
the  public  in  one  or  more  Member 
States." 

5.  This  Directive  shall  not  apply 

intended  exclusively 

to 
for 
broadcasts 
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 

not 

and 

their 

Member  States  shall  ensure  freedom  of 
restrict 
reception 
shall 
retransmission  on 
territory  of 
television  broadcasts  from  other  Member 
States  for  reasons  which  fall  within  the 
fields  coordinated  by  this  Directive.  They 
take 
may, 
appropriate 
reception  and/or 
measures 
suspend 
television 
broadcasts  if  the  following  conditions  are 
fulfilled: 

to 
retransmission 

provisionally, 

restrict 

of 

not 

and 

their 

Member  States  shall  ensure  freedom  of 
reception 
restrict 
shall 
retransmission  on 
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  Article 
22 and/or  Article 22a; 

(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 
the  same 
least  two  prior 

broadcaster  has  infringed 
provision(s)  on  at 
occasions; 

(b)  during  the  previous  12  months,  the 
the  same 
least  two  prior 

broadcaster  has  infringed 
provisions)  on  at 
occasions; 

the  broadcaster  and 

(c)  the  Member  State  concerned  has 
notified 
the 
Commission  in  writing  of  the  alleged 
infringements  and  of  its  intention  to 
to  restrict  reception 
take  measures 
and/or  suspend  retransmission  should 
any  such infringement  occur  again; 

(c)  the  Member  State  concerned  has 
notified 
the 
the  broadcaster 
Commission  in  writing  of  the  alleged 
infringements  and  of  the  measures  it 
take  should  any  such 
intends 
infringement  occur  again; 

and 

to 

(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 
infringement 
persists. 

the  alleged 

(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 
infringement 
persists. 

the  alleged 

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 
is 
law.  If  it 
compatible  with  Community 
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  measure 

The Commission shall, within no more than 
two  months  following  notification  of  the 
measure taken by the  Member State,  take  a 
is 
decision  on  whether 
it 
compatible  with  Community 
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  measure 
law.  If 

in  the  first 
The  provision  referred  to 
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." 

is  without  prejudice 

in  the  first 
The  provision  referred  to 
paragraph 
the 
to 
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. 

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 
goals; 

language  policy 

the  taking  into  account  of  the  public 
interest in terms of television's role as a 
information,  education, 
provider  of 
culture  and  entertainment  and  the  need 
to 
the 
information  industry  and the  media. 

safeguard 

pluralism 

in 

19 

2.  Member  States  shall,  by  appropriate 
means, ensure, .within the framework of 
that 
their 
television 
legislation, 
broadcasters  under 
their  jurisdiction 
comply  with  the  provisions  of  this 
Directive. 

legislation, 

Member  States  shall,  by  appropriate 
means, ensure, within the framework of 
their 
television 
broadcasters  under  their  jurisdiction 
effectively  comply  with  the  provisions 
of this Directive. 

that 

to 

applicable 

Each Member State shall determine the 
television 
penalties 
broadcasting  organizations  under  their 
jurisdiction  who  do  not  comply  with 
the 
adopted 
provisions 
implementation of this Directive, which 
penalties  shall  be  sufficient  to  enforce 
compliance. 

for 

include 

The  measures 
the 
shall 
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." 

3.  Member  States  shall  also  provide  in 
their  legislation,  as  regards  television 
broadcasting  organizations  under  their 
the  possibility  of 
jurisdiction, 
invoking  interim  measures  aimed  at 
remedying  an 
the 
provisions of this Directive, if necessary 
broadcasting 
by 
licence." 

infringement  of 

suspending 

the 

for 

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, 
and 
advertising, 
games, 
teleshopping services. 

teletext 

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, 
and 
advertising, 
teleshopping services. 

teletext 

20 

or 

the 

and 

time  appointed 
teleshopping, 

In the case of channels which devote at 
least  80%  of  their  transmission  time, 
to 
excluding 
to 
advertising 
drama, 
cinematographic  works, 
documentaries 
animation, 
Member  States  shall  allow  television 
broadcasting  organizations  to  choose 
first 
between  complying  with 
paragraph  or  allocating  25%  of  their 
programming budget to European works 
within the meaning of Article  6. For the 
this  Directive, 
purposes 
the 
"programming  budget"  means 
acquiring, 
accounting 
cost 
and 
commissioning, 
co-producing 
all  those  programmes 
broadcast by the channel  in question in 
any  given year. 

producing 

the 

of 

of 

or 

the 

and 

time  appointed 
teleshopping, 

In the case of channels which devote at 
least  80%  of  their  transmission  time, 
to 
excluding 
advertising 
to 
drama, 
cinematographic  works, 
documentaries 
animation, 
Member  States  shall  allow  television 
broadcasting  organizations  to  choose 
first 
between  complying  with 
paragraph  or  allocating  25%  of  their 
programming budget to European works 
within the meaning of Article 6. For the 
this  Directive, 
purposes 
"programming  budget"  means 
the 
acquiring, 
accounting 
cost 
and 
commissioning, 
co-producing 
all  those  programmes 
broadcast by the channel  in question in 
any given year.  . 

producing 

the 

of 

of 

to 

referred 

proportions 

The 
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. 

to 

referred 

The  proportions 
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 
the 
than 
Member  States  are not  covered  by the 
provisions  of  this  Article  or  those  of 
Article 5. 

those  of 

Channels  broadcasting  entirely  in  a 
language  other 
the 
than 
Member  States  are  not  covered  by the 
provisions  of  this  Article or  those  of 
Article 5. 

those  of 

the 
Member  States 
shall  provide 
Commission  with  a  report  on 
the 
application  of this Article and Article 5 
every  two  years  from 
the  date  of 
adoption of this Directive. 

the 
Member  States 
shall  provide 
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 

the  Member  State 

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 
concerned. 
of 
Member  States 
the 
Commission  of  the  reasons  for  the 
failure  to  attain  those  proportions  and 
the  measures  they  are  taking  in  each 
case 
television 
broadcasting  organization  does  actually 
attain them. 

shall  notify 

to  ensure 

that  the 

the  Member  State 

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 
concerned. 
of 
Member  States 
the 
Commission  of  the  reasons  for  the 
failure  to  attain  those  proportions  and 
the  measures  they  are  taking  in  each 
case  to  ensure 
television 
broadcasting  organization  does  actually 
attain them. 

shall  notify 

that  the 

t he 

a nd 

S t a t es 

The  Commission shall  inform the other 
M e m b er 
European  Parliament  of  the  reports, 
which  shall  be  accompanied,  where 
appropriate,  by  an  opinion.  The 
Commission shall ensure the application 
of 
in 
this  Article  and  Article  5 
accordance  with  the  provisions  of  the 
Treaty.  The  Commission  may  take 
account  in  its  opinion,  in  particular,  of 
to 
progress  achieved 
previous  years, 
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." 

the  share  of 

relation 

in 

t he 

a nd 

S t a t es 

The  Commission shall  inform the other 
M e m b er 
European Parliament  of  the  reports, 
which  shall  be  accompanied,  where 
appropriate,  by  an  opinion.  The 
Commission shall ensure the application 
of 
in 
this  Article  and  Article  5 
accordance  with  the  provisions  of  the 
Treaty.  The  Commission  may  take 
account  in  its  opinion,  in  particular,  of 
to 
progress  achieved 
previous  years, 
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." 

the  share  of 

relation 

in 

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, 
and 
games, 
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. 

teleshopping 

advertising, 

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, 
and 
games, 
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. 

teleshopping 

advertising, 

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." 

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: 

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 
following: 

is 

replaced  by 

the 

(b)  paragraph  3 
following: 

is 

replaced  by 

the 

'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 
to  be  European  works 
deemed 
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 
producers 
or  more 
established  outside  the  territory  of 
the Member States." 

one 

"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 
to  be  European  works 
deemed 
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 
producers 
or  more 
established  outside  the  territory  of 
the Member States." 

one 

(d)  in  paragraph  4, 

the  words  "and 
paragraph 3a" are added after  the words 
"within the meaning  of paragraph  1"; 

(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 

limits 

broadcasting 

Rightsholders  and broadcasters  shall  agree 
time 
for 
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: 

agreed 

otherwise 

between 
Unless 
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)  in  the  case  of  cinematographic  works 
co-produced bv the broadcaster." 

(b)  twelve  months 

for  pay-television 
services  other  than  those  referred  to 
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 
these 
jurisdiction  comply  with 
their 
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 

and 
teleshopping  spots  shall  remain  the 
exception. 

spots 

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 

advertisements 

"1.  Advertisements  and  teleshopping  shall 
be inserted between  other programmes. 
Provided  the  conditions  contained  in 
paragraph  2  to  5  of  this  Article  are 
and 
fulfilled, 
teleshopping  may  also  be 
inserted 
during  programmes  in  such  a  way  that 
the 
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." 

and  value  of 

integrity 

2.  In 

in 

consisting 

of 
programmes 
autonomous  parts,  or 
sports 
programmes  and  similarly  structured 
events  and  performances  comprising 
and 
intervals, 
teleshopping  shall  only  be 
inserted 
between the parts or  in the intervals." 

advertisements 

26 

"3.  The  transmission of  feature films may 
be  interrupted  once  for  each  complete 
further 
period  of  45  minutes.  A 
if 
interruption 
their 
is  allowed 
least  20 
scheduled  duration 
is  at 
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 
successive 
advertising break within the programme. 

each 

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) 
following  : 

is  replaced  by 

the 

offensive 

be 
philosophical  or political  beliefs;" 

religious, 

to 

"(c) 

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 
tobacco products shall be prohibited. 

teleshopping 
tobacco products shall be prohibited. 

for  cigarettes  and  other 

Article  14 

"Article 14 

Television  advertising  and teleshopping for  1.  Television  advertising  for  medicinal 
products 
treatment 
and  medical 
medicinal  products  and  medical  treatment 
available  only  on  prescription  in  the 
available  only  on  prescription 
the 
Member State within whose jurisdiction 
Member State within whose jurisdiction the 
the broadcaster falls shall be prohibited. 
broadcaster  falls  shall be prohibited." 

in 

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 

(b)  Points  (a)  to  (f)  are  replaced  by  the 

following: 

following: 

"(a) 

they  may  not be  aimed  specifically 
at  minors  or,  in  particular,  depict 
minors consuming such beverages; 

"(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 
enhanced  physical 

to 
alcohol 
performance  or to driving; 

(b)  they  shall  not  link  the  consumption  of 
physical 

enhanced 
alcohol 
performance  or to driving; 

to 

(c)  they shall not create the impression that 
the  consumption  of  alcohol  contributes 
towards social or sexual success; 

(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 
stimulant,  a  sedative  or  a  means  of 
resolving personal  conflicts; 

therapeutic  qualities  or  that  it  is  a 
stimulant,  a  sedative  or  a  means  of 
resolving personal conflicts; 

(e)  they  shall  not  encourage  immoderate 
consumption  of  alcohol  or  present 
abstinence  or moderation  in a negative 
light; 

(e)  they  shall  not  encourage  immoderate 
consumption  of  alcohol  or  present 
abstinence  or moderation  in  a negative 
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 

(a)  The introductory  words are replaced by 

the  following: 

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:" 

"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 

(b)  Points  (a)  to  (d)  are  replaced  by  the 

following: 

following: 

"(a) 

they shall not directly exhort minors 
to  buy  a  product  or  a  service  by 
exploiting 
inexperience  or 
credulity; 

their 

"(a) 

they shall not directly exhort minors 
to  buy  a  product  or  a  service  by 
exploiting 
inexperience  or 
credulity; 

their 

(b)  they shall not directly encourage minors 
to  persuade  their  parents  or  others  to 
purchase  the  goods  or  services  being 
advertised; 

(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) 
following: 

is 

replaced  by 

the  16. Article  17(2) 

is 

replaced  by 

the 

following: 

"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. 

Television  programmes  may  not  be 
sponsored  by  natural  or  legal  persons 
whose  principal 
the 
manufacture  or  sale of products, or the 
provision of services, the advertising of 
which  is prohibited  by Article  13." 

activity 

is 

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 
on 
prescription." 

available 

only 

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%. 

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. 

2.  The amount of spot advertising within a  2 
given clock hour shall not exceed 20%." 

The  amount  of  advertising  spots  and 
teleshopping  spots within a given clock 
hour  shall not exceed 20%. 

3.  For 

does 

the  purposes  of 

this  article, 
advertising 
include 
announcements made bv the broadcaster 
in 
own 
programmes." 

connection  with 

not 

its 

31 

18. The following  Articles  18a and  18b are 

18. The following  Article  18a is inserted  : 

inserted: 

"Article  18a 

"Article  18a 

to 

Windows  devoted 
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 
as 
teleshopping windows by optical and/or 
acoustic means." 

identified 

clearly 

be 

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. 

2.  Teleshopping  programmes  and  spots 
must  comply  with  the  provisions  of 
Council Directive [concerning consumer 
to  distance 
protection  with  regard 
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." 

O J N oL 

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." 

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. 

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 

"Article  22 

1.  Member  States  shall  take  appropriate  1, 

that 

to  ensure 

television 
measures 
broadcasts, 
trailers,  by 
including 
broadcasters  under  their jurisdiction  do 
not  include  programmes  which  might 
seriously  impair the physical,  mental  or 
in 
moral  development  of  minors, 
particular 
involve 
those 
pornography  or gratuitous  violence. 

that 

that 

to  ensure 

Member  States  shall  take  appropriate 
measures 
television 
broadcasts  by  broadcasters  under  their 
jurisdiction  do  not 
any 
programmes,  which  might  seriously 
impair  the  physical,  mental  or  moral 
development  of  minors,  in  particular 
those 
involve  pornography  or 
that 
gratuitous  violence. 

include 

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." 

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 
broadcasts. 
hear 
Furthermore,  when  such  programmes 
are  broadcast 
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. 

in  unencoded 

such 

see 

or 

24.  The following  Articles 22a and 22b are 

inserted: 

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. 

investigation  of 

2.  The  Commission  shall,  in  liaison  with 
the competent Member State authorities, 
carry  out  an 
the 
possible  advantages  and  drawbacks  of 
further  measures  with  a  view  to 
exercised  by 
facilitating  the  control 
parents 
the 
or 
programmes that minors may watch. 

guardians 

over 

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 

thereafter, 

two  years 

Not later than the end of the third year  after 
the  date  of  the  adoption  of  this  Directive 
and  every 
the 
Commission  shall  submit  to  the  European 
Parliament,  the  Council  and  the  Economic 
and  Social  Committee  a  report  on  the 
application  of 
if 
necessary,  make  further  proposals  to  adapt 
it to developments  in the field of television 
in  particular  in  the  light  of 
broadcasting, 
technological 
its 
developments 
adoption." 

this  Directive  and, 

since 

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 
the 
immediately 
shall 
Commission thereof. 

inform 

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 
the 
immediately 
shall 
Commission thereof. 

inform 

these 

When  Member  States  adopt  these 
shall  contain  a 
provisions, 
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. 

these 

When  Member  States  adopt  these 
shall  contain  a 
provisions, 
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. 

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 
its 
following 
twentieth  day 
publication  in  the  Official  Journal  of  the 
European Communities. 

that  of 

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

that  of 

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 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 

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 

"3 }