COMMON POSITION (EC) No 49/96 adopted by the Council on 8 July 1996 with a view to adopting Directive 96/.../EC of the European Parliament and of the Council 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: 1996-07-08
Institutions: Council of the European Union
Subjects: administrative cooperation, approximation of laws, audiovisual communications policy, broadcasting, television













EUR-Lex - 51996AG0911(09) - EN






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51996AG0911(09)

COMMON POSITION (EC) No 49/96 adopted by the Council on 8 July 1996 with a view to adopting Directive 96/.../EC of the European Parliament and of the Council 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  


Official Journal C 264 , 11/09/1996 P. 0052 





COMMON POSITION (EC) No 49/96 adopted by the Council on 8 July 1996 with a  view to adopting Directive 96/. . ./EC of the European Parliament and of the Council 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 (96/C 264/09) THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, Having regard to the Treaty establishing the European Community, and in particular Articles 57 (2)  and 66 thereof, Having regard to the proposal from the Commission (1), Having regard to the opinion of the Economic and Social Committee (2), Acting in accordance with the procedure referred to in Article 189b of the Treaty (3), (1) Whereas Council Directive 89/552/EEC (4) constitutes the legal framework for television  broadcasting in the internal market; (2) Whereas Article 26 of Directive 89/552/EEC states that the Commission shall, no later than the  end of the fifth year after the date of adoption of the Directive, submit to the European  Parliament, the Council 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; (3) Whereas the application of Directive 89/552/EEC and the report on its application have revealed  the need to clarify certain definitions or obligations on Member States under this Directive; (4) Whereas the Commission, in its communication of 19 July 1994 entitled 'Europe's way to the  information society: an action plan`, underlined the importance of a regulatory framework applying  to the content of audiovisual services which would help to safeguard the free movement of such  services in the Community and be responsive to the opportunities for growth in this sector opened  up by new technologies, while at the same time taking into account the specific nature, in  particular the cultural and sociological impact, of audiovisual programmes, whatever their mode of  transmission; (5) Whereas the Council welcomed this action plan at its meeting on 28 September 1994 and stressed  the need to improve the competitiveness of the European audiovisual industry; (6) 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  movement of services; (7) Whereas the Heads of State and Government meeting at the European Council in Essen on 9 and 10  December 1994 called on the Commission to present a proposal for a revision of Directive 89/552/EEC  before their next meeting; (8) Whereas the application of Directive 89/552/EEC has revealed the need to clarify the concept of  jurisdiction as applied specifically to the audiovisual sector; whereas, in view of the case law of  the Court of Justice of the European Communities, the establishment criterion should be made the  principal criterion determining the jurisdiction of a particular Member State; (9) 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` (5), involves the actual pursuit of an  economic activity through a fixed establishment for an indefinite period; (10) Whereas the establishment of a television broadcasting organization may be determined by a  series of practical criteria such as the location of the head office of the provider of services,  the place where decisions on programming policy are usually taken, the place where the programme to  be broadcast to the public is finally mixed and processed, and the place where a significant  proportion of the workforce required for the pursuit of the television broadcasting activity is  located; (11) Whereas the fixing of a series of material criteria is designed to determine by 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 this 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, it is appropriate to mention the criterion of establishment within the meaning of  Articles 52 and following of the Treaty establishing the European Community as the final criterion  determining the competence of a Member State; (12) Whereas the Court of Justice has constantly held (1) 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; (13) Whereas Article F (2) of the Treaty on European Union stipulates that the Union shall respect  fundamental rights as guaranteed by the European Convention for the Protection of Human Rights and  Fundamental Freedoms as general principles of Community law; whereas any measure aimed at  restricting the reception and/or suspending the retransmission of television broadcasts taken under  Article 2a of Directive 89/552/EEC as amended by this Directive must be compatible with such  principles; (14) Whereas it is necessary to ensure the effective application of the provisions of Directive  89/552/EEC as amended by this Directive throughout the Community in order to preserve free and fair  competition between firms in the same industry; (15) Whereas directly affected third parties, including nationals of other Member States, must be  able to assert their rights, according to national law, in the competent judicial or other  authorities of the Member State with jurisdiction over the television broadcasting organization  that may be failing to comply with the national provisions arising out of the application of  Directive 89/552/EEC as amended by this Directive; (16) Whereas Member States are free to take whatever measures they deem appropriate with regard to  broadcasts coming from third countries, and which do not satisfy the conditions laid down in  Article 2 of Directive 89/552/EEC as amended by this Directive, provided they comply with Community  law and the international obligations of the Community; (17) Whereas in order to eliminate the obstacles arising from differences in national legislation  on the promotion of European works, Directive 89/552/EEC as amended by this Directive, contains  provisions aimed at harmonizing such legislation; whereas those provisions which, in general,  permit the liberalization of trade must contain provisions harmonizing the conditions of  competition; (18) Whereas, moreover, Article 128 (4) of the Treaty establishing the European Community requires  the Community to take cultural aspects into account in its action under other provisions of the  Treaty; (19) Whereas the Green Paper on 'Strategy options to strengthen the European programme industry in  the context of the audiovisual policy of the European Union`, adopted by the Commission on 7 April  1994, puts forward inter alia measures to promote European works in order to further the  development of the sector; whereas the MEDIA II programme, which seeks to promote training,  development and distribution in the audiovisual sector, is also designed to enable the production  of European works to be developed; (20) Whereas broadcasting organizations, programme makers, producers, authors and other experts  should be encouraged to develop more detailed concepts and strategies aimed at developing European  audiovisual fiction films that are addressed to an international audience; (21) Whereas, in addition to the considerations cited above, it is necessary to create conditions  for improving the competitiveness of the programme industry; whereas the communication on the  application of Articles 4 and 5 of Directive 89/552/EEC, adopted by the Commission on 3 March 1994  pursuant to Article 4 (3) of that Directive, draws the conclusion that measures to promote European  works can contribute to such an improvement; (22) Whereas the proportions of European works must be achieved taking economic realities into  account; whereas, therefore, a progressive system for achieving this objective is required; (23) Whereas the question of specific time scales for each type of television showing of  cinematographic works is primarily a matter to be settled by means of agreements between the  interested parties or professionals concerned; whereas, however, in the absence of such agreements  a schedule for the showing of such works should be drawn up; (24) Whereas advertising for medical products for human use is subject to the provisions of  Directive 92/28/EEC (1); (25) Whereas daily transmission time allotted to announcements made by the broadcaster in  connection with its own programmes and ancillary products directly derived from these, 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; (26) Whereas, in order to avoid distortions of competition, this derogation is limited to  announcements concerning products that fulfil the dual condition of being both ancillary to and  directly derived from the programmes concerned; whereas the term ancillary refers to products  intended specifically to allow the viewing public to fully benefit from or to interact with these  programmes; (27) 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 by putting in place appropriate standards regulating the form and content of such  broadcasts; (28) Whereas it is important for the competent national authorities, in monitoring the  implementation of the relevant provisions, to be able to distinguish, as regards channels not  exclusively devoted to teleshopping, between transmission time devoted to teleshopping spots,  advertising spots and other forms of advertising on the one hand and, to the other, transmission  time devoted to teleshopping windows; whereas it is consequently necessary and sufficient that each  window be clearly identified by optical and acoustic means at least at the beginning and the end of  the window; (29) Whereas Directive 89/552/EEC as amended by this Directive applies to channels exclusively  devoted to teleshopping or self-promotion, without conventional programme elements such as news,  sports, films, documentaries and drama, for the sole purposes of these Directives and without  prejudice to their inclusion in the scope of other Community instruments; (30) Whereas it is necessary to clarify that self-promotional activities are a particular form of  advertising where the broadcaster promotes its own products, services, programmes or channels;  whereas, in particular, trailers consisting of extracts from programmes should be treated as  programmes; whereas self-promotion is a new and relatively unknown phenomenon and provisions  concerning it may therefore be particularly subject to review in future examinations of this  Directive; (31) 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; (32) Whereas none of the provisions of this Directive that concern the protection of minors and  public order require that the measures in question must necessarily be implemented through the  prior control of television broadcasts; (33) Whereas an investigation by the Commission, in liaison with the competent Member State  authorities, of the possible advantages and drawbacks of further measures with a view to  facilitating the control exercised by parents or guardians over the programmes that minors may  watch, may involve, inter alia: - 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 educational and awareness measures, - appropriate feasibility studies, - taking into account experience gained in this field in and beyond Europe as well as the views of  interested parties such as broadcasters, producers, educationalists, media specialists and relevant  associations, with a view to presenting, if necessary before the deadline laid down in Article 26, appropriate  proposals for legislative or other measures; (34) Whereas it is appropriate to amend Directive 89/552/EEC to allow natural or legal persons  whose activities include the manufacture or the sale of medicinal products and medical treatment  available only on prescription to sponsor television programmes provided that such sponsorship does  not circumvent the prohibition of television advertising for medicinal products and medical  treatment only available on prescription; (35) Whereas the approach in Directive 89/552/EEC and this Directive has been adopted to achieve  the essential harmonization necessary and sufficient to ensure the free movement of television  broadcasts in the Community; whereas Member States remain free to apply to broadcasters under their  jurisdiction more detailed or stricter rules in the fields coordinated by this Directive,  including, inter alia, rules concerning the achievement of language policy goals and of the  protection of the public interest in terms of television's role as a provider of information,  education, culture and entertainment and the need to safeguard pluralism in the information  industry and the media and the protection of competition with a view to avoiding the abuse of  dominant positions and/or the establishment or strengthening of dominant positions; whereas such  rules must be compatible with Community law; (36) Whereas Article B of the Treaty on European Union states that one of the objectives the Union  shall set itself is to maintain in full the 'acquis communautaire`, HAVE ADOPTED THIS DIRECTIVE: Article 1 Directive 89/552/EEC is hereby amended as follows: 1. Article 1 shall be amended as follows: (a) the following new point (b) shall be inserted: '(b) "broadcaster" means the natural or legal person who has editorial responsibility for  composition of schedules of television programmes within the meaning of (a) and who transmits them  or has them transmitted by third parties;`; (b) the former point (b) shall become point (c) and shall read as follows: '(c) "television advertising" means any form of announcement broadcast whether in return for  payment to for similar consideration or broadcast for self-promotional purposes by a public or  private undertaking in connection with a trade, business, craft or profession in order to promote  the supply of goods or services, including immovable property, rights and obligations, in return  for payment;`; (c) the former points (c) and (d) shall become points (d) and (e); (d) the following point shall be added: '(f) "teleshopping" means direct offers broadcast to the public with a view to the supply of goods  or services, including immovable property, rights and obligations, in return for payment.`. 2. Article 2 shall be replaced by the following: 'Article 2 1. Each Member State shall ensure that all television broadcasts transmitted by broadcasters under  its jurisdiction comply with the rules of the system of law applicable to broadcasts intended for  the public in that Member State. 2. For the purpose of this Directive the broadcasters under the jurisdiction of a Member State  are: - those established in that Member State according to paragraph 3, - those to whom paragraph 4 applies. 3. For the purpose of this Directive, a broadcaster shall be deemed to be established in a Member  State in the following cases: (a) the broadcaster has its head office in that Member State and the editorial decisions about  programme schedules are taken in that Member State; (b) if a broadcaster has its head office in one Member State but editorial decisions on programme  schedules are taken in another Member State, it shall be deemed to be established in the Member  State where a significant part of the workforce involved in the pursuit of the television  broadcasting activity operates; if a significant part of the workforce involved in the pursuit of  the television broadcasting activity operates in each of those Member States, the broadcaster shall  be deemed to be established in the Member State where it has its head office; if a significant part  of the workforce involved in the pursuit of the television broadcasting activity operates in  neither of those Member States, the broadcaster shall be deemed to be established in the Member  State where it first began broadcasting in accordance with the system of law of that Member State,  provided that it maintains a stable and effective link with the economy of that Member State; (c) if a broadcaster has its head office in a Member State but decisions on programme schedules are  taken in a third country, 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 to whom the provisions of paragraph 3 are not applicable are deemed to be under the  jurisdiction of a Member State in the following cases: (a) they use a frequency granted by that Member State; (b) although they do not use a frequency granted by a Member State they do use a satellite capacity  appertaining to that Member State; (c) although they use neither a frequency granted by a Member State nor a satellite capacity  appertaining to a Member State they do use a satellite up-link situated in that Member State. 5. If the question as to which Member State has jurisdiction cannot be determined according to  paragraphs 3 and 4, the competent Member State shall be that in which the broadcaster is  established within the meaning of Articles 52 and following of the Treaty establishing the European  Community. 6. This Directive shall not apply to broadcasts intended exclusively for reception in third  countries, and which are not received directly or indirectly by the public in one or more Member  States.`. 3. The following Article shall be inserted: 'Article 2a 1. Member States shall ensure freedom of reception and shall not restrict retransmissions on their  territory of television broadcasts from other Member States for reasons which fall within the  fields coordinated by this Directive. 2. Member States may, provisionally, derogate from paragraph 1 if the following conditions are  fulfilled: (a) a television broadcast coming from another Member State manifestly, seriously and gravely  infringes Article 22 (1) or (2) and/or Article 22a; (b) during the previous 12 months, the broadcaster has infringed the provision(s) referred to in  (a) on at least two prior occasions; (c) the Member State concerned has notified the broadcaster and the Commission in writing of the  alleged infringements and of the measures it intends to take should any such infringement occur  again; (d) consultations with the transmitting Member State and the Commission have not produced an  amicable settlement within 15 days of the notification provided for in (c), and the alleged  infringement persists. The Commission shall, within no more than two months following notification of the measures taken  by the Member State, take a decision on whether the measures are compatible with Community law. If  it decides that they are not, the Member State will be required to put an end to the measures in  question as a matter of urgency. 3. Paragraph 2 shall be without prejudice to the application of any procedure, remedy or sanction  to the infringements in question in the Member State which has jurisdiction over the broadcaster  concerned.`. 4. Article 3 shall be replaced by the following: 'Article 3 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. 2. Member States shall, by appropriate means, ensure, within the framework of their legislation,  that television broadcasters under their jurisdiction effectively comply with the provisions of  this Directive. 3. The measures shall include the appropriate procedures for third parties directly affected,  including nationals of other Member States, to apply to the competent judicial or other authorities  to seek effective compliance according to national provisions.`. 5. In Article 4 (1), the words 'and teletext services` shall be replaced by the words 'teletext  services and teleshopping`. 6. In Article 5, the words 'and teletext services` shall be replaced by the words 'teletext  services and teleshopping`. 7. Article 6 shall be amended as follows: (a) paragraph 1 (a) shall be replaced by the following: '(a) works originating from Member States;`; (b) in paragraph 1, the following subparagraph shall be added: 'Application of the provisions of (b) and (c) shall be conditional on works originating from Member  States not being the subject of discriminatory measures in the third countries concerned.`; (c) paragraph 3 shall be replaced by the following: '3. The works referred to in paragraph 1 (c) 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.`; (d) paragraph 4 shall become paragraph 5 and the following paragraph shall be inserted: '4. Works that are not European works within the meaning of paragraph 1 but that are produced  within the framework of bilateral co-production treaties concluded between Member States and third  countries shall be deemed to be European works provided that the Community co-producers supply a  majority share of the total cost of the production and that the production is not controlled by one  or more producers established outside the territory of the Member States.`; (e) in the new paragraph 5, the words 'paragraph 1` shall be replaced by the words 'paragraphs 1  and 4`. 8. Article 7 shall be replaced by the following: 'Article 7 1. Unless otherwise agreed between rights holders and broadcasters, the latter shall not broadcast  any cinematographic work until 18 months have elapsed since the work was first shown in cinemas in  one of the Member States. 2. The period referred to in paragraph 1 shall be reduced to 12 months: (a) for pay-per-view and pay-television channels; (b) in the case of cinematographic works co-produced by the broadcaster.`. 9. Article 8 shall be deleted. 10. Article 9 shall be replaced by the following: 'Article 9 This Chapter shall not apply to television broadcasts intended for local audiencies and that do not  form part of a national network.`. 11. The title of Chapter IV shall be replaced by the following: 'Television advertising, sponsorship and teleshopping`. 12. Article 10 shall be 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. 3. Advertising and teleshopping shall not use subliminal techniques. 4. Surreptitious advertising and teleshopping shall be prohibited.`. 13. Article 11 shall be replaced by the following: 'Article 11 1. Advertising and teleshopping spots shall be inserted between programmes. Provided the conditions  contained in paragraphs 2 to 5 are fulfilled, advertising and teleshopping spots may also be  inserted during programmes in such a way that the integrity and value of the programme, taking into  account natural breaks in and the duration and nature of the programme, and the rights of the  rights holders are not prejudiced. 2. In programmes consisting of autonomous parts, or in sports programmes and similarly structured  events and performances comprising intervals, advertising and teleshopping spots shall only be  inserted between the parts or in the intervals. 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 than 45 minutes, may be interrupted once for each period of 45 minutes.  A further interruption shall be 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 advertising or  teleshopping spots, a period of at least 20 minutes shall elapse between each successive  advertising break within the programme. 5. Advertising 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,  when their scheduled duration is less than 30 minutes shall not be interrupted by advertising or by  teleshopping. If their scheduled duration is of 30 minutes or longer, the provisions of the  previous paragraphs shall apply.`. 14. In Article 12, the introductory words shall be replaced by the following: 'Television advertising and teleshopping shall not:` 15. Article 13 shall be replaced by the following: 'Article 13 All forms of television advertising and teleshopping for cigarettes and other tobacco products  shall be prohibited.`. 16. In Article 14, the present text shall become paragraph 1 and the following paragraph shall be  added: '2. Teleshopping for medicinal products which are subject to a marketing authorization within the  meaning of Council Directive 65/65/EEC of 26 January 1965 on the approximation of provisions laid  down by law, regulation or administrative action relating to medicinal products (*), as well as  teleshopping for medical treatment, shall be prohibited. (*) OJ No 22, 9. 2. 1965, p. 369. Directive as last amended by Directive 93/39/EEC (OJ No L 214,  24. 8. 1993, p. 22).`. 17. In Article 15, the introductory words shall be replaced by the following: 'Television advertising and teleshopping for alcoholic beverages shall comply with the following  criteria:`. 18. In Article 16, the present text shall become paragraph 1 and the following paragraph shall be  added: '2. Teleshopping shall comply with the requirements referred to in paragraph 1 and, in addition,  shall not exhort minors to contract for the sale or rental of goods and services.`. 19. Article 17 shall be amended as follows: (a) paragraph 2 shall be replaced by the following: '2. Television programmes may not be sponsored by undertakings whose principal activity is the  manufacture or sale of cigarettes and other tobacco products.`. (b) paragraph 3 shall become paragraph 4 and the following paragraph shall be inserted: '3. 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 but may not promote specific medical products or medical treatments only available on  prescription in the Member State within whose jurisdiction the broadcaster falls.`. 20. Article 18 shall be replaced by the following: 'Article 18 1. The amount of transmission time of teleshopping spots, advertising spots and other forms of  advertising, with the exception of teleshopping windows within the meaning 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 advertising spots and teleshopping spots within a given clock hour shall not  exceed 20 %. 3. For the purposes of this Article, advertising does not include: - announcements made by the broadcaster in connection with its own programmes and ancillary  products directly derived from those programmes, - public service announcements and charity appeals broadcast free of charge.`. 21. The following Article shall be inserted: 'Article 18a 1. Windows devoted to teleshopping broadcast by a channel not exclusively devoted to teleshopping  shall be of a minimum uninterrupted duration of 15 minutes. 2. The maximum number of windows per day shall be eight. Their overall duration shall not exceed  three hours per day. They must be clearly identified as teleshopping windows by optical and  acoustic means.`. 22. Article 19 shall be replaced by the following: 'Article 19 Chapters I, II, IV, V, VI, VIa and VII shall apply mutatis mutandis to channels exclusively devoted  to teleshopping. Advertising on such channels shall be allowed within the daily limits established  by Article 18 (1). Article 18 (2) shall not apply.`. 23. The following Article shall be inserted: 'Article 19a Chapters I, II, IV, V, VI, VIa and VII shall apply mutatis mutandis to channels exclusively devoted  to self-promotion. Other forms of advertising on such channels shall be allowed within the limits  established by Article 18 (1) and (2). This provision in particular shall be subject to review in  accordance with Article 26.`. 24. Article 20 shall be replaced by the following: '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 18a in respect  of broadcasts intended solely for the national territory which cannot be received, directly or  indirectly by the public, in one or more other Member States.`. 25. Article 21 shall be deleted. 26. The title of Chapter V shall be replaced by the following: 'Protection of minors and public order`. 27. Article 22 shall be replaced by the following: 'Article 22 1. Member States shall take appropriate measures to ensure that television broadcasts by  broadcasters under their jurisdiction do not include any programmes which might seriously impair  the physical, mental or moral development of minors, in particular those that involve pornography  or gratuitous violence. 2. The measures provided for in paragraph 1 shall also extend to other programmes which are likely  to impair the physical, mental or moral development of minors, except where it is ensured, by  selecting the time of the broadcast or by any technical measure, that minors in the area of  transmission will not normally hear or see such broadcast. 3. Furthermore, when such programmes are broadcast in unencoded form Member States shall ensure  that they are preceded by an acoustic warning or are identified by the presence of a visual symbol  throughout their duration.`. 28. The following Article shall be inserted: 'Article 22a Member States shall ensure that broadcasts do not contain any incitement to hatred on grounds of  race, sex, religion or nationality.`. 29. The following Article shall be inserted: 'Article 22b 1. The Commission shall attach particular importance to application of this Chapter in the report  provided for in Article 26. 2. The Commission shall, in liaison with the competent Member State authorities, carry out an  investigation of the possible advantages and drawbacks of further measures with a view to  facilitating the control exercised by parents or guardians over the programmes that minors may  watch.`. 30. Article 23 (1) shall be 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 assertion of incorrect  facts 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 or equivalent remedies is not hindered  by the imposition of unreasonable terms or conditions. The reply shall be transmitted within a  reasonable time subsequent to the request being substantiated and at a time and in a manner  appropriate to the broadcast to which the request refers.`. 31. After Article 23, the following new Chapter VIa shall be inserted: 'CHAPTER VIa Contact Committee Article 23a 1. A contact Committee shall be set up under the aegis of the Commission. It shall be composed of  representatives of the competent authorities of the Member States. It shall be chaired by a  representative of the Commission and meet either on his initiative or at the request of the  delegation of a Member State. 2. The tasks of this Committee shall be: (a) to facilitate effective implementation of this Directive through regular consultation on any  practical problems arising from its application, and particularly from the application of Article  2, as well as on any other matters on which exchanges of views are deemed useful; (b) to be the forum for an exchange of views on what matters should be dealt with in the reports  which Member States must submit pursuant to Article 4 (3), on the methodology of these, on the  terms of reference for the independent study referred to in Article 25a, on the evaluation of  tenders for this and on the study itself; (c) to discuss the outcome of regular consultations which the Commission holds with representatives  of broadcasting organizations, producers, consumers, manufacturers, service providers and trade  unions; (d) to facilitate the exchange of information between the Member States and the Commission on the  situation and the development of regulatory activities regarding television broadcasting services,  taking account of the Community's audiovisual policy, as well as relevant developments in the  technical field; (e) to examine any development arising in the sector on which an exchange of views appears  useful.`. 32. The following Article shall be inserted: 'Article 25a A further review as provided for in Article 4 (4) shall take place before . . . (*). It shall take  account of an independent study on the impact of the measures in question at both Community and  national level. (*) Five years after the date of adoption of this Directive.`. 33. Article 26 shall be replaced by the following: 'Article 26 Not later than 31 December 19. . . (*) and every two years thereafter, the Commission shall submit  to the European Parliament, the Council and the Economic and Social Committee a report on the  application of this Directive as amended and, if necessary, make further proposals to adapt it to  developments in the field of television broadcasting, in particular in the light of recent  technological developments. (*) End of the third year after the date of adoption of this Directive.`. Article 2 1. Member States shall bring into force the laws, regulations and administrative provisions  necessary to comply with this Directive not later than . . . (1). They shall immediately inform the  Commission thereof. When Member States adopt these measures, they shall contain a reference to this Directive or be  accompanied by such reference on the occasion of their official publication. The methods of making  such reference shall be laid down 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. Article 3 This Directive shall enter into force on the date of its publication in the Official Journal of the  European Communities. Article 4 This Directive is addressed to the Member States. Done at Brussels, . . . For the Parliament The President For the Council The President (1) OJ No C 185, 19. 7. 1995, p. 4. (2) OJ No C 301, 13. 11. 1995, p. 35. (3) Opinion of the European Parliament of 14 February 1996 (OJ No C 65, 4. 3. 1996, p. 113).  Council common position of 8 July 1996 (not yet published in the Official Journal) and Decision of  the European Parliament of . . . (not yet published in the Official Journal). (4) OJ No L 298, 17. 10. 1989, p. 23. (5) Case C-221/89, Queen v. Secretary of State for Transport, ex parte Factortame, (1991) ECR  I-3905, paragraph 20. (1) See, in particular, the adjustments in Case 33/74, Van Binsbergen v. Bestuur van de  Bedrijfsvereniging, (1974) ECR 1299 and in Case C-23/93, TV 10 SA v. Commissariaat voor de Media,  (1994) ECR I-4795. (1) OJ No L 113, 30. 4. 1992, p. 13. (1) 18 months after the date of adoption of this Directive. STATEMENT OF THE COUNCIL'S REASONS I. INTRODUCTION 1. On 31 May 1995 the Commission  submitted a proposal for a Directive amending 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 broadcasting activities. 2. The European Parliament and the Economic and Social Committee delivered their opinions on 14  February 1996 and on 13 September 1995 respectively. 3. On 10 May 1996 the Commission submitted an amended proposal in the light of the European  Parliament's opinion. 4. On 8 July 1996 the Council adopted its common position in accordance with Article 189b of the  Treaty. The Council and/or Commission statements entered in the minutes are annexed to this  statement of reasons. II. OBJECTIVE OF THE PROPOSAL The purpose of the proposal is, in accordance with Article 26 of  Directive 89/552/EEC, to make certain amendments to that Directive in order to bring it up to date  and improve its operation, so as to provide a stable legal environment conducive to the development  of the audiovisual industry in the European Union. 1. General comments 1.1. In its common position, the Council supports the main objectives pursued  by the Commission in its proposal for a Directive. The common position establishes a system making  for better implementation of the 1989 Directive, with the introduction of provisions bringing  greater legal certainty in the European audiovisual area, and it represents a dynamic instrument  allowing for technological developments in television broadcasting. 1.2. At the Council meeting on 11 June 1996, some amendments were made to the Commission's amended  proposal. While preferring its proposed approach in the case of some provisions, the Commission  went along with the Council's common position so that the decision-making process could be taken  forward and the European Parliament could consider the common position at its second reading. 1.3. The common position involves some significant changes compared with the original Commission  proposal, in particular: (a) Criteria for determining jurisdiction (Article 2, appearing in Article 1 (2) of the common  position) In accordance with the amended Commission proposal, the common position establishes an exhaustive  system for assigning a Member State jurisdiction in respect of any given broadcaster. Article 2 (5)  adds a final element of legal certainty for the purposes of determining the Member State with  jurisdiction. (b) Promotion of European works (Articles 4 and 5) The Council decided to retain the system for promoting European works introduced by Directive  89/552/EEC, taking the view that this leaves Member States an advisable degree of flexibility,  while ensuring the desired promotion of European audiovisual works. The Council also set up a  contact Committee to keep a very close watch on the implementation of the Directive, particularly  as a forum for debate on matters relating to Articles 4 and 5 (see Article 1 (31) of the common  position). The clause in Article 4 (4) and in Article 1 (32) of the common position will enable Parliament and  the Council to review such matters on the basis of a report from the Commission and taking into  account an independent study on the impact of the measures in question at both Community and  national level. (c) Protection of minors as regards teleshopping (Article 16, appearing in Article 1 (18) of the  common position) The common position strengthens the protection of minors as regards teleshopping by stipulating  that teleshopping must not exhort minors to contract for the sale or rental of goods and services. (d) Maximum transmission time for advertising (Article 18 (3), appearing in Article 1 (20) of the  common position)The common position excludes from the maximum daily transmission time for advertising the  announcements made by the broadcaster in connection with its own programmes and ancillary products  directly derived from those programmes and also public service announcements and charity appeals. (e) Teleshopping windows (Article 18a, appearing in Article 1 (21) of the common position) The common position stipulates a maximum of eight teleshopping windows a day. (f) Channels exclusively devoted to teleshopping (Article 19, appearing in Article 1 (22) of the  common position) The rules governing teleshopping channels have been clarified. (g) Channels exclusively devoted to self-promotion (Articles 1 (c) and 19a, appearing in Article 1  (1) (b) and (23) respectively of the common position) Self-promotion is treated in a similar way to television advertising and the rules governing  self-promotion channels have been clarified. (h) Protection of minors (Article 22b, appearing in Article 1 (29) of the common position) The means of protecting minors against programmes which might be harmful to them have been  strengthened and the Commission is instructed to carry out an investigation, in liaison with Member  States, into further ways of protecting minors, in particular by technological means. (i) Right of reply (Article 23 (1), appearing in Article 1 (30) of the common position) Arrangements for exercising the right of reply have been improved. 2. European Parliament amendments 2.1. Amendments accepted by the Commission In its amended proposal, the Commission took on board 30 European Parliament amendments, five of  them in full and 25 in part or in a different wording. 2.2. Amendments accepted by the Council The Council accepted 34 of the European Parliament's amendments in whole, in part or in a different  wording. The amendments in question are as follows: 1, 2, 6, 7, 10, 11, 12, 15, 19, 20, 21, 22, 23, 24, 25, 26, 28, 36, 37, 38, 39, 40, 41, 42, 44, 45,  46, 51, 57, 58, 74, 75, 76 and 88. It has included the vast majority of the European Parliament amendments accepted by the Commission  as well as a number of amendments rejected by the Commission. 2.3. European Parliament amendments not accepted by the Council - Amendments 3, 18 and 77 New Services The Council did not see fit to extend the scope of the Directive to include certain new audiovisual  services. These need to be carefully considered and the Council would like to see a debate on the  matter at Community level, on the basis of a Green Paper to be submitted by the Commission at an  early opportunity. Nor did it agree to the proposed definition of a 'television programme`, which was accepted by the  Commission. - Amendments 4 and 5 European guarantee fund and possible Directive on ownership arrangements for the mass media The Council did not think it appropriate at present to refer in legislation either to an instrument  to guarantee funds for audiovisual production, while the proposal for a Decision on the matter is  still under discussion at the Council, or to a possible Directive on ownership arrangements for the  mass media, which has not yet been submitted. - Amendment 8 Obligation to support national and local production The Council would refer to the provisions of Article 3 (1), under which '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`. The Council took the view, however, that the amendment as worded would be inconsistent with the  wording of Article 4. - Amendments 13 and 68 - Compliance by advertising and teleshopping programmes and spots with the provisions of Council  Directives on distance contracts and misleading advertising - Need for a public service The Council did not regard these amendments as coming within the scope of the Directive. - Amendments 29, 30, 31, 32, 33, 34 and 59 Promotion of European works See 1 (3) (b) above. - Amendment 35 Definition of an independent broadcaster The Council felt that the proposed definition, accepted by the Commission in recital 21a, did not  suitably cover situations in the various Member States. - Amendment 36 Definition of a European work (co-productions with third countries) The Council has adjusted the definition of a European work so as to provide greater encouragement  for co-productions with European third countries. Co-productions are to be made with European third  countries with which the Community has concluded agreements relating to the audiovisual sector. - Amendments 43, 47, 48 and 50 Legal rules applicable to advertising and to teleshopping programmes and channels - in the case of Amendment 43, the Council could not agree to go beyond the present wording and add  'philosophical` beliefs, an amendment accepted by the Commission, - in the case of Amendments 47, 48 and 50, the Council preferred to establish a legal framework for  teleshopping aligned in part on the content and presentation rules applicable to advertising; it  was more amenable in the case of teleshopping for certain products (Article 14) and more flexible  as regards the presentation of teleshopping windows (Article 18a) and teleshopping channels  (Article 19). - Amendments 102, 52, 55 and 62 Protection of minors With regard to television advertising and teleshopping directed at minors, the Council regarded the  wording in the common position as providing maximum protection for the audience in question without  imposing on television channels requirements such as those involved in Amendment 52. On Amendments 55 and 62, see 1 (3) (h) above. - Amendment 56 Tightening of provisions to prevent any incitement to hatred on grounds of race, sex, religion or  nationality (Article 22a) The Council considered the wording which it has opted for to be better suited to the requirement of  avoiding any incitement to hatred. ANNEX Common position with a view to adopting the Directive amending Directive  89/552/EEC Statements by the Council and/or the Commission Re Article 1 (a) In regard to new audiovisual services (point to point), the Commission states that it intends to  present shortly a green paper which will deal in particular with this question. Re Article 2a The Council and the Commission state that this Directive does not affect Member States' right to  take measures, in accordance with Community law, in situations where physical or legal persons,  established in one Member State, have recourse to broadcasters established in other Member States  whose broadcasts are aimed entirely or principally at the first mentioned Member State with the  purpose of circumventing that State's national rules on advertising adopted in conformity with  Community law, in particular those concerning consumer protection. Re Article 6 (1) (d) The Commission confirms that, in its view, new subparagraph (d) does not imply any additional  powers for it to deal directly with, or act against, third countries. Re Article 15 The Council and the Commission note that teleshopping for alcoholic beverages may increase their  consumption and thus cause social and health risks. The Council and the Commission recognize that  such risks could be particularly high in the Member States which have recently taken significant  steps to liberalize provisions relating to the supply of alcoholic beverages. The Council and the  Commission thus acknowledge that the criteria described in Article 15 are of special importance for  those Member States and that, therefore, this fact will be taken into account in their application.  Moreover, the question will be reviewed in accordance with the relevant provisions of the  Directive. Re Article 16 The Commission states that it will make a study of the impact of television advertising and  teleshopping on minors, with a view to re-examination of the subject in the next revision of the  Directive. Re Article 23a (2) (a) The Commission states that the tasks ascribed to the contact Committee by Article 23a (2) (a)  include in particular taking into account efforts for investment in the production of European  works made by broadcasters for whom it would be difficult to achieve a majority proportion of  broadcasting time. In referring, in Article 23a (2) (a), to practical problems arising out of the application of  Article 2, the Council wishes the Committee to organize consultations on the question described in  recital 12.