COMMUNICATION FROM THE COMMISSION TO THE COUNCIL AND THE EUROPEAN PARLIAMENT on the application of Articles 4 and 5 of Directive 89/552/EEC "Television without Frontiers"
Date: 1996-07-15
Institutions: European Commission
Subjects: European television, audiovisual programme, broadcasting, free movement of programmes

COMMISSION  OF THE  EUROPEAN  COMMUNITIES 

Brussels,  15.07.1996 
COM(96)302  final 

COMMUNICATION  FROM THE COMMISSION 
TO THE COUNCIL  AND THE EUROPEAN PARLIAMENT 
on the  application  of Articles  4 and 5 
of Directive  89/552/EEC 

"Television without Frontiers" 

EXECUTIVE SUMMARY 

This is the second monitoring report on the implementation  of Article 4 (European works) and Article 

5 (independently  produced European works) of the  1989 "Television  without  Frontiers" Directive.  It 

covers the years  1993 and  1994.  As with the previous report,  it is based on national reports  provided 

by  each  Member  State  as  regards  the  broadcasters  under  its jurisdiction. 

The  conclusions  of  the  report  are  as  follows: 

* 

There  is a marked  improvement  in the quality  of reporting  by Member  States.  A  number  of 

methological  difficulties  have  been  ironed  out  as compared  to  the  previous  period. 

* 

* 

In  quantitative  terms, the  data  is  comprehensive. 

The  report  confirms  that  all  Member  States  have  transposed  Articles  4  and  5,  although  the 

flexible  wording  of  these  provisions  has  resulted.in  differing  levels  of  effectiveness  and  in 

variations  as  regards  the  basis  on  which  they  are  applied. 

* 

The  number  of channels  surveyed  was  148 (105  in  1992).  Of these,  91 broadcast  a  majority 

proportion  of  European  works  in  1994  (as compared  to  70  channels  doing  so  in  1992). 

Moreover,  in  almost  all  Member  States,  the  majority  of  mainstream  terrestrial  broadcasters 

(which  account  for  by  far  the  largest  share  of  the  audience)  achieved,  or  exceeded  by  a 

considerable margin, the majority  proportion.  There was only a limited number of exceptions 

and in most of these cases the proportion remained close to 50%.  Many of those channels not 

reaching the majority proportion were recently launched channels and/or satellite channels with 

limited  audience  share,  often  providing  specialist  programming  on  a pay-TV "Basis. 

* 

119 channels  out  of  148 complied  with  the  10% minimum  rule  for  independent  productions 

(63  channels  achieved  this  figure  in  1992). 

* 

The  Commission  is  satisfied,  in  general  terms,  with  the  results  of  this  second  monitoring 

exercise,  while  reserving  its  right  to  take  further  measures  as  appropriate  in  specific  cases. 

CONTENTS 

INTRODUCTION 

PROVISIONS  AND  TRANSPOSAL  OF DIRECTIVE  89/552/EEC 

SPECIFIC  CONTEXT  OF  THE  REVISION  OF DIRECTIVE  89/552/EEC 

SUMMARY  OF  REPORTS  FROM  MEMBER  STATES 

COMMISSION  OPINION 

ANNEXES 

1. 

2. 

3. 

4. 

Suggested  guidelines  for  monitoring  the  application  of  the  Television  without 
Frontiers  Directive 

Summary  tables  covering  the  last two  years 

List  of  channels  which  failed  to  reach  the  proportion  for  European  works 

List of channels which failed  to reach the proportion for independent  productions 

INTRODUCTION 

This  communication  covers  the  second  series  of  Member  States'  reports  on  the 
implementation  of  Articles  4  and  5 of  the  Television  without  Frontiers  Directive.1 

Article  4(3)  requires  the  Commission  to  obtain  statistics  from  the Member  States  every 

two  years  on  the  proportion  of  television  transmission  time  accounted  for  by  European 

and  independent  programmes. 

The specific  aim of Articles 4 and 5 is to promote the production  and  distribution  of  such 

programmes  as  part  of  the framework  for  the  free  movement  of television  broadcasting 

services  within  the  European  Union. 

The  main  aim  of  the  Directive  is  to  establish  the  legal  framework  for  such  free 

movement,  where  necessary  by  adequately  coordinating  national  measures. 

The  first  series  of  reports  was  the  subject  of  a  communication  adopted  by  the 

Commission  on 3 March  1994 and  subsequently  sent to the Council, Parliament  and  the 

Economic  and  Social  Committee. 

This  second  reference  period  runs  from  1 January  1993 to  31 December  1994  and 

the 

data  are for  calendar  years. 

The Member  States were required  to submit their national  reports to the Commission  by 

3  October  1995.  Reminders to this  effect  were  sent to the Permanent  Representatives  in 

April  1995.  In  actual  fact,  the  Commission  received  the  reports  over  a  period  ranging 

from  July  1995  to  March  1996. 

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 L 298, 17.10.1989). 
COM (94) 57 final,  3 March 1994. 

PROVISIONS  AND  TRANSPOSAL 

OF  DIRECTIVE  89/552 

The  Television  without  Frontiers  Directive,  which  came  into  effect  on  3 October  1991, 

serves  as  the  legal  reference  framework  for  the  pursuit  of  television  broadcasting 

activities in the European Union on the basis of the coordination  of certain provisions laid 

down  by  law,  regulation  or  administrative  action  in  the Member  States. 

The  areas thus coordinated  are jurisdiction  (Article 2), promotion  of the  distribution  and 

production  of  European  television  programmes  (Articles  4  to  9),  advertising  and 

sponsorship  (Articles  10  to  21),  protection  of  minors  (Article  22)  and  right  of  reply 

(Article  23). 

By  protecting  the  public  interest  in  these  fields  at  Community  level,  the  Directive 

guarantees  in  each  Member  State  the  freedom  of  reception  and  retransmission  of 

television  programmes  from  other  Member  States  of  the  Union. 

It  introduces  the  principle  of  the  application  to  a  broadcaster  of  a  single  body  of  law 

based  on common  objective  connecting  criteria designed to ensure that  every  broadcaster 

operating  in  the  Union  falls  under  the jurisdiction  of  one,  and  only  one,  Member  State. 

In  this  context  of  the  free  movement  of television  services,  the  coordination  of  national 
measures3  achieved  by  means  of  Articles  4 and  5 prevents  such  measures  from  forming 

legal  obstacles  to  the  free  movement  of  television  programmes  within  the  Community; 

by  this very  fact,  it  helps to  encourage  the  production  and  distribution  of  European  and 

independently  produced  programmes. 

These measures thus serve an objective  of a legal, economic and cultural  nature expressly 

called  for  by  the  Council  when  the  Directive  was  adopted  in  1989.  They  constitute  an 

area  of  harmonization  necessary  for  ensuring  the  free  movement  of 

television 

The vast majority  of Member States have introduced such measures in the form of obligations to 
broadcast (or produce) European works or programmes produced in a given language or produced 
"locally". 

programmes, which is legally  possible now that the various national  rules on broadcasting 

are  coordinated  at  Community  level. 

Article  44  sets  up  a  structure  based  on  three  pillars: 

establishment  of  a  core  of  broadcasting  time  devoted  to  specific  types  of 

programme  (all  categories  except  news,  sports  events,  games,  advertising  and 

teletext  services); 

devotion  of  a  majority  proportion  of  broadcasting  time  to  European  works  (as 

defined  in  Article  6).  This  is  to  be  done  where  practicable  and  by  appropriate 

means.  Member  States  are  required  to  ensure  that  this  proportion  is  attained 

progressively,  on  the  basis  of  suitable  criteria.  Where  it  cannot  be  attained,  the 

Article 4: 

" 1. 
Member States shall ensure, where practicable and by appropriate means, that broadcasters 
reserve  for European  works,  within  the meaning  of Article  6, a majority  proportion  of their 
transmission  time, excluding the time appointed to news, sports events, games, advertising and 
teletext  sendees. This proportion,  having regard to the broadcaster's informational,  educational, 
cultural and entertainment responsibilities to its viewing public, should be achieved progressively, 
on the basis of suitable criteria. 

Where the proportion laid down in paragraph 1 cannot be attained, it  must not be lower 

2. 
than the average for 1988 in the Member  State concerned. 
However, in respect of the Hellenic Republic and the Portuguese Republic, the year 1988 shall be 
replaced by the year  1990. 

From 3 October 1991, the Member States shall provide the Commission every two years 

3. 
with a report on the application of this Article and of Article 5. 
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 television programmes  falling  within the 
jurisdiction of the Member State concerned, the reasons, in each case, for the failure to jttain that 
proportion and the measures  adopted or envisaged  in order to achieve it. 
The Commission shall inform the other Member States and the European Parliament of the reports, 
which shall be accompanied, where appropriate, by an opinion. The Commission shall ensure the 
application  of this  Article  and Article  5 in accordance  with the provisions  of the  Treaty. The 
Commission  make take account in its opinion, in particular, of progress achieved in relation to 
previous years, the share of first broadcast works in the programming, the particular circumstances 
of  new television  broadcasters  and the specific  situation  of countries  with  a low audiovisual 
production capacity  or restricted language area. 

4. 
The Council shall review the implementation of this Article on the basis of a report from 
the Commission accompanied by any proposals for revision that it may deem appropriate no later 
than the end of the fifth  year from  the adoption of the Directive. 
To that end, the Commission report shall, on the basis of the information provided by the Member 
States under paragraph 3, take account in particular of developments in the Community market and 
of the international  context." 

proportion  must  not  be  lower  than  the  average  for  1988  in  the  Member  State 

concerned  (1990  in  Greece  and  Portugal), 

review  and  evaluation  by  the  Commission  on the basis  of  statistical  reports  from 

the Member  States. 

Article  55  sets  the  proportion  of  transmission  time  (or  alternatively  of  programming 

budgets)  to  be  reserved  for  European  works  by  producers  who  are  independent  of 

broadcasters  at  10% of  the  same  core time  (or  of  programming  budgets),  subject  to  the 

same review requirements.  An adequate proportion  must be earmarked  for  recent  works, 

that  is to  say,  works  transmitted  within  five  years  of  their  production. 

The  deadline  for  Member  States  to  transpose  the  Directive  was  two  years  after  its 

adoption,  i.e.  3  October  1991.  It  is  for  them  to  ensure  that  broadcasters  within  their 

jurisdiction  meet  their  obligations  under  it,  including  those  of  Articles  4  and  5. 

In  its  examination  of  the  transposai  of  the  Directive,  which  from  1 January  1995  was 
extended  to  include  the  three  new  Member  States  (Austria,  Finland  and  Sweden),6  the 

Commission  mainly  verified  that  the  obligations  laid  down  in  Article  4  and  5 had  been 

incorporated  into  the  national  legal  systems  regardless  of  the  kind  of  instrument  (law, 

administrative  order  or  other  type  of  instrument)  used  . 

5 

It reads: 

"Member  States  shall  ensure,  where  practicable  and  by  appropriate  means,  that  broadcasters 
reserve  at  least  10% of  their  transmission  time,  excluding  the time  appointed  to  news, sports 
events, games, advertising and teletext  services, or alternately, at the discretion of the Member 
State, at least  10% of their programming budget, for European works created by producers who 
are independent of broadcasters. This proportion, having regard to the broadcaster's informational, 
cultural and entertainment responsibilities to its viewing public, should be achieved progressively, 
on the basis of suitable criteria;  it must be achieved by earmarking an adequate proportion  for 
recent works, that is to say works transmitted  within five years of their production." 

Under the European Economic  Area Agreement, which came into force  on  1  January  1994, the 
three new Member States are required to submit statistics for  1994.  So are Iceland, Liechtenstein 
and Norway, but only  Norway  has done so. 
"A directive shall be binding, as to the result to be achieved, upon each Member State to which 
it is addressed, but shall leave to the national authorities the choice of form  and methods" - third 
paragraph of Article  189 of the EC Treaty. 

As pointed  out  in  the  communication  of March  1994, the  legal  flexibility  of the  system 

derives  from  the  wording  of  the  obligations  themselves  ("where  practicable  and  by 

appropriate means" and "progressively"), representing the political compromise sought by 

the  Member  States.  The  bodies  which  in  the  last  resort  have  to  fulfil  those  obligations 

are the television  broadcasters. 

On the basis  of  the  statistical  reports which  the Member  States  are  obliged  to  send  to  it 

at  regular  intervals  (every  two years)  and  for  the  second  time  in  October  1995, the  task 

assigned  to  the  Commission  is  to  monitor  the  results  obtained  from  broadcasters 

concerning  the  televising  of  European  works  and  independent  productions  on  all  the 

channels8  at their  command. 

To enable it to fulfil  this task, necessitating as it does the provision by the Member  States 

of  figures  and  explanations,  the  Commission  has  expressly  asked  the  Member  States  to 

make  an  active  contribution  in  this  respect. 

To this end,  a methodological  approach  was worked  out in  1993 at regular meetings with 

Member  States' representatives,  it being understood  that responsibility  for  the  production 

of  reports  lay  entirely  with  the  Member  States  themselves. 

This  approach  led  to  the  production  of  "Suggested  guidelines  for  monitoring 

the 

application  of  the  Television  without  Frontiers  Directive",  which  were  used  for  the  first 

monitoring  exercise,  then  updated  and  sent to the  Member  States  in  April  1995  for  this 

second  exercise.  They  are  annexed. 

The  guidelines  offer  a  number  of  common  definitions  and  interpretations  based  on  the 

logic  of  the  Directive.  Broadly  speaking,  this  means: 

the  definition  of  a broadcaster  includes  all  the  channels  it  operates; 

the  jurisdiction  to  which  a  broadcaster  is  subject  to  depends  on  its  place  of 

establishment  (Article  2(1)); 

The  term  "channel"  will be  used  in  this communication  to  designate  a  "television  programme" 
within  the  meaning  of  Article  4(3)  as the  broadcasters  often  operate  more  than  one  channel. 

7 

broadcasting  time used to calculate proportions  does not include test-card  display 

time; 

two  criteria  are used  together  to  determine  whether  a producer  is independent  of 

the  broadcaster  -  the  broadcaster's  capital  holding  in  the  producer  (maximum 

25%)  and  proportion  of  the  producer's  business  done  with  the  same  broadcaster 

(maximum  90%  over  any  three-year  period); 

Member  States are asked to supply  statistics for the calendar years  1993 and  1994 

(i.e.  January  to  December); 

statistics  are  gathered  from  broadcasters  in  aggregate  and  for  each  channel  they 

operate. 

Member  States were  also  asked  to  add  all  further  information  that  might  be useful,  such 

as  definitions,  information  categories  and  interpretations  they  used. 

SPECIFIC  CONTEXT  OF  THE  REVIEW 

OF  DIRECTIVE  89/552/EEC 

Article  26  of  the  Directive  laid  down  that,  by  3  October  1994  at  the  latest,  the 

Commission  was to present to Parliament  and the  Council  a report  on the  application  of 

the  Directive  accompanied  by  any  proposals  to  adapt  it  to  developments  in  the  field  of 

television  broadcasting. 

On  22  March  1995,  the  Commission  therefore  adopted  that  report,  together  with  a 
proposal  for  a  Directive  amending  the  1989  Directive10.  The  aim  of  the  proposal  is  to 

render  more  effective  the  legal  framework  set  up  to  promote  the  development  of 

television  broadcasting  activities  in  the  Union. 

The  proposal  seeks  to  clarify  the  rules  on  jurisdiction,  the  protection  of  minors  and 

measures  to  promote  European  works.  It  adapts  the  text  to  the  new  economic 

circumstances  of  the  sector,  notably  by  laying  down  specific  rules  for  teleshopping,  the 

possibility of special-interest channels helping promote the European programmes industry 

by  investing  in  European  works  and  the  adaptation  of  various  provisions  relating  to 

advertising  and  sponsorship. 

The  scope  of 

the  Directive 

remains 

the  same. 

It  continues 

to  apply 

to 

"point-to-multipoint" broadcasting services, including "pay-per-view" and  "near-video-on-

demand"  but  does  not  concern 
"video-on-demand"  (VOD).11 

the  new  "point-to-point" 

services 

such  as 

The  problems  raised  by the  operation  of these new types  of  services  are to be  studied  in 

a  Green  Paper  on  the  New  Audiovisual  Services  which  the  Commission  intends  to 

finalize  and  present  to the  Community  authorities  in  1996. 

To  avoid  any  confusion  in  the  mind  of  the  reader,  it  should  be  pointed  out  that  the  exercise 
referred  to here is distinct from  that covered by this communication,  which relates to the  specific 
report  provided  for  in  Articles  4  and  5 (see  Article  4(3)). 
OJ  C  185,  19.7.1995;  COM(95)  86  final. 
Further  details  concerning  the  proposal  for  a  Directive  amending  the  1989  Directive  are  to  be 
found  in  COM(95)  86  final,  particularly  the  explanatory  memorandum. 

10 

11 

The  Economic  and  Social  Committee  delivered  its opinion on the  Commission  proposal 
on  13  September  1995.12  On  14 February  1996  Parliament  adopted  a  legislative 
resolution13  approving  it,  subject  to  amendments.  The  Council  adopted  its  common 

position  on  11 June  1996. 

This  brief  account  of  the  state  of  play  on  this matter  in  no  way prejudices  the  outcome 

of the interinstitutional deliberations on this new proposal, which is based on Article  189b 

of  the  Treaty,  i.e.  co-decision  by  the  Council  and  the  European  Parliament. 

The  Commission  draws  attention  to  the  fact  that  this  communication,-  which 

intentionally  covers  the  national  reports  for  1993  and  1994,  is  based  on 

the 

Directive  in  the  wording  in  which  it  was  adopted  in  1989. 

Lastly,  it  should  be  noted  that  alongside  the  Directive,  which  forms  the  legal  reference 

framework  for  the  European  audiovisual  area,  a  number  of  other  audiovisual  policy 

initiatives  have  been 

taken  by 

the  Community  specifically 

to  strengthen 

the 

competitiveness  of the  European  programme  industry  through the provision  of  financial 

support,  the  most  noteworthy  examples  being  the  MEDIA  II  programme  (measures  to 
encourage  the development  of the European  audiovisual  industry),14 the  Action  Plan  for 
the  introduction  of  advanced  television  services  in  Europe15  and  the  creation  of  a 
European Guarantee  Fund to promote cinema and television production16  as proposed by 

the  Commission  in  November  1985. 

OJC  301,  13.11.1995. 
PE  196.583 

The  Council  adopted  two  decisions  on  10 July  1995 (development  and  distribution  aspects)  and 
20 November  1995  (training  aspects) further  to Decision  90/685/EEC  of 21  December  1990  (OJ 
L  380,  31.12.1990). 
Council  Decision  93/424/EEC  of  23  July  1993 (OJ  L  196,  5.8.1993). 
COM  (95)  546. 

10 

SUMMARY  OF  REPORTS  FROM  MEMBER  STATES 

This  chapter  gives  a brief  summary,  without  comment,  of  the  material  contained  in  the 

Member  States' reports, compiled  on the basis of a literal  construction  of Article 4. It will 

be  remembered  that  Article  4(3)  requires  the  reports  to  contain: 

"a  statistical  statement  on  the  achievement  of  the  proportion  referred  to  in 

Articles  4  and  5  for  each  of  the  television  programmes 

falling  within  the 

jurisdiction  of  the  Member  State  concerned"; 

(where  appropriate)  the  reasons  in  each  case  (according  to  the  Member  State 

concerned)  for  failure  to  attain  that  proportion; 

the  measures  adopted  or  envisaged  to  achieve  it. 

Other  information  explicitly  provided  by  the  national  reports  is  also  outlined. 

See  footnote  8. 

11 

BELGIUM 

The  Commission  received  two  reports,  one from  the Flemish  Community  (F1C) and  the 

other  from  the  French-speaking  Community  (FrC). 

FLEMISH  COMMUNITY 

(A)  Statistical  statement 

1.  Summary  table 

Number  of  channels 

Reference  period 

5 

calendar  year 

Method 

survey 

2.  Proportions  (%) 

Channel 

European 

Independent 

Recent  works 

(broadcaster) 

works 

productions 

(RW) 

(EW) 

(IP) 

1993 

1994 

1993 

1994 

1993 

1994 

TV1  (BRTN) 

65.4 

67 

8.2 

TV2  (BRTN) 

72.7 

VTM  (VTM) 

Filmnet  Plus 

(Multichoice) 

43 

26 

79 

45 

24 

The  Complete 

17.5 

14.6 

Movie  Channel 

(Multichoice) 

8.9 

15 

31 

6.3 

7.3 

15.4 

12.3 

29.2 

27.9 

20 

34 

18.2 

16.3 

15.1 

13.4 

12 

(B) Reasons  given  bv  Member  State  for  failure  to  reach  proportion 

1.  European  works 

-  VIM:  the  reason  given  is  the  date  when  the  channel  was  launched  (1.2.1989).  The 

report  makes  two  points:  this  channel,  which  is  distributed  by  cable  in  the  F1C, is  local 

and  not  subject  to  Articles  4  and  5; 

the  percentage  exceeds  the  average  recorded  in 

1988,  i.e.  40.26%. 

- Filmset Plus  and The Complete Movie  Channel: the percentages declared by  Multichoice 

are  global  with  no  detail,  given  the  nature  of  the  programmes  broadcast  by  these 

channels,  the  proportions  cannot  be  met. 

2.  Independent  productions 

-  The  report  states  that  BRTN  is  complying  with  the  10%-of-budget  proportion. 

(C) Measures  taken  or  envisaged  by  the Member  State 

Not  reported. 

"This chapter shall not apply to local television broadcasts not forming part of a national  network" 
- Article  9 of Directive  89/552/EEC;  the  Commission  reserves the right to  decide  on the  validity 
of  this  claim  in  the  specific  case  of  VTM. 

13 

FRENCH-SPEAKING  COMMUNITY 

(A) Statistical  statement 

1.  Summary  table 

Number  of  channels 

Reference  period 

Method 

6 

calendar  year 

sampling 

(4  weeks  a  year) 

2.  Proportions  (%) 

Channel 

European 

Independent 

Recent  works 

(broadcaster) 

works 

productions 

(RW) 

(EW) 

(IP) 

1993 

1994 

1993 

1994 

1993 

1994 

75.1 

68.4 

29.6 

17.3 

17 

16 

11.5 

83.3 

0 

50 

0 

0 

93.3 

93.8 

38.7 

62.6 

27 

44 

RTBFl 

(RTBF) 

Sport  21 

(RTBF) 

Arte  21 

(RTBF) 

Tele  21/21 

76.7 

84 

53.4" 

32.1 

32 

16 

(RTBF) 

RTL-TVi  (TVi) 

44.59 

48.77 

13.78 

18.61 

4.91 

9.22 

14 

Canal+ 

45.47 

46.64 

17 

25.59 

-

-

(Canal+TVCF) 

(B) Reasons  given  by Member  State  for failure  to reach  proportion 

A  number  of  additional  factual  comments  are made: 

-  Sport  21  and  Arte  21  closed  on  30.6.1995. 

- Eleven non-transfrontier  local television channels not forming part of a national-network 

are  mentioned  (see  Article  9 of  Directive  89/552). 

1.  European  works 

-  The report  gives the  1988 average as the proportion  accounted  for  by European works: 

41.6%. 

-  Sport  21: the  channel  is  devoted  to  sport;  the  sampling  method  lies  at the  root  of  the 

1993  percentage. 

2.  Recent  works 

-  Canal+  TVSF: the  channel  points  out  that  its  programme  schedules  consist  mainly  of 

recent  films. 

__ 

(C) Measures  taken  or  envisaged  by  the Member  State 

Not  reported. 

15 

(D) Further  comment 

The  report  specifies  that  a producer  is  considered  to  be  independent  if: 

-  it  has  a legal  personality  distinct  from  that  of  any  broadcaster; 

-  no broadcaster  has  a blocking  minority  in  it; 

-  it  does  not  have  a  direct  or  indirect  blocking  minority  in  the  broadcaster; 

-  in  the  case  of  co-production  with  a  broadcaster,  it  is  the  producer  which  has  legal 

responsibility  and  underwrites  the  production; 

-  the  work  was  not  produced  more  than  five  years  before  first  being  broadcast. 

16 

DENMARK 

(A) Statistical  statement 

1.  Summary  table 

Number  of  channels 

Reference period 

Method 

3 

calendar  year 

2.  Proportions  (%) 

Channel 

European 

Independent 

Recent  works 

(broadcaster) 

works 

productions 

(RW) 

(EW) 

(IP) 

1993 

1994 

1993 

1994 

1993 

1994 

DR 

TV2 

DK4 

77 

63 

-

72 

65 

11 

67 

10 

64 

-

77 

100 

-

100 

-

66 

86 

10 

(B) Reasons  given  by Member  State  for failure  to reach  proportion 

All  the  channels  surveyed  observed  the  proportions  laid  down  in  Articles  4  et  5. 

DK4  began  broadcasting  in  December  1994. 

(C) Measures  taken  or  envisaged  by the Member  State 

Not  applicable. 

17 

(D) Further  comment 

The  report  states  that  the  definition  of  "independent  production"  used  is  taken  from 

company  law  (the  relationship  between  parent  and  subsidiary).  The  producer  is 

independent  of the broadcaster unless the latter: 

-  has a majority  holding in the producer; 

-  is entitled to appoint  or dismiss a majority  of the producer's  staff; 

-  is a co-owner  of the producer  and can exert a decisive influence  over it, by virtue of 

its articles of association  or an agreement with it; 

- is a co-owner of the producer and also has a majority  of the voting rights, by agreement 

with the other owners; 

-  is a co-owner  of the producer  and has a determining influence  over it. 

18 

GERMANY 

(A)  Statistical  statement 

1.  Summary  table 

Number  of  channels 

Reference period 

14 

calendar  years 

Method 

survey 

2.  Proportions  (% 

Channel 

(broadcaster) 

European 

Independent 

Recent  works 

works 

(EW) 

productions 

(RW) 

(IP) 

1993 

1994 

1993 

1994 

1993 

1994 

ARD  (ARD-

90.3 

90.2 

42.7 

43.3 

87.3 

92.5 

Rundfunk-

anstalten) 

ZDF  (ZDF) 

3  SAT  (ZDF-

ORF-SRG-ARD) 

83.4 

95.3 

79 

95 

51.2 

51.9 

74 

72.4 

35 

31.5 

67.7 

75.7 

Deutsche  WelleTV 

65.78 

66.54 

36.2 

34.2 

89.59 

89.69 

(Deutsche  Welle) 

DSF  (Deutsches 

100 

100 

18.5 

20.25 

100 

100 

Sportfernsehen 

GmbH) 

KABEL  1 (Kl 

12.2 

15.1 

12.2 

15.1 

33.6 

29.8 

Fernsehen  GmbH) 

19 

N-TV  (n-tv 

100 

100 

100 

100 

Nachrichtenfernsehe 

n GmbH  &  Co.KG) 

Premiere  (Premiere 

60.3 

59.32 

10 

10 

Medien  GmbH  & 

Co.KG) 

PRO  SIEBEN 

39.4 

43.2 

29.5 

28.3 

17 

18 

(PRO  SIEBEN 

Television  GmbH) 

RTL  (RTL 

Deutschland 

Fernsehen  GmbH 

&  Co.  Betriebs  KG) 

54 

56 

37 

38 

81 

79 

RTL  2  (RTL  2 

38 

36.1 

1 

2.2 

100 

100 

Fernsehen  GmbH 

&  Co.  KG) 

SAT  1 (SAT  1 

53.9 

47.1 

27.21 

29.1 

36.75 

35 

Satelliten  Fernsehen 

GmbH) 

VIVA  TV  5VIVA 

42 

1.5 

100 

TV  Fernsehen 

GmbH  &  Co.KG) 

VOX  (VOX  Film 

76.5 

63.8 

90.7 

98.7 

75 

75 

und  Fernseh  GmbH 

&  Co.KG) 

20 

(B) Reasons  given  by Member  State  for failure  to reach  proportion 

European  works 

-  KABEL  1 and  RTL  2:  the  reason  given  is the  date the  two  services  began  (1992  and 

6.3.1993).  They  cover  a very  small  area  and  earn  very  little  from  advertising. 

-  VIVA  TV:  began  in  1994. 

-  PRO  SIEBEN:  between  1989  (when  it began)  and  1995,  this  channel  made  efforts  to 

increase  the  proportion  of  European  works.  In  1995  it  reached  50%. 

(C) Measures  taken  or  envisaged  by the Member  State 

(D) Further  comments 

1. Concerning  European  works 

The  100% figures  for  DFS  and N-TV  are because  these  channels  broadcast  mainly  sport 

and  news,  which  are  excluded  areas. 

The  figures  for  Premiere  concern  the  first  showing  of  films. 

2.  Concerning  the  definition  of  "independent  producer" 

The report  states that  a definition  has been  agreed  with  the broadcasters:  "a producer  is 

dependent  upon  a broadcasting  corporation  when  the  latter  is  able,  in  law,  through  the 

setting-up  of  a company  or by  contract,  or in fact,  to  determine the former's  commercial 

policy.  The producer  is not  dependent for  these purposes  if the producer  is actually  able 

to  determine  its  commercial  policy  itself,  despite  any  influence  exerted  on  it  legally. 

Independence  of  a producer  from  a broadcaster  involves: 

- a major  share of the producer's turnover deriving from  operations with bodies other than 

the  dominant  broadcaster; 

-  the  producer  being  a member  of  the  German  federation  of  television  producers." 

21 

GREECE 

(A) Statistical  statement 

1.  Summary  table 

Number  of  channels 

Reference period 

8 

calendar  year 

(3  public,  5  private) 

Method 

survey 

2.  Proportions  (%] 

Channel 
(broadcaster) 

European 
works 
(EW) 

Independent 
productions 
(IP) 

Recent  works 

(RW) 

1993 

1994 

1993 

1994 

1993 

1994 

ET1  (ERT) 

62 

94 

29 

45 

-

14.61 

ET2  (ERT) 

51.66 

51.31 

66.22 

70.59 

24.78 

32.4 

ET3  (ERT) 

56.87 

58.66 

19.65 

31.39 

9.35 

13.94 

ANT1 

60.02 

61.96 

24.4 

24.54 

42.05 

52.5 

Mega  Channel 

51.5 

59.9 

52.8 

52.7 

59.88 

77.54 

New  Channel 

Seven  X 

Sky 

71 

70 

-

77 

71 

78 

71 

49 

-

77 

38 

49.94 

60.07 

63.63 

48.71 

26.5 

-

38.25 

(B) Reasons  given  by Member  State  for  failure  to reach  proportion 

-  The  report  states  that  all  channels  respected  the  proportions  for  the  years  concerned, 

Sky  having  been  surveyed  only  for  1994,  when  it  started  broadcasting. 

22 

(C) Measures  taken  or  envisaged  by Member  State 

Not  reported. 

23 

SPAIN 

(A)  Statistical  statement 

1.  Summary  table 

Number  of  channels 

Reference period 

Method 

13 

calendar  year 

2.  Proportions  (%) 

Channel 

European 

Independent 

Recent  works 

(broadcaster) 

works 

productions 

(RW) 

(EW) 

(IP) 

1993 

1994 

1993 

1994 

1993 

1994 

58 

57 

10.2 

10.5 

5 

6.1 

74 

63 

10.8 

12 

5.3 

5.8 

TVE-1 

(RTVE) 

TVE-2 

(RTVE) 

ANT-3 

48 

49 

7.6 

10.4 

4.2 

3.4 

(Antena  3TV 

TEL-5 

50 

51 

11.08 

12.27 

2.86 

2.02 

(Gestevision 

Telecinco 

CANAL+  (Soc 

41 

42 

36.2 

37.1 

34.9 

35.8 

TV  Canal+) 

24 

Channel 
(broadcaster) 

European 
works 
(EW) 

Independent 
productions 
(IP) 

Recent  works 
(RW) 

67 

64 

30.4 

34.3 

19.02 

25.3 

CST 

(RadioTV 

Andaluza) 

ETB-1 

82 

81 

14.5 

13.4 

7.7 

6 

(Euskal  Irrati 

Telebista) 

ETB-2  (Euskal 

53 

52 

6.3 

3.5 

4.2 

3.2 

Irrati 

Telebista) 

TV-3  (TV 

59 

65 

1.34 

1.93 

1.15 

1.65 

Catalunya) 

TV-33  (TV 

85 

84 

4.2 

5.2 

1.85 

2.3 

Catalunya) 

TVG  (TV 

Galicia) 

56 

54 

9.5 

10.3 

3.5 

4 

TVM(TV 

51 

51 

11.02 

10.8 

7 

6.5 

Madrid) 

TVV  (Radio-

64 

63 

13 

15 

10 

9.6 

TV 

Valenciana 

(B) Reasons  given  by Member  State for failure  to reach  proportion 

Not  reported. 

25 

(C) Measures  taken  or  envisaged  by Member  State 

-  Authorities  to  monitor  situation  further. 

26 

FRANCE 

(A) Statistical  statement 

1.  Summary  table 

Number  of  channels 

Reference period 

14 

calendar  year 

Method 

survey 

2.  Proportions (% 

Channel 

European 

Independent 

Recent  works 

(broadcaster) 

works 

productions  (IP) 

(RW) 

(EW) 

1993 

1994 

1993 

1994 

1993 

1994 

TF1(1) 

60.8 

62.8 

16.14 

15.17 

France  2  (1) 

74.9 

74.8 

15 

10 

France  3  (1) 

70.3 

68.8 

17.7 

17.8 

Canal  +  (1) 

59.7 

60.4 

12.8 

13.8 

M  6  (1) 

66.2 

66.1 

23.3 

19.2 

Canal  J  (3) 

65.8 

67 

70 

Canal  Jimmy 

49.7 

47.8 

21 

61 

22 

(2) 

Ciné-cinéfil  (2) 

51 

48.7 

39.6 

42.5 

-

-

-

-

-

-

-

-

-

-

-

-

-

-

-

-

27 

Channel 
(broadcaster) 

European 
works 
(EW) 

Independent 
productions  (IP) 

Recent  works 
(RW) 

Ciné-cinémas 

55.8 

52.7 

41.3 

38.7 

(2) 

MCM/Euro-

76 

80.4 

56.9 

50.1 

musique  (3) 

Multivision  (3) 

-

45 

-

Paris-

88.3 

86.6 

25 

Première(3) 

Planète  (2) 

74.6 

76 

52 

Série  Club  (3) 

60.1 

50.4 

59.6 

45 

61 

52 

50 

-

-

-

-

-

-

-

-

-

-

-

-

(B) Reasons  given  by Member  State  for failure  to reach proportion 

European  works 

- CanalJimmy,  Ciné-Cinéfil: the reasons given are the poor financial  results achieved  by 

cable  television  in  France  and  the  difficulties  in  obtaining  European  programmes. 

-  Multivision:  launched  in  1994,  this  channel  is  the  first  experiment  in  pay-per-view 

television,  is  carried  on  only  a  few  networks,  is  not  transmitted  by  satellite "and  has 

difficulty  in  obtaining  attractive  recent  films.  The  results  relate  to  eight  months-of 

broadcasting. 

(C) Measures  taken  or  envisaged  by Member  State 

Not  reported. 

28 

(D) Additional  remarks 

1. Independent  and  recent  productions 

-  The figures  provided  relate to both  independent  and recent  productions  (see Articles 3, 

9,  10  and  11  of  Decree  No  90-67  of  17/1/1990  containing  more  restrictive  criteria 

concerning  the  basis  for  the  definition  of works,  the  concept  of  orders,  the  scope  of  the 

obligation,  the  limit  on  a broadcaster's  stake  in  the  capital  of  a production  company). 

-  They  represent: 

IP and RW  as percentages of the company  turnover  in respect  of the  channels(l) 

IP  as  a percentage  of  the  channels'  programming  budgets(2) 

IP  as  a percentage  of  the  channels'  transmission  time(3). 

2.  Particular  cases 

-Arte:  Franco-German  channel, launched  on 28.9.92, to carry European  arts programmes 

(EW broadcast  in  1993: 94%; in  1994: 95%).  "La Sept", the French  partner in this EEIG, 

complied with the Article 5 obligation  (percentage of programming budget:  36% in  1993 

and  34.6% in  1994). 

- La  Cinquième: education,  training and employment channel  since  16.12.1994  screening 

mainly  programmes  of French  origin. 

-  TV5  Europe: 

international,  general-interest,  French-language  satellite  "channel 

broadcasting  almost  exclusively  French  and  European  programmes. 

-  France  Supervision  broadcasts  in  16:9,  most  of  its  programmes  being  supplied  by 

France  2  et France  3. 

29 

The  report  mentions  other  channels  not  covered  by  Articles  4  and  5: Euronews, LCI, 

Eurosport France, Eurosport International, Club du Téléachat, Chaîne du Téléachat, CTV, 

Rapido. 

30 

IRELAND 

(A) Statistical  statement 

1.  Summary  table 

Number  of  channels 

Reference period 

2 

calendar  year 

Method 

survey 

2.  Proportions (% 

Channel 

European 

Independent 

Recent  works 

(broadcaster) 

works 

productions 

(RW) 

(EW) 

(IP) 

1993 

1994 

1993 

1994 

1993 

1994 

RTE  1  and 

68 

70 

11 

14 

11 

14 

Network  2 

(RTE) 

(B) Reasons  given  by Member  State for failure  to reach  proportion 

Not  applicable. 

(C) Measures  taken  or  envisaged  by Member  State 

31 

Not  applicable. 

32 

CD) Additional remark 

-  The  definition  of  the term  "independent  producer"  is that  set  out  in  Section  5 of the 

Broadcasting Authority (Amendment) Act, 1993. It lays down two criteria for determining 

whether  or  not  a  producer  is  independent:  the  producer  must  have  control  over  the 

making of the programme and must be neither a subsidiary nor a holding company of the 

broadcaster. In the case of Ireland, which has only one television broadcasting corporation 

and  a  low  audiovisual  production  capacity,  the  suggested  maximum  of  90%  of  the 

producer's output over a three-year period furnished to one broadcaster is not appropriate. 

33 

ITALY 

(A) Statistical  statement 

1.  Summary  table 

Number  of  channels 

Reference period 

12 

calendar  year 

Method 

survey 

2.  Proportions (%) 

Channel 

European  works 

Independent 

Recent  works 

(broadcaster) 

productions 

EW) 

(IP) 

(RW) 

1993 

1994 

1993 

1994 

1993 

1994 

RAI1 

RAI  2 

RAI  3 

68.83 

69.04 

7.15 

8.66 

59.25 

66.17 

5.40 

3.37 

85.16 

85.48 

7.03 

7.62 

Canale  5 

80.50 

79.92 

Italia  1 

37.62 

36.50 

Rete  4 

40.20 

40.30 

0 

0 

0 

0 

0 

0 

TBS 

40 

39.99 

10 

10.46 

Beta  TV 

67.10 

70.84 

50.07 

50.36 

Tele 

41.09 

41.35 

9.45 

14.23 

Montecarlo 

Telepiu 1 

39.25 

34.43 

-

-

-

-

-

-

-

-

-

-

-

-

-

-

-

-

-

-

-

-

-

-

34 

Channel 
(broadcaster) 

European  works 

EW) 

Independent 
productions 
op) 

Telepiu 2 

66.15 

69.66 

Telepiu 3 

57.76 

54.68 

-

-

-

-

Recent  works 

(RW) 

-

-

-

-

(B) Reasons  given  by Member  State  for  failure to reach  proportion 

1.  European  works 

-  The  report  gives  national  averages  covering  the  reference  years  (56.9%  in  1993  and 

58.14%  in  1994)  and  points  to  a steadily  rising trend  since  1988, when  the  average  was 

43%. 

2.  Independent  productions 

-  Whilst  also  quoting  the  national  averages  (11.14%  in  1993  and  11.37%  in  1994), 

regarded  as  stationary,  the  report  explains  that  failures  are  attributable  to  uncertainty  as 

regards  the  definition  of  "independent  producer". 

(C) Measures  taken  or  envisaged  by Member  State 

Not  reported. 

35 

LUXEMBOURG 

(A) Statistical  statement 

1.  Summary  table 

Number  of  channels 

Reference period 

1 

calendar  year 

Method 

survey 

2.  Proportions  (%) 

Channel 

European 

Independent 

Recent  works 

(broadcaster) 

works 

productions 

(RW) 

(EW) 

(IP) 

1993 

1994 

1993 

1994 

1993 

1994 

RTL4  (CLT) 

45.3 

41.1 

29.4 

30 

25.9 

23 

RTL5  (CLT) 

28.2 

31.6 

15.5 

23.1 

12.4 

14.1 

RTLTv 

(CLT) 

54 

56 

36 

37 

Adequa 

Adéquat 

te 

e 

RTL  TVi 

44.59 

48.77 

13.78 

18.61 

4.51 

9.22 

(CLT) 

RTL  TV 

"hertzien" 

(CLT) 

43.08 

54.96 

19.36 

25.05 

6.61 

4.75 

36 

RTLTV 

51.69 

55.44 

24.3 

26.38 

6.44 

4.72 

"cable"  (CLT) 

Hei  Elei 

(CLT) 

100 

100 

1.9 

15.08 

1.72 

14.96 

(B) Reasons  given  by Member  State  for  failure  to reach  proportion 

1.  European  works 

- RTL4, RTL5,  RTL  TVi:  not  enough  European  works  suitable for  these  channels'  audiences 

available  at  competitive  prices,  the  channels  being  financed  exclusively  from  advertising 

revenue.  RTL5  (which  opened  in  1993)  and  RTL  TVi  made  definite  progress  in  1994,  this 

being  confirmed  in the case of RTL  TVi, whose percentage of European  works has been  rising 

steadily  since  1992.  As regards RTL4, the report states that over 80% of its 1994 programming 

budget  went  to  European  works  and  that  such  works  went  out  mainly  at  peak  times. 

- RTL  hertzien:  an  improvement  in  1994. 

A separate table in the  report  shows the improvement  in the average achieved  by  all  channels, 

including  RTL4,  as  compared  with  1991/1992. 

2.  Independent  productions 

RTL  Hei  Elei:  according  to  the  report,  this  channel  missed  the  target  in  1993  because  it 

broadcasts  (for  an  average  of  slightly  over  an hour each  day) in the Luxembourg  language.  It 

made  progress  in  1994. 

37 

(C) Measures  taken or  envisaged  by Member  State 

The authorities  have called  on the broadcasting  corporation  to inform  it  of the measures  it  has 

taken or intends to take in order to comply with Articles 4  and  5 of the Directive, as transposed 

into  Luxembourg  law. 

(D)  Remark 

Without  mentioning  percentages, the report also refers to  "Galavision",  a channel  belonging  to 

"Télévisa  S.A.  de  C.V.",  under  the  heading  "Programmes  transmitted  via  a  satellite  under 

Luxembourg jurisdiction  or  by  broadcasters  using  an  up-link  located  in  Luxembourg  but  not 

falling  under  the jurisdiction  of  any Member  State."  The broadcasting  time  accounted  for  by 

European  works  was  below  that  required  because  of  difficulties  in  obtaining  European 

programmes  of  interest 

to  the  channel's  Spanish-speaking  audience  and  meeting 

the 

broadcaster's  profitability  requirements. 

Luxembourg  has  called  on  the broadcaster  to inform  it of the measures  it has taken  or  intends 

to  take  in  order  to  comply  with  Articles  4  and  5. 

38 

NETHERLANDS 

(A) Statistical  statement 

1.  Summary  table 

Number  of  channels 

Reference period 

Method 

5 

calendar  year 

sampling 

2.  Proportions (%) 

Channel 

European 

Independent 

Recent  works 

(broadcaster) 

works 

productions 

(RW) 

(EW) 

• 

(IP) 

1993 

1994 

1993 

1994 

1993 

1994 

76 

70 

81 

62 

78 

76 

71 

68 

33 

43 

14 

34 

30 

43 

15 

38 

28 

40 

11 

11 

24 

42 

13 

18 

Ned  1 

Ned  2 

Ned  3 

TVPlus 

Multichoice 

NL 

(B) Reasons  given  by Member  State  for  failure  to reach  proportion 

Not  applicable. 

39 

(C) Measures  taken  or  envisaged  by Member  State 

Not  applicable. 

(D)  Remark 

Multichoice  NL:  figures  still  awaited  as this  communication  is being  drafted. 

40 

AUSTRIA 

A)  Statistical  statement 

1.  Summary  table 

Number  of  channels 

Reference period 

Method 

2  (public) 

Calendar  year  1994 

exhaustive  survey 

2. 

Proportions  (%) 

Channel 

(broadcaster) 

ORF1 

ORF2 

European  works 

Independent 

Recent  works  (RW 

(EW) 

1994 

61.2 

70.6 

productions  (IP) 

1994 

15.1 

14.3 

1994 

6.9 

7.4 

(B) Reasons  given  by Member  State for  failure  to reach  proportion 

Not  applicable. 

(C) Measures  taken  or  envisaged  by Member  State 

Not  applicable. 

41 

PORTUGAL 

(A) Statistical  statement 

1.  Summary  table 

Number  of  channels 

Reference period 

5 

calendar  year 

(3  public,  2 private) 

Method 

-  survey 

-  sampling  for  RW  on 

public  channels 

(Aug.  1993  and  1994)" 

2 Proportions  (%) 

Channel 

European 

Independent 

Recent  works 

(broadcaster) 

works 

productions 

(EW) 

(IP) 

(RW) 

1993 

1994 

1993 

1994 

1993 

1994 

Canal I  (RTP) 

53 

TV2 (RTP) 

53 

RTP-I  (RTP) 

100 

SIC  (SIC) 

TVI  (TVI) 

31 

16 

45 

64 

99 

33 

18 

29 

41 

66 

100 

4 

22 

21 

55 

23 

5 

100 

87 

100 

100 

70 

99 

88 

62 

70 

89 

42 

(B) 

Reasons  given  by Member  State  for  failure  to reach  proportion 

1. European  works 

-  Canal  I:  The  situation  in  1994  can  be  explained  by  a  multitude  of  factors,  in  particular  the 

arrival  of private operators, the channel's public service vocation  and the economic  environment. 

-  Sic:  difficult  economic  situation,  limited  advertising  market,  fall  in  advertising  expenditure, 

start-up  of  activity,  cost  and  attraction  of  non-European  programmes. 

-  Tvi:  recent  channel  operating  in  the  same  environment. 

2.  Independent  productions 

-  Sic:  no  figures  for  1993. 

-  Tvi:  economic  situation,  recourse  to  own  and  lower-cost  productions. 

(C) Measures  taken  or  envisaged  by Member  State 

-  Canal  1:  urged  to  take  appropriate  steps  in  the  context  of  a  regular  dialogue  with  the 

authorities,  who  believe  that  this  situation  is  temporary. 

-  Sic  and  Tvi:  Authorities  to  monitor  situation  further. 

(D)  Remarks 

-  The  report  emphasised  the  specific  position  of  countries  with  a  low  audiovisual  production 

capacity  or  restricted  language  area. 

43 

FINLAND 

(A)  Statistical 

statement 

1.  Summary  table 

Number  of  channels 

Reference  period 

Method 

3 

Calendar  year  1994 

Sampling 

2.  Proportions  (%) 

Channel 

(broadcaster) 

TVI 

(YLE) 

TV2  (YLE) 

(EW) 

1994 

85 

78 

MTV3 

(MTV) 

46.9 

European  works 

Independent 

Recent  works  (RW 

productions 

(IP) 

1994 

7 

15 

20.2 

1994 

7 

15 < 

20.2 

(B)  Reasons  given  by  Member  State  for  failure 

to  reach  proportion 

1. European  works 

- MTV3:  The  report  states that the  extension  of programming time  obliges  the  channel  to  resort 

to  foreign  programmes. 

2. Independent  productions 

-  TVI:  The data  relate  to  the period  1.9 o  31.12.1994; the preliminary  data for  the period  1.1 

to  30.6.1995  show  a progression:  11% for  TVI  and 8% for  TV2. 

44 

(C) Measures  taken  or  envisaged  by Member  State 

-  The report considers  that the situation  of MTV3  should  be corrected  in  1995: the channel  will 

increase its own production by  1.5  hours a day and in  1995 a series of German  origin  is expected 

to be  included  in  the  programme  schedule. 

45 

SWEDEN 

A)  Statistical  statement 

1.  Summary  table 

Number  of  channels 

Reference  period 

Method 

11 

Calendar  year  1994 

- ZTV:  sample  over  6 

months 

European  works 

Independent 

Recent  works  (RW 

2. 

Proportions  (% 

Channel 

(broadcaster) 

(EW) 

1994 

TV4  (TV4  AB) 

49.1 

Filmnet  Plus 

3 

The Complete 

Movie  Channel 

(Filmnet  TV  AB) 

ZTV  (ZTV  AB) 

76.1 

TVG  (Stuvik  AB) 

100 

50 

82 

TV6  (Stuvik  AB) 

Kanal  1 

TV 2 

(Sveriges  TV) 

TV2 

1994 

-

-

-

productions  (IP) 

1994 

10 

26.5 

33.2 

100 

50 

15 

46 

96 

29 

Kanal1 

TV2 

(Sveriges 

Utbildingsrad) 

TV 1000 

29.06 

(TV  1000  Sveriges 

AB) 

(B) Reasons  given  by Member  State  for failure  to reach  proportion 

European  works 

-  TV  1000  and  Filmnet  TV  AB: both  companies,  competing  on the  same market,  have  to  show 

films  which  are  sufficiently  attractive  to justify  the  cost  of  subscriptions. 

(C) Measures  taken  or  envisaged  by Member  State 

Not  reported. 

47 

UNITED  KINGDOM 

(A) 

Statistical  statement 

1. 

Summary  table 

Number  of  channels 

Reference period 

35 

calendar  year 

Method 

survey 

Proportions  (%) 

Channel 

European 

Independent 

Recent  works 

(broadcaster) 

works 

productions 

(EW) 

(IP) 

(RW) 

1993 

1994 

1993 

1994 

1993 

1994 

BBC  1 

BBC  2 

71 

77 

66 

75 

23 

12 

22 

14 

1TV 

66.9 

67.6 

24.7 

24.8 

23 

21.3 

Channel  4 

59.2 

60.5 

47.3 

49.4 

39.4 

40.3 

The  Adult 

38.2 

40.1 

24.8 

29 

Channel 

BBC  World 

99 

99 

11 

9 

Service 

Bravo 

33.2 

45.1 

1.5 

The  Cartoon 

1.7 

1.7 

Network 

Country  Music 

1.1 

1.6 

1.1 

1.6 

1.1 

1.6 

TV 

48 

The  Discovery 

50.7 

48.1 

28.2 

28.5 

Channel 

The  Family 

15.5 

27.9 

5.4 

11.8 

5.4 

11.8 

Channel 

HVC 

22.1 

14.7 

9.7 

3 

Kindernet 

74.6 

78.8 

69.9 

69.8 

6.2 

2.5 

TV  1000 

22.3 

29.4 

22.3 

29.4 

UK  Gold 

58 

58.1 

11 

14.1 

10.3 

9.7 

UK  Living 

55.2 

56.6 

55.2 

56.6 

46.5 

50 

TV3  DK 

26 

31.7 

11.1 

15 

TV3  Norway 

TV3  Sweden 

VH 1 

Vision 

32.9 

27.8 

39.4 

97 

36 

13.7 

19.7 

75.5 

21.9 

24.5 

19.3 

22.1 

VJN  "The 

64 

68.6 

24.5 

27.2 

Box" 

Travel 

TNT 

TCC 

(Children's 

Channel) 

41.4 

12.8 

6.4 

10.9 

6.4 

10.9 

51.7 

46 

28.7 

26.4 

TLC  (Learning 

84.7 

57.8 

43.1 

41.6 

Channel) 

Sky  Travel 

Sky  Soap 

31.4 

5.9 

12.2 

12.2 

Sky  One 

13 

14.5 

5.5 

8.5 

49 

Sky  Movies 

16.8 

23.7 

7.4 

10.4 

The  Movie 

13 

16.3 

9 

11.1 

Channel 

Sky  Movies 

15.4 

16.7 

13 

13.7 

Gold 

Performance 

62.6 

71.5 

25.9 

26.7 

9.9 

14 

NBC  Super 

61.4 

41.9 

20.8 

11.2 

18..8 

9 

Channel 

Nickelodeon 

26.4 

24.4 

13.4 

12.4 

(B) Reasons  given  by Member  State  for  failure  to reach  proportion 

1. European  works 

(a)  because  of  the  thematic  character  of  the  channel 

- Bravo:  the  channel's  classic  format  requires  programmes  designed  for  terrestrial  networks 

-  Country Music  TV:  license  revoked  in  October  1994; mostly  US  music. 

- HVC:  primarily  'B' movies,  insufficient  suitable  material  available  except  from  the  USA. 

-  TV  1000,  Sky  Movies,  The  Movie  Channel,  Sky  Movies  Gold:  mostly  cinema  films,  largely 

of  US  origin  (as  in  the  cinema). 

-  Vision:  specialist  religious  channel  reflecting  the world-wide  nature  of  the  Christian  faith. 

-  The Cartoon Network:  launched  in  September  1992 and based  on existing US library  material; 

difficulty  in  acquiring  suitable  European  animation  programmes. 

-  TNT: opened  in  September  1993; existing  US  film  library  material. 

50 

(b)  because  of  when  the  channel  began  broadcasting 

-  The Family  Channel,  Nickelodeon:  began  in  September  1993; difficulty  in  acquiring  suitable 

English-language  programmes. 

-  TV 3(DK/NO/SW):  the Norwegian  and  Swedish  channels  resumed  in  1994; ratio between  cost 

and  viewing  figures  unfavourable  to  European  programmes. 

-  VH 1,  Travel,  Sky  Travel,  Sky  Soap:  began  in  1994;  cost  of  suitable  European  programmes. 

(c)  other  reasons 

_ 

-  The Adult  Channel:  ending  of  a  commercial  agreement  with  a producer  of  European 

programmes. 

-  The Discoveiy  Channel,  TCC, NBC  Super  Channel: . 

- Sky One: difficulties  with trade unions, so that cost of secondary  programmes  favours US ones. 

2.  Independent  productions 

-  BBC  World  Service:  rescheduling  in  1994  at  the  expense  of  some  independent  productions, 

because  of  contract  stipulations. 

- Bravo:  the targets concerning independent and recent productions are excluded by the channel's 

format. 

C) Measures  taken  or  envisaged  by Member  State 

The report  states that the  authorities  have been  speaking with the broadcasters  of  some thematic 

channels  and  will  if  necessary  use  the  powers  under  Section  188  of  the Broadcasting  Act. 

51 

They  are also  continuing  detailed  discussions with  the  following  channels  in  order  to  determine 

to  what  extent  and  over  what  period  of  time  the  attainment  of  the  quota  provisions  could  be 

regarded  as practicable:  The Family  Channel, HVC,  TV 1000, TV 3 (DK/NO/SW),  Vision, Travel, 

TNT, Sky  Travel,  Sky  Soap,  Sky  One, Sky Movies,  The Movie  Channel,  Sky Movies  Gold, NBC 

Superchannel,  Nickelodeon. 

Some  further  data  show  progress  in  achieving  the  quotas: 

-  TV 1000: European  works  accounted  for  31.8%  in  the  last  three  months  of  1994  and  36% in 

1995; 

-  TNT: European  works  accounted  for  17.8% in late  1994 and 21.7% at the end of August  1995; 

-  Sky  One:  in  the  first  two  quarters  of  1995 European  works  accounted  for  36% and  31.2%. 

The  report  states  that  the  proportions  have  been  or  will  be  reached  in  1995  or  1996  by  the 

following  channels:  The Adult  Channel,  BBC  World TV,  The Discovery Channel (59 % European 

content  in  1995),  TCC. 

Finally,  it  underlines  a  steady  annual  improvement  for  the  following  : Bravo,  The  Cartoon 

Network  (at  the  end  of  1994,  the  broadcasting  of  European  works  reached  9,6%  and  additional 

improvements  has  had  to  be  made  in  1995). 

(D) Remarks 

-

The  report  makes  the  following  further  remarks: 

- the statistics  were gathered  in accordance  with the  "Suggested  guidelines  for the monitoring  of 

the  Television  without  Frontiers  Directive"; 

-  according  to  Broadcasters'  Audience  Research  Board  Ltd.,  the  four  main  terrestrial  channels 

account  for  92%  of  the  viewing  public; 

52 

-  a  number  of  the  satellite  channels  are not  covered  by  the  quota  requirements  under  Articles  4 

and  5 because  of the nature  of their  programmes.  The Commission  has not  included  them  in  the 

table  above.  They  are:  Asia  Net,  The  Chinese  Channel,  CNE,  Japan  Satellite  TV,  TV  Asia, 
Muslim  TV  Ahmadiyya19,  Namaste  (non-European  languages),  Sky  Sport,  Sky  Sport  2,  SIS 

Racing  Facts,  Setanta  Sport  (sports  channels),  Sky  News,  The  Parliamentary  Channel  (news), 

Quantum  Home  Shopping,  QVC,  Regal  Shop,  Sell  a Vision  (teleshopping). 

19 

This channel broadcasts religious programmes, some of which are in non-European languages. The 
report  states  that  the proportion  of European  works  should have been  complied  with  (as  regards 
programmes  in  English)  and  that  discussions  will  be  held  to  establish  future  targets. 

53 

NORWAY 

(A) Statistical  statement 

1.  Summary  table 

Number  of  channels 

Reference  period 

Method 

3 

Calendar  year  1994 

-  sampling  for  TV  Norge 

-  survey  for  the  others 

2.  Proportions  (%) 

Channel 

European  works 

Independent 

Recent  works  (RW 

(broadcaster) 

NRK  (NRK) 

TV2 (TV2  A/S) 

TV Norge  (TV 

Norge  A/S) 

(EW) 

1994 

80 

24.2 

21.3 

productions  (IP) 

1994 

13 

10.5 

9.2 

1994 

-

-

-

(B) Reasons  given  by Member  State  for  failure  to reach  proportion 

1. European  works 

'TV2  and  rTV Norge:  mainly  the  market  situation. 

The Norwegian  Ministry  of  Cultural  Affairs  considers  this  argument  inadequate. 

54 

(C) Measures  taken  or  envisaged  by Member  State 

-  Situation  to be  closely  monitored  by  the  Ministry  and  the National  Council  for  the  Media,  so 

that  broadcasters  comply  with  Articles  4  and  5. 

(D)  Remarks 

Recent  works 

-  The  report  states  that  none  of  the  broadcasters  surveyed  RW,  on  the  grounds  that,  with  the 

exception  of  some  cinema  films,  few  programmes  were  more  than  5 years  old. 

55 

COMMISSION  OPINION 

A. METHODOLOGY 

The previous  monitoring  exercise encountered  a number  of problems  due to  differences  in the  way 

the various national  reports were presented  and the lack of full  figures  concerning  European  works, 

independent  productions  and  recent  works.  There  was  also  little  in  the  reports  as  to  how  the 

information  in them  was  gathered  and  processed. 

In  order  to  facilitate  this  second  exercise,  the  Commission  supplied  the  Member  States  with  the 

updated  "Suggested guidelines for the monitoring of the TV without Frontiers Directive" (see above), 

and a matrix  for  the presentation  of data. The Commission is happy to report  that,  by and  large, the 

national  reports  are  now  fuller,  clearer  and  better  presented,  but  some  comments  are  still  in  order 

on four  of the main topics complicating the Commission's work, on which it reported  methodological 

difficulties  in  1993. 

1.  Survey  of  television  channels 

1.1  Jurisdiction 

Five of the  reports raise the question of which country's jurisdiction  a given broadcaster falls  under. 

Luxembourg  and  the  French  Community  in Belgium  both  report  RTL-TVi  as  falling  within  theirs, 

as was found  during the previous monitoring  exercise. Similarly, RTL Television is included  in both 
the Luxembourg  and German20  reports, while those from  both Sweden and the  United Kingdom  give 
data  for  TV  100021. 

20 

21 

It  is to  be  noted  that  the percentages  in the two  reports  are the  same  for  European  works  but  not  for 
independent  productions  (discrepancy  of  1% each  year). 
The proportions  for  European  works  in  1994 are different:  29.06%  in  the  Swedish  report  and  29.4% 
in  the  UK  one. 

56 

If a given broadcaster  is mentioned  in reports from  two  different  countries, this implies that  it  falls 

under  both their jurisdictions.  As the  Commission pointed  out  in  its previous  report,  these  are  real 

problems  of  conflict  of jurisdiction,  with  more  than  one  Member  State  claiming  it  over  the  same 

broadcaster.  This does  not  accord  with  the spirit of the Directive,  which  is that  only  one  state's law 

should apply.  The Commission takes the view that this is in part directly  due to the  1989 text of the 

Directive  not  being  clear  enough  as  to  the  criteria  for  deciding  where  a broadcaster  is  established. 

There  is  also the  matter  of  defining  what  constitutes  a  broadcaster. 

Although  rather  few  such  cases  arose  during  the period  covered  by  this  report,  the  Commission  is 
convinced  that  the  expansion  of  satellite  and  cable  networks22  is bound  to  throw  up  real  problems 

of jurisdiction  affecting  the  operability  of  national  regulations  systems and  hence  of  the  Directive 

itself,  unless  common  criteria  on  the  matter  are  identified  and  complied  with. 

This  is why,  in  its  proposal  of  March  1995  for  amending  Directive  89/552/EEC,  the  Commission 

strengthened  the  establishment  criterion,  on  the  basis of  the  case law  of the  Community's  Court  of 

Justice  concerning  free  movement  of  services, by  introducing  it  into  the  body  of  the  Directive,  so 

as to make  it easier to determine  which  Member  State has jurisdiction,  and at the same time  adding 

a  recital  containing  a  number  of  elements  enabling  the  concept  of  establishment  to  be  qualified  in 
the  specific  context  of  television  broadcasting23.  These  include  where  the  business  is  registered, 

where programming  decisions are  normally  taken,  and  also where  a significant  number  of  staff  are 

employed. 

22 

23 

In  1995  alone,  some  98  satellite  and  cable  television  channels  started  up  in  Europe  (European 
Audiovisual  Observatory,  1996 report). 
Op.  cit.,p.  28  et  seq. 

57 

1.2  Channels  covered 

The  purpose  of  the  monitoring  exercise  is  to  provide  the  Commission,  every  two  years,  with 

significant  data  for  the reference  period  as to the channels  covered,  i.e. all  except  local  ones which 

are  not  part  of  a  national  network  (Article  9  of  the  Directive)  and  those  essentially  thematic  ones 

dealing  with  the  excluded  subjects  (sport  and  news). Member  States  are thus  not  asked to  draw  up 

compete  lists of  broadcasters  and  channels  subject  to their  jurisdiction. 

For  the  sake  of  transparency,  however,  the  Commission  does think  that  reports  should  list  (as  the 

United Kingdom's  one  did)  all  the  channels put  out  by  broadcasters  subject  to  each Member  State's 

jurisdiction, together with enough information  to determine which of them are concerned by Articles 

4  and  5,  and  should  put  them  into  categories. 

Article  4(3) provides  that  figures  are to be  provided  "for  each  of the television programmes  falling 

within  the  jurisdiction  of  the  Member  States  concerned",  the  actual  obligations  being  on  the 

broadcasters. Two reports gave figures covering a number  of channels globally, which is not  strictly 

in  accordance  with  Article  4(3): 

-  the  Irish  report  as  regards  RTE  1 and Network  2; 

-  the  Swedish  report  as  regards  Filmset  Plus/The  Complete  Movie  Channel  and  Kanal  1/ TV  2. 

This  second  monitoring  exercise  also  points  up  a  problem  concerning  the  names  of  television 

channels which  has made the Commission's work more difficult.  Some national  reports  give  figures 

for  a channels  under  a different  name  from  that  used  for  the  1991/1992  report.  If  not  informed  by 

the  Member  States,  the  Commission  cannot  always  determine  whether  this  is a  change  of  name,  a 
new  abbreviation,  or  a  new  channel.24 

24 

The Luxembourg  report for  1991/1992, for  instance, refers to one channel  as "RTL Television",  while 
the  1993/1994  report  has two  channels  called  RTL  TV  "hertzien"  and  RTL  TV  "câblé". Unless  told, 
the Commission  cannot  say whether these are both two new channels  since  1991/1992 or whether  one 
of  them  (and  which)  is the  same  as  "RTL  Television"  in  the  first  exercise. 

58 

As this is an exercise to be carried out every two years, all channels should be sufficiently  fully  and 

clearly  reported  each  time.  The  Commission  is unhappy  that,  by  and  large,  too  little  or  indeed  no 

information  is provided  as to  the nature,  date  of  launch  or  status of  the  channels  reported. 

Specifically,  and not  exhaustively, the Commission notes the following  lacunae  in national  reports: 

-  Spain:  no  information  on  Cinemania  and  Documania; 

-  Italy:  no  information  on  Odeon  TV  and  RETE  A; 

-  Netherlands:  no  statistics on  Multichoice  NL. 

2.  Reference  period 

2.  1.  Coverage 

As  the reference  period  was two  consecutive  calendar  years, Member  States did  not have the  same 

problems in covering  it as in the previous exercise,when difficulties  arose because it covered  fifteen 

months,  from  October  1991 to  December  1992. Annual  data  for  calendar  years  (see point  6 of  the 

Guidelines)  would  thus  seem to  be the  best thing  for  regularly  returned  statistics. 

Although the point is not always specified  in this second series of reports, the Commission notes that 

the  most  usual  way  of  collecting  the  figures  was to  record  channel-by-channel  percentages  of total 
annual  broadcasting  time.25  Sampling,  however,  was used  in  a number  of  reports: 

- the report from  the Flemish  Community in Belgium indicated the sample for  1993 (the weeks  from 

4 to  10 January,  3 to  9 May, 6 to  12 September  an 4 to  10 October)  and  1994 (4 to 9 January,  2 to 

8  May,  5 to  11  September,  3 to  9  October); 

- the Netherlands  report stated that it had taken a representative sample of weeks, but drtfnot  specify 

which; 

- the Portuguese report used a sample of August  1993 and  1994 for recent works broadcast by public 

channels; 

-  the Swedish  report  specified  the  sample  for  ZTV  AB: spring  and  autumn  1994; 

25 

Where  the  method  is not  specified,  the  Commission  assumes  that  it  is by  annual  survey. 

59 

- the Finnish  report stated that the figures for recent and independent productions covered the period 

1  September  to  31  December  1994, 

- the Norwegian  report  said that the percentages for TV Norge were based on four weeks in the  four 

quarters  of  1994, but  did  not  specify  which. 

2.2 Statistical  base 

Very  little  was  said  in  most  of  the  reports  about  the  statistical  base,  that  is  the  categories  of 

programmes regarded  as "works" for the purposes of Articles 4 and 5. The Directive expressly refers 

to  "transmission time,  excluding  the time  appointed  to news,  sports events, games, advertising  and 
teletext  services".26 This amounts to a reverse definition,  i.e. of what is not regarded  as a work,  and 

percentages  are  calculated  on  the  time  remaining  after  that  devoted  to  programmes  of  the  five 

categories  above  has  been  deducted,  a  work  being  regarded  as  anything  not  falling  within  those 

categories.  Seven  reports  (Greece,  Italy,  Norway,  Flemish  Community  in Belgium,  Austria,  United 

Kingdom, Denmark, Luxembourg)  included  information  showing the base used to be as provided  for 

in the  Directive. 

This  aspect  is  also  affected  by  the  way  the  two  articles  as presently  worded  have  been  transposed 

into  each  Member  State's  legislation  (see point  B below).  Some  have  opted  for  the  definition  of a 

work  as  in  the  Directive  and  have  thus  taken  over  the  same  base  for  collecting  statistics,  whereas 
others  have  adopted  a  more  regulatory  approach27  by  themselves  giving  a  positive  definition  of  a 

television work which emphasizes some categories more than others, such as cinema films, teleplays 

or documentaries. This implies a policy choice to promote these works over others, the upshot being 

in  general  a narrower  base  than  in  the  Directive. 

26 

27 

See also point 3 of the "Suggested  guidelines for the monitoring  of the TV without  Frontiers  Directive 
(see  Annex  1). 
They  calculate  the  percentage  on  the  broadcasting  times  of  certain  programmes  which  they  consider 
to  be  works. 

60 

2.3  Non-slivback  clause 

Article  4(2)  of  the  Directive  requires  that,  where  a  majority  of  European  works  broadcast  is  not 

attained,  national  reports  should  indicate  the  average  for  1988  (or  1990  for  Greece  and  Portugal). 

In the  cases of  Luxembourg,  the United  Kingdom,  Spain,  Italy,  Belgium,  France,  Norway,Finland, 

Sweden,  Portugal  and  Germany,  some  channels  failed  to  reach  the  majority  proportion,  but  only 
three of them  (Flemish  and French Communities  in Belgium and Italy)28 gave the average for  1988. 

Again  the Commission must point out that it is hardly possible to monitor  the application  of  Article 

4(2) and countries' progress in broadcasting  European  works over  a significant  enough period  if the 

1988  average  is  not  given. 

3.Independent  producers 

3.1  Definition 

Gathering  figures  on  broadcasting  of  or  investment  in  independent  productions  (the  10%  rule  laid 

down  in  Article  5 of  the  Directive)  led  to  less difficulty  than  in  the  previous  monitoring  exercise, 

with the  reports  mostly  giving  more  statistics. The  Commission concludes  from  this that  point  5 of 

the  Guidelines  has  been  better  perceived  as  a general  framework  and  better  adapted  to the  specific 

characteristics  of  independent  television  production  in  the  various  countries.  The  television  scene 

varies  greatly  from  country  to  country,  as  do  the  effects  on  the  economics  of  production,  and  the 

Commission  remains  convinced  that  it  would  not  be  appropriate  to  adopt  any  one  cast-in-bronze 

definition  of what  an  "independent producer"  is, since the concept has to be flexible  if it is to  match 

the  real  situation  in  each  country. 

These  three  reports  give  the  1988  averages  already  given  in  the  first  reports,  for  1991/1992. 

61 

The national reports can be divided  into those which do refer to the definition  used (Ireland:  Section 

5 of the Broadcasting Authority  (Amendment) Act,  1993; Netherlands: Article 52k of the Decree on 

the  media;  Luxembourg:  Article  27  of  the  Law  of  27  July  1991  Denmark:  definition  taken  from 

company  law; France: Decree 90-67 of  17 January  1990; French Community  in Belgium; Germany: 

specific  definition  for  statistical  purposes,  Norway,  Sweden,  Greece,  Italy:  favour  a  harmonized 

definition)  and  those  which  make  no  mention  of  it  (Austria,  Flemish  Community  of  Belgium, 
Portugal,  Finland,  Spain,  United  Kingdom29). 

3.2.  Statistical  base 

Under Article 5, the Member States have discretion as to what the  10% rule is to be based on, either 

10%  of  transmission time,  excluding  the  time  allocated  to  news,  sports  events, games,  advertising 

and  teletext  services,  or  10%  of  the  programming  budget.  All  the  reports  give  figures  based  on 

broadcasting  time,  with  three  exceptions: 

- France: the report states that Decree 90-67 of  17 January  1990 applies to non-cable channels. This 

requires that they  order  a minimum  volume  of works, expressed  as a percentage  of turnover  (15  to 

20%  for  television  programmes,  3% for  cinema  films).  It  was  also  established  that  a  broadcaster's 

programming  budget  is  always  less than  his turnover:  between  50  and  80%, according  to  the  type 

of  programming.  As  regards  cable  channels,  the  Commission  notes  that  both  bases  were  used  in 

different  cases; 

- Sweden: according to the letter sent to the Swedish authorities by TV4, reproduced verbatim  in the 

report,  it  opted  for  the  programming  budget  base.  Its budget  amounted  to  some  SKR  500  million, 

of  which  more  than  half  was  accounted  for  by  European  works  by  independent  producers. 

-  Flemish  Community  in  Belgium:  the  report  specifically  says  that  "BRTN  complies  with  the 

10%-of-budget  limit". 

29 

The  United  Kingdom 
Productions)(Amendment)  Order  1995, No  1925, containing  the  definition  used. 

reported  a 

instrument, 

the  Broadcasting 

statutory 

(Independent 

62 

3.3  Recent  works 

These  reports  are  much  more  consistent  than  the  previous  ones  in  giving  the  proportion  of  recent 

works by  independent  producers, that  is, those broadcast within five years of production.  Only  five 

reports  fail  to  give  figures:  those  for  France  (which  does,  however,  state  that  the  figures  for 

independent  productions  also  cover  recent  works), Norway  (few  programmes  over  five  years  old), 

and  Sweden,  the  United  Kingdom  and  Italy  (no  comment). 

There was some uncertainty  as to the basis for the percentage  of recent works. In the  Commission's 

view the proportion  of recent  works cannot  exceed that of independent  productions, the basis being 

the same (transmission time  excluding  that allocated  to news, sports events, games, advertising and 

teletext services), but  for  almost all the channels covered  by the Portuguese  and German reports the 

figures for  recent  works  are higher  than those for  independent  productions. The  same goes for  four 

channels in the Greek report (ANT1, Mega Channel, Seven X, Sky) and two in Denmark (DR, TV2). 

This  remaining  unexplained,  the  Commission  cannot  deduce  whether  these  are  percentages  of  the 

proportion  reserved  for  independent  productions  or  whether  they  represent  the  totality  of  recent 

works  broadcast,  whether  or  not  independent  and  whether  or  not  European  within  the  meaning  of 

Article  6. 

4.  Channels  failing  to  reach  the  required  proportions 

Channels  failing  to  reach  the  proportions  laid  down  in  Articles  4  and  5  were  reported  by 

Luxembourg,  Belgium,  France,  Portugal,  Spain,  Italy,  Sweden,  Finland,  Norway,  the  United 

Kingdom  and  Germany.  Unlike  in  the  first  exercise,  most  of  the  reports  said  why  the  channels 

concerned  had  not  been  able to  comply  and reported  the measures taken  or planned  to induce them 

to do  so. The  Commission regrets that  no, or  only  some, such information  was given  i«-the  reports 

from  Sweden,  Italy,  Spain  and  the  two  language  communities  in  Belgium. 

63 

B  RESERVATIONS  ON  THE  COMMISSIONS  PART 

Before  setting out the overall  situation resulting from  the figures  reported by the Member  States, the 

Commission  considers  that  it  must  clarify  some  aspects  of  the  way  the  statistical  base  for  the 

obligations  imposed by Articles 4 and  5 has been transposed into national  legislation,  in view of the 

flexibility  and  progressiveness  for  which  they  provide. 

The  Commission would  also refer  here  to  some provisions  adopted  by Member  States  (which  may, 

under  Article  3(1)  of  the  Directive,  apply  more  detailed  or  stricter  rules  to  broadcasters  subject  to 
their  jurisdiction30)  to  encourage  the  broadcasting  of  programmes  in  a  given  language  or  a  given 

area.  The  aim  is not  only  to  facilitate  a better  interpretation  of the  figures  reported, 

but  also,  and  above  all,  to  sound  the  warning  bell  required  before  any  attempt  is  made  at  an 

economic  or  other  assessment  without  a thorough  examination  of  the  situation  as  a whole. 

30 Their  doing  so  does  not  prejudice  the  applicability  of  Article  59  of  the  EC  Treaty. 

64 

_ 

State of plav  in  transposai 

MEMBER  STATE 

Statistical  base 

Other  measure 

Legislation 

LUXEMBOURG 

=  Directive 

Article 27(1 )(4)  of  the  Law 

of 27.7.1991  on  the 

electronic  media 

IRELAND 

=  Directive 

Statutory  Instrument 

No 251  67  1991 

(Broadcasting  Act  1990) 

AUSTRIA 

=  Directive 

Rundfunkgesetz-Novelle 

1993  §2(b)  (BGBL  505/1993 

GERMANY 

Broadcasting  time  of 

Article  5 of  the  State  Treaty 

full-length  feature 

of  31.8.1991  on  broadcasting 

programmes,  games, series, 

documentaries  and  the  like 

DENMARK 

=  Directive 

Article  2  of  Order  100  of 

5.3.1993 

GREECE 

Total  broadcasting  time 

Article  4(1,5)  of 

(minus  news) 

Presidential  Decree  236  of 

10.7.1992 

65 

FRANCE 

Annual  broadcasting  time  of 

40% of  programmes  in 

Decrees  90-66  (Articles  4,  5, 

"audiovisual  works"31 

original  French 

7,  8)  and  95-77  of  24.1.1995 

(articles  6,12) 

BELGIUM  (French  Cty) 

=  Directive 

a proportion  (not  specified) 

Article  24bis  of  the  Decree 

of  17.7.1987  as amended  by 

the  Decree  of  19.7.1991. 

of  original  works  by  persons 

from  the  French  Community 

BELGIUM(Flemish  Cty) 

= Directive 

a proportion  (not  specified) 

Articles  16,17  of  Decree 

94/1494  of  4.5.1994 

of  Dutch-language_ 

ITALY 

Annual  broadcasting  time  of 

50% of  works  from  Italy  (of 

Article  26  of  Law  223  of 

cinema 

films 

the time  devoted  to  European 

6.8.1990 

works) 

NETHERLANDS  Article 

=  Directive 

40% of  programmes  in 

52/k/l  of  the  Order  of 

Dutch  or  Frisian 

22.6.1992 

SPAIN 

Articles  5(1,2)  and  6  of  Law 

25  of  12.7.1994 

Annual  broadcasting  time 

50% of  European  works 

originally  in  one  of  the 

languages  of  Spain 

UNITED  KINGDOM 

= Directive32 

adequate  proportion  of 

Annex  to  the  Royal  Charter 

and  Sections  16(2)(g/h), 

25(2)(e/f)  and  29(2)(f)  of  the 

1990 Broadcasting  Act 

British  (BBC)  and  European 

(Channels  3, 4,  5)jyorks 

31 

32 

"Audiovisual  works"  are defined  in Article  4  of  the  Decree: everything  apart from news,  teletext, 
advertising, teleshopping, own promotion, sport, varieties, games, broadcasts other than fiction mainly 
done on set, full-length  cinema films. Article defines a different  base for full-length  cinema films: the 
total number  of such films broadcast annually. 
The UK report specifies that the figures were gathered in accordance with the "Suggested Guidelines". 
The  1990 Act also lays down precise rules of origin  for S4C. 

66 

P O R T U G A LN 

=  Directive 

40% of  programmes  in 

Articles  19,  20  and  21  of 

Law  58/90  of  7.9.1990 

FINLAND 

Articles  10 and  12 of  Law 

92/1213  amending  the  Cable 

Transmission  Law 

Portuguese 

minimum  proportion  of 

Finnish programmes  (15 to 

50%) 

SWEDEN 

=  Directive  (for  satellite 

significant  proportion  of 

Article  13 of  the 

channels) 

programmes  in  Swedish  and 

programmes  with  Swedish 

performers  and  authors 

Broadcasting  Act  of 

17.12.1992  (applies  only  to 

satellite  TV:  bill  concerning 

conventional  and  cable  TV) 

C.  OVERALL  RESULT 

1. Channels  surveyed 

The  number  of  channels  identified  in the  national  reports was: 

-  118  in  1993; 

-  148  in  1994  (including  19 for  Sweden,  Finland,  Austria  and Norway). 

The  previous  monitoring  exercise  found  105  channels  in  1991/199233,  giving  an  increase  of  13 
channels  between  1992 and  1993, and  11 between  1991 and  199434, or  a total  of  24  between  1992 

and  1994 (ignoring  the  three  new Member  States and Norway,  which  were  taking  part  for  the  first 

time  with  figures  for  1994 only). 

33 

34 

See  p.  17  thereof. 
This  includes  TV3  Norway  and  TV3  Sweden  (see  also  the  UK  report),  which  were  running  in  1992, 
stopped  broadcasting  in  1993  and  resumed  in  1994. 

67 

2.  Comments 

2.1  Broadcasting  of European  works 

(a)  Communication  of  data  required 

All  the  reports  gave,  for  all  the  channels  reported,  figures  for  European  works  broadcast  over  the 

reference  period. 

(b)  Communication  of  reasons  for  some  channels  not  complying 

Most of the national reports state why  some channels did not achieve a majority  of European  works 

broadcast.  The Commission regrets that this was not so in the reports from  Spain, Italy  and (for  one 

channel,  TV4)  Sweden. 

(c)  The  figures  given 

Purely  quantitatively, the total number  of channels which reached the majority  proportion,  i.e.  50% 

or  more  of  European  works  broadcast  over  each  of  the two  reference  years, was: 

-  80 in  1993 

-  91  in  1994 (those  in  Sweden,  Norway,  Austria and  Finland  amounting  to  12). 

As regards both Article 4 and Article 5 (see below), the Commission does not consider that it should 

draw  any  interpretative  conclusions  from  these totals or make any comparative  analysis. There  are 

basic  differences  between  the  television  industries  of  the  different  countries  concerned,  not  only 

technically  and  organizationally  but  also  as regards their  options  and  objectives  and  the- regulatory 

principles  applied  in  implementing  Community  law. 

As regards the reports including channels which did not achieve the majority  proportion of European 

works, the  Commission  would  make  the  comments  set out  below. 

68 

' # • • • • -• 

Flemish  Community  in Belgium:  VTM, a private  cable channel, has been  making  constant  progress 

since  1992 and  in  1993/1994  it  exceeded  the  average  for  1988. With  TVI,  which  it  resembles  in 

being of general appeal, it accounts for  most of the audience Filmnet  Plus and The Complete Movie 

Channel  are paying  channels  concentrating  on  films. 

French  Community  in  Belgium:  Sport  21  put  its  situation  right  in  1994,  but  this  was  not  very 

significant  as  most  of  its  programmes  are  sport  and  thus  outside  the  scope  of  Articles  4  et  5. 

Canal  +,  a  paying  channel  concentrating, on  sport  and  cinema,  and  RTL-TVi,  a  private  general 

interest  channel,  both  exceeded  the  1988  average,  the  former  having  improved  on  its  1992  figure 
while  the  latter  fell  back:  it  accounted  for  over  50% of  viewers  in  1993/1994.35 

Germany: DSF and N-TV, broadcasting mainly sport and news, are not concerned  by Articles 4 and 

5.  There  is  no  problem  with  the  major  public  general-interest  channels.  RTL  has  improved  since 

1991,  as has  Premiere,  a  paying  thematic  (films)  channel.  On  the  other  hand,  SAT  1 and  PRO  7, 

covering almost all of Germany, with general-interest programming and lying third and fourth  in the 

ratings, are improving  only  slowly over  1991, with  SAT  1 even falling  back  slightly in  1994. Three 

channels  which  began  broadcasting  in  1993/1994  reported  for  the  first  time:  RTL  2,  a  private 

general-interest  channel, has national  coverage but a limited audience; KABEL  1 and VIVA TV are 

thematic  channels. 

Spain: there  is impressive progress for  all channels  compared  with the  1991  figures  in the  previous 

monitoring  exercise (there was already  a great improvement  in  1992). The  case of Antena  3, whose 

proportion  had fallen  back  since  1992, is not explained:  it is a private  general-interest  channel,  and 

one  of  the  major  national  stations,  with  ratings  almost  as  high  as  TVE-1  (between  20  and  30%). 

Canal+,  a paying  channel,  is  stationary. 

France:  All the major  general-interest  channels, which account  for  the  lion's  share of the  audience, 

whether  they  are  public  or  private,  paying  or  not,  are  well  in  excess  of  the  majority  proportion. 

Canal Jimmy  made progress  over  1991/1992, while  Cine-Cinéfil  stayed  still. They  are both  almost 

in  compliance.  Multivision  is  a  first  experiment  in  pay-per-view. 

35 

European  Audiovisual  Observatory's  1996  yearbook. 

69 

Italy:  Compared  with  1991/1992,  the  major  general-interest  channels  with  national  coverage, 

accounting  for  a  large  part  of  the  total  audience  (about  20%  between  them)  have  slipped  back 

(Italia  1)  or  remained  stationary  (Rete  4).  The  same  goes  for  Tele  MonteCarlo  and  Telepiu  1 

(paying),  which  both  cover  almost  the  whole  country  and  are  general-interest  channels  but  have 

fewer  viewers.  Their  percentages  are  below  the  1988  average. 

Luxembourg:  Although  since  1992  the percentages  achieved  by  Luxembourg  channels,  which  are 

all  private,  have  improved  somewhat,  the  overall  situation  is  still  that  most  of  them  are  having 

difficulty  in reaching  a majority  proportion, even though they are general-interest channels and have 

transnational  coverage.  The  main  reason  given  for  this  is the  cost  of  European  programmes. 

Portugal: 

The  arrival  on  the  Portuguese  market  of  two  new  private  broadcasters  with 

general-interest  programmes  considerably  modified  the  television  scene  in  1993/1994,  when  they 

accounted  for  50% of viewing.  This was the reason  for  Canal  l's percentage  in  1994, and for  those 

of  the  private  stations,  sharing  the  same  market. 

United Kingdom:  The four main national terrestrial stations, widi general-interest programming, still 

account  for  92%  of  the  audience  (see  UK  report).  On  average  over  the  two  reference  years  their 

programmes  were  over  60% European.  Because, among other things, of the way  in which  licences 

are awarded  in the UK, the report refers  to a large number  of satellite channels, many of which have 

not reached the majority  proportion.  The fact  is that these channels still have a limited audience (the 

BSkyB  range  having  the  largest  audience  growth  rate),  while  the  reasons  given  are  most  often  a 

recent  launch  date  and  the  cost  of  programmes  (thematic  channels). 

Sweden,  Finland,  Norway:  the  percentages,  covering  1994  only,  show  that  public  channels  easily 

reached  the  majority  proportion,  while  directly  competing  private  channels  (likewise with  national 

coverage,  general-interest  programming,  large  audience)  and  thematic  channels  did  not  do  so.  As 

regards  Sweden  and  Finland,  which  have  been  Member  States  since  1 January  1995,  as  also  for 

Austria,  the  Commission  would  point  out  that  it  is  continuing  its  examination  of  transposai  into 

national  law. 

70 

The  Commission notes  that,  by and  large, general-interest  terrestrial  channels, and  in particular  the 

public  ones  which  have  been  in  existence  for  many  years  now,  have  no  difficulty  in  attaining  a 

majority  proportion  of  European  works,  and  that  home-produced  works  account  for  a  fairly  large 

share, whether  this  is because  of  specific  regulations  adopted  in compliance  with  Community  law, 

the  implementation  of  schemes  of  national  aid  for  television  and  cinema  production,  or  audience 

preference. 

Satellite  channels' difficulties  in  reaching  the  majority  proportion  are mostly  due to  one  or  both  of 

two factors:  the date the channel  was  launched  or the nature  of  its main type  of programme.  All 

the  reasons  put  forward  in  the  reports  concerned  boil  down  to  one  or  the  other,  as  a  result  of  the 

blanket  application  of  the  Directive  to  all  television  channels.  They  include  a  channel's  financial 

possibilities  and 

the  subject  matter  of  its  programmes,  which  determine  what  supply  there  is  of 

suitable  European  programmes  offering  a  cost/audience  ratio  which  is  sufficiently  profitable  and 

equivalent  to  that  of  similar  non-European  (mainly  American)  programmes. 

2.2.  Independent  and  recent  productions 

(a)  Communication  of  required  data 

Most  of  the  reports  give  full  data  for  most  of  the  channels  they  list  regarding  the  proportion  of 

independent  productions.  Five  of  them  are  incomplete  in this  respect: 

Flemish  Community  in  Belgium:  The  Complete  Movie  Channel; 

Italy:  Telepiu  1, 2  and  3; 

Sweden:  TV  1000; 

United  Kingdom:  Bravo  (1994)  and  Sky  Soap; 

Netherlands:  Multichoice  NL. 

The table below  shows the situation  regarding the broadcasting  of  an adequate proportion  of  recent 

works  from  independent  producers. 

71 

No  figures  given 

Figures  given  for  all  channels  Some  figures  missing 

France 

Italy 

Sweden 

Norway 

reported 

Spain 

Ireland 

Netherlands 

Portugal 

Austria 

Finland 

Belgium  (both  Communities) 

Luxembourg 

United  Kingdom 

Germany 

Greece 

Denmark 

(b)  Reporting  of  reasons  for  some channels  not  complying 

-  Regrettably,  little in the way  of reasons is given in the reports for  some channels not reaching  the 

proportion  of  independent  productions.  There  is  nothing  on  this  in  the  Spanish  and  Norwegian 

reports, and practically  nothing  in the  United  Kingdom  one. 

-  As  regards  reports  in  which  information  concerning  recent  works  is  missing,  the  situation  is  as 

follows: 

. Flemish Community in Belgium:  nothing concerning The Complete Movie Channel, no explanation 

given; 

.  United Kingdom:  figures  given  for  11 channels, no  explanation  for  missing  figures; 

.  Sweden,  Italy:  no  explanation  for  lack  of  figures; 

.  Germany:  no  figures  for  Premiere; 

.  Denmark:  no  figures  for  DR; 

.  Greece:  no  figures  for  ET1  (1993); 

.  France,  Norway,  French  Community  in Belgium  (for  one  channel,  Canal+), Luxembourg  (for  one 

channel,  RTL  TV):  the  reports  state  that  the  proportion  is  complied  with  de jure  {France)  or  de 

facto. 

72 

(c)  Figures  supplied 

The total number  of channels reported as complying  with the  10% rule for  independent  productions 

is: 

-  87 in  1993; 

-  119 in  1994,  including  16 for Norway, Sweden, Austria  and Finland. 

As regards the reports listing non-complying channels, the Commission has the following  comments: 

Flemish Community in Belgium:  no explanation  given  for  TVI; 

Germany: 

no  explanation  given  for  RTL  2  and  VIVA  TV,  the  figures  being  well  below  10%, 

although  both  channels  are  recent; 

Spain:  no  explanations  are  given  for  ETB-2,  TV-3  and  TV-33,  whose  figures  are  worse  than  in 

1991/1992,  while  they  are  not  recent  channels.  The  figures  for  ANT-3  and  TVG  improved  from 

1993 to  1994. 

Italy:  apart  from  BETA  TV,  all channels  are down compared with  1991/1992  and  below the  10% 

limit.  For  Tele  MonteCarlo,  the  proportion  rose  from  1993  to  1994.  The  situation  in  Italy  is  a 

somewhat marginal one, largely because there is no definition  of an "independent production"  which 

is applied  across the  board. 

Portugal:  TVI,  a recently  established channel, has had to rely on its own productions, for  financial 

reasons. 

United Kingdom:  most  channels,  including  the major  terrestrial  ones, reached  or  greatly  exceeded 

the  10% proportion.  In  addition, the  1993 situation was corrected  in  1994 by  The Movie  Channel, 

Sky  Movies, TNT,  and  The  Family  Channel.  Generally  speaking,  the  10% target,  already  reached 

at  the  time  of  the  previous  monitoring  exercise,  should  raise  no  major  problems,  except  for  some 

73 

satellite  channels  started  up  by  companies  with  large  libraries  of  programmes  accounting  for  most 

of  their  programming  (such  as  The  Cartoon Network). 

Finland.  Norway:  this  first  survey  shows that there  should be no particular  problems  over the next 

few  years. 

-  The  Commission  reaffirms  its  commitment  to  the  objectives  of  Article  5, that  is, promoting  the 

development  of  a  secondary  market  for  commercial  exploitation  of  productions,  so  improving  the 

market prospects  for  independent  producers, and  encouraging  investment  in new productions.  The 

results  were  much  better  than  in  1991/1992,  and  things  should  continue  to  improve  in  the  future, 

given  the  continued  expansion  of  the  television  sector  in  Europe:  the  rising  number  of  television 

channels  will  lead  to  greater  demand  for  programmes, which  should  include  many  new  ones,  since 

many  of  the  figures  reported  for  recent  works  in  this  report  for  1993/1994  are  as  high  as  for 

independent  productions. 

-  The  Commission deduces  from  the  information  provided  that the channels  which  did not  achieve 

the  proportion  laid  down  are  those  which  have  financial  difficulties  because  they  were  launched 

recently,  have  specific  programming  features  or  belong  to  owners  of  existing  libraries.  They  find 

themselves obliged,  for  a time, to broadcast their own programmes.  In the  Commission's view,  the 

low proportion  required  and the  choice which Article  5 gives between broadcasting  and  investment 

should  enable  all  channels  to  move  up  and  achieve  the  target. 

D.  CONSIDERATIONS 

These  results  lead  the  Commission  to  the  following  conclusions: 

— 

-  the number  of  channels  concerned  by  Articles  4 and  5 rose  as compared  with  1991/1992; 

-  in  strictly  quantitative  terms, there  was  an  appreciable  improvement  overall. 

74 

This,  however,  should  not  be  interpreted  as  either  proving  or  disproving  the  effectiveness  or  the 

economic  impact  of Articles  4 and  5 on the development  of the European  television  industry.  The 

use  in  them  of  the  expressions  "where  practicable"  and  "progressively"  bears  witness  to  the 

flexibility  which is built into a system currently applying across the board to all television channels, 
both general-interest terrestrial ones and thematic satellite ones36, whatever their nature and whatever 

the  individual  situations  in the  particular  Member  States.  This means  that  the  extent  to  which  the 

arrangements are being  implemented  varies between Member  States.  Nonetheless, as provisions of 
a  Community  Directive,  Articles  4 and  5 are  legally  binding.37 

This  situation  is a natural  consequence  of the very nature  of Articles 4  and  5.  They  provide  what 

amounts  to the  minimum  coordination  of  the  various national  rules  which  is needed  to  ensure  free 

movement in television broadcasting (since those Member States which so desire can impose  further 

requirements  on  their  own  broadcasters), but  do not  in  themselves  make  it possible  to  achieve  the 

objective  of  strengthening  European  television  broadcasting,  to  the  same  extent  as  a  watertight, 

blanket  system. 

The  Commission  thus  does  not  consider  it  reasonable  to  try  to  show  any  direct  and  definite  link 

between  the proportions  achieved  and the implementation  of the system as laid down  in the  current 

text  of  the  Directive.  Definite  conclusions  can  be  drawn  only  where  the  proportions  are  enforced 

compulsorily  and  across the  board. 

-  This  comment  must  be  accompanied  by  reservations  as to  the  way  in  which  the  Member  States 

have defined  in their domestic legislation the statistical bases on which the proportions are calculated 

(see point  B.). 

36 

37 

The Commission's  proposal for amending the Directive is intended to give greater legal certainty to 
Articles 4 and 5 by deleting the expression  "where practicable" and making the option of investment 
in European works available for channels whose nature or subject matter make it difficult  for them to 
comply with a broadcasting  obligation. 
See footnote  7.  There is a duty of behaviour. 

75 

In  view  of  all  the  above,  the  Commission  considers  that  it  would  be  very  risky  to  try  to  make  an 

economic  assessment  on  the  basis  of  the  raw  figures  reported  by  the  Member  States  for  the  two 

monitoring exercises, that is, by comparing percentages which are for  the most part not  comparable 

and  ignoring  the  overall  context  of  other  measures  to  develop  the  television  and  cinema  industry, 

such as national  aid  for  cinema  and  television  or the  rules  on mergers  and  concentrations. 

This is why the Commission is carrying  out other, parallel  studies taking  account  of the  situation as 

a  whole  and the  nature  of  the  various  existing  instruments. 

The Commission would  point out that the two  Community provisions concerning  the  broadcasting 

of  European  and  independent  works  are  an  integral  part  of the  "European  audiovisual  area"  which 

is an aim of  the  Treaty  and  is materialized  in the  Directive.  In the table  concerning  the  transposai 

into  domestic  legislation  of  the  statistical  base  (see  point  B.  above),  mention  is  made  of  any 

provisions  to  encourage  the  broadcasting  of  programmes  made  in  a  given  language  or  produced 

"locally".  Without  some  minimum  coordination  at Community  level,  as at present provided  for  in 

Articles  4  and  5,  such  measures  would  be  likely  to  constitute  obstacles  to  the  free  movement  of 

television  services  and  thus  contravene  Article  59 of  the  Treaty. 

In  view  of  the  development  of  television  broadcasting  and  of  the  single  market  itself,  the 

Commission would  stress the importance  of reconciling  the two  objectives  of  increasing  the  supply 

offered  by European  television channels and developing Europe's television and cinema  production, 

by  establishing  a regulatory  framework  which  is sufficiently  certain  and  sufficiently  flexible. 

76 

E.  CONCLUSION 

(a)  Reporting  of  figures 

The Commission considers that the Member States have made significant  efforts,  in comparison with 

the  previous  exercise,  to  supply  all  the  statistics  required,  in  particular  the  figures  for  recent  and 

independent  productions.  The  few  exceptions are  isolated  cases indeed.  The  Commission  intends 

to  ask the  authorities  concerned  to  make  good  the  gaps. 

(b)  Explanations  given  and  measures  planned 

Again the Commission considers that  a general  effort  has been made to  supply  it with  explanations 

for  any  failure  of  channels  to  comply  with  the  required  proportions.  It  is on  the  other  hand  to  be 

regretted  that  Member  States  have  not  always  given  fuller  of  more  detailed  accounts  of  measures 

adopted  or  considered  to  attain  targets. 

(c)  Action 

In  assessing how the proportions  laid  down  have been  complied  with,  the  Commission will,  where 

there  is failure,  take account  of the specific  situation of the broadcasters concerned,  that  is, whether 

compliance is practicable  given the nature of the channels, progressivity, the average proportions  for 

all  a broadcaster's  channels,  and  its  level  of  investment  in  European  works. 

In  that  it  shows  it  to  be  perfectly  feasible  to  collect  such  figures  at  Union  level,  in  a  regular  and 

organized  manner  for  all channels, the Commission is satisfied  with this second monitoring  exercise 

as  part  of  an  ongoing  process.  However,  it  reserves  the  right  to  take  steps  against ttny  Member 

States  not  fulfilling  their  obligations  under  Articles  4 and  5,  as it has  done  in the  past. 

77 

ADDENDUM 

MULTICHOICE (NL) 

E  W 

I  W 

R  W 

1993. 

29,6% 

1994 

24% 

1993 

51,4% 

1994 

68% 

1993 

75% 

1994 

75% 

=F 

ANNEX  1 

W 

SUGGESTED  GUIDELINES  FOR  THE  MONITORING  OF THE  TV  WITHOUT  FRONTIERS 
DIRECTIVE 

Introduction 

The  following  guidelines  have  been  prepared.to  assist  Member  States  in  their  duty  to  monitor  the 
application  of Articles 4 and 5 of the Council Directive (89/552/EEC)  on television  without frontiers and 
to render transparent to all  interested parties-thé manner in which this  legislation  will  be  implemented by 
the  Commission. 

Suggested  definitions  to  be  applied  by  Member  States  in  their  monitoring  of  Articles  4  and  5  of  the 
Directive  are  given  below. 

L_ 

A  television  broadcaster 

The  definition  of  a  television  broadcaster  includes  each  Channel it  operates. 

Local  television  broadcasters  not  forming  part  of  a  national  network  are  excluded  from  the  monitoring 
aspects  of  the  Directive. 

2. 

Jurisdiction  over  broadcasters 

If a broadcaster is established  in a Member State, then  it falls  under the jurisdiction  of that  Member  State. 

Establishment serves as a basis for defining  both the origin of a broadcaster and of a programme. The place 
of establishment in the Community can be taken to mean that Member State where the broadcaster has fixed 
premises and  a viable  economic  activity,  for  example, the place where  the broadcaster's  headquarters  are 
based, assuming the management and a meaningful  proportion  of staff  involved  in  both  the preparation  of 
programming  schedules  and  commercial  operations  are  located  here. 

3; 

Relevant  transmission  time  on  which  quotas  are  calculated 

Programme transmission  time, within the meaning of Article 4(1) is a channel's  total  transmission time, the 
test card excluded,  less the time reserved  for  news, the retransmission  of sports  events, games,  advertising 
and  teletext  services. 

4. 

European  works 

This  is  clearly  defined  in  Article  6  of  the  Directive. 

For the  purposes  of Article  6(2) a" producer  is  considered  established  in  a European  State  if the co*»pany 
is a going concern  which  has a permanent  staff  involved  in both production  and  commercial  operations  at 
the  European  location. 

With  respect  to  Article  6(3)  and  (4)  which  refers  to  "works  which  are  mainly  made  with  authors  and 
workers residing in one or more European states", and in'ordcr to cope with borderline co-production  cases, 
the rule of thumb is that over  50% of both creative  arid management staff'and  other  production  staff  must 
be  European  residents. 

5. 

Independence 

Producers witli broadcasting  interests will only be considered as independent producers  if (heir  broadcasting 
interests  do  not  represent  their  principal  activity. 

lo 

With  reference  to  Article  5,  it  is  suggested  that  a  producer  should  be  considered  independent  of  a 
broadcaster,  if: 

~ 

one  broadcaster  does  not  hold  more  than  25% of  the  producer's  equity,  or  50%  in  the  case  of 
several broadcasters. In this case, broadcasters mean the organization as a whole and not individual 
channels  operated  by  the  same  broadcaster; 

a  maximum  of  90%  of  a  producer's  output  over  a  three-year  period  is  furnished  to  one 
broadcaster, except where the producer makes only one programme or series during.the  reference 
period. 

The  above  criteria  should  also  be  applicable  in  reverse  (as where  a producer  has  a  significant  stake  in a 
broadcasting  company). 

The industry is strongly urged to introduce an independent certification scheme for independent productions 
in  order  to  facilitate  the  implementation  of  quotas  and  the  monitoring process. 

6. 

Reporting  period 

Article 4(3) requires Member States to submit a monitoring report to the Commission on the implementation 
of  Articles  4  and  5. 

The  second  monitoring report  should  include  data  for  1993 and  1994  (January  to  December). 

On the basis of these reports the Commission  is required  to present  a report and an  opinion to the  Council 
and  Parliament. 

7. 

Data  collection 

Statistics,  expressed  in  hours  and  percentages,  must  cover  the  channels  of  all  broadcasters  und^r  the 
jurisdiction of the Member State during the reporting period, irrespective of whether they are new or theme 
channels. 

Member  States  must submit  annual  statistics  for  each  channel  separately  and  not  for  each  broadcaster. 

We suggest that the Member States use the definitions  provided by the Commission  in order to  ensure  the 
compatibility  of national  reports. 

If Member States use definitions other than those given above, the monitoring report should include details 
of  the  definitions  used  and  how  they  differ  from  those  given  above,  and  also, where  possible,  how  they 
affect  the  resulting  data. 

Where broadcasters can code their programmes according  to the abovementioned definitions,  they  should 
be advised to apply data recording systems in such a way that comprehensive statistics for the entire annual 
schedule  can  be  collected. 

If the  authorities  are satisfied  that a derogation  from  comprehensive  reporting  is justified  in the  reference 
period,  then  a detailed  description  of the  broadcaster's  sampling procedure  and  basis  of  estimates  should 
be submitted  for  consideration  to the  Commission.  Samples  should  consist  of  at  least  one  week  (chosen 
at  random)  per  quarter  of  the  reporting  period. 

fl 

ANNEX  2 

? 

PART  1 

EVOLUTION OF NUMBERS OF CHANNELS FOR THE PERIOD 
1992/1994 

fT> 

PART  2 

ANNUAL  NATIONAL  TABLES  1992/1993/1994 

-  EUROPEAN  WORKS  (EW) 
-  INDEPENDENT  PRODUCTIONS  (IP) 
-  RECENT  WORKS  (RW) 

*r 

BELGIQUE (COMMUNAUTE FLAMANDE) 
Période : 1er octobre 1991 au 31 décembre 1992 

,00  "  -  , 

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|

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ESPAGNE Période : 1993 

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.- .JJAlilE Période,: 1991-1992 

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PERFORMANCE 

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NICKELODEON 

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PERFORMANCE 

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PERFORMANCE 

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ê< NORVÈGE Période : 1994 

PART  3 

BROADCASTING  OF EUROPEAN  WORKS  (EW) FOR  THE  PERIOD 
1992/1994 

» l> 

BELGIQUE (COMMUNAUTE FLAMANDE)  : OE 1992 -1994 

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BOE  1994 

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(TV2) 

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è ^ f ^ S M^ 

FRANÇAISE) : ÔE 1992 -1994 

' ^7 DANEMARK : OE 1992 -1994 

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CANAL-33 

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PARIS  PREMIERE 

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ROYAUME-UNI  OE  Période  1992-1994  (Partie  2) 

ROYAUME-UNI  OE Période  1993-1994 (Partie 3) 

ANNEX 3 

/Vf 

LIST  OF  CHANNELS  NOT  ACHIEVING 

A  MAJORITY  OF  EUROPEAN  WORKS 

Percentage  by  which  51%  not  achieved. 

Abbreviations 

C  =  in  compliance 

A  =  figures  absent 

(bas) =  channel  which  is part  of  a basic  service  for  a cable  network  or  satellite  service. 

Country 

Channel 

Ownership 

Belgium 

RTL-TVi 

private 

(French  Cty) 

Canal+ 

private/paying 

Belgium 

VTM 

private 

(Flemish  Cty) 

Filmnet Plus 

private/paying 

Average 

shortfall 

Programming 

93 

6.4 

5.5 

8 

25 

94 

2.2 

4.3 

6 

27 

general 

general 

general 

thematic/films 

The  Complete 

private/paying 

33.5 

36.4 

thematic/films 

Movie  Channel 

Spain 

Canal+ 

ANT-3 

private/paying 

private 

France 

Canal  Jimmy 

private/(bas) 

Multivision 

private/PPV 

Ciné-cinéfil 

private/paying 

Portugal 

Canal  1 

SIC 

TVI 

public 

private 

private 

10 

3 

1.3 

C 

C 

20 

35 

9 

general 

2 

general 

3.2 

thematic 

6 

2.3 

thematic/films 

6 

18 

33 

general 

general-

general 

^s 

Sweden 

TV4 

TV 1000 

private 

private/paying 

Filmnet/The 

private/paying 

Complete Movie 

Channel 

2 

general 

22 

thematic/films 

48 

thematic/films 

Finland 

MTV 3 

Norway 

TV2 

Italy 

TV Norge 

Italia 1 

Rete 4 

TBS 

private 

private 

private 

private 

private 

TeleMontecarlo 

private 

4.1 

general 

26.8 

general 

29.7 

general 

general 

general 

14.5 

10.7 

11.1 

9.1 

general 

13.3 

10.8 

11 

10 

Telepiu 1 

private/paying 

11.8 

16.6 

thematic/films 

Luxembourg 

RTL4 

RTL5 

RTL  TVi 

RTL  TV  (H) 

private 

private 

private 

private 

Netherlands 

Multichoice NL 

private 

Germany 

KABEL 1 

PRO  7 

RTL  2 

SAT 1 

VIVA  TV 

private 

private 

private 

private 

private 

5.7 

22.8 

6.41 

7.92 

A 

38.8 

11.6 

13 

C 

9.9 

general 

19.4 

general 

2.23 

general 

C 

general 

A 

thematic/films 

35.9 

thematic 

7.8 

14.9 

3.9 

9 

thematic/films 

general 

general 

thematkr 

'V  c 

United 

Kingdom 

The  Adult 

private/paying 

12.8 

10.9 

thematic 

Channel 

Bravo 

private/paying 

17.8 

5.9 

thematic/films 

The  Cartoon 

private/(bas) 

49.3 

thematic 

Network 

The  Discovery 

private/(bas) 

C 

2.9 

thematic 

Channel 

The  Family 

private/(bas) 

35.5 

23.1 

thematic 

Channel 

HVC 

TV  1000 

TV  3  DK 

TV  3  N 

TV  3 S 

Vision 

Travel 

TNT 

TCC 

Sky  Travel 

Sky  Soap 

Sky  One 

Sky  Movies 

The  Movie 

Channel 

private 

private/paying 

private 

private 

private 

private 

private 

28.9 

28.7 

25 

36.3 

21.6 

19.3 

23.2 

11.6 

18.1 

15 

private/(bas) 

private/paying 

private/(bas) 

private/(bas) 

private/(bas) 

private/paying 

private/paying 

44.6 

C 

38 

34.2 

38 

9.6 

40.1 

5 

19.6 

45.1 

36.5 

27.3 

34.7 

thematic 

thematic/films 

general 

general 

general 

thematic 

thematic 

thematic/films 

thematic 

thematic 

thematic 

general 

thematic/films 

thematic/films 

Sky  Movies 

private/paying 

35.6 

34.3 

thematiç/films 

Gold 

NBC  Super 

private 

C 

9.1 

general 

Channel 

Nickelodeon 

private/paying 

24.6 

26.6 

thematic 

"^ 

ANNEX 4 

vr 

CHANNELS NOT ACHIEVING THE TARGET FOR 
INDEPENDENT PRODUCTIONS 

Percentage  by  which  10% not  achieved. 

Abbreviations 

C.=  in  compliance 

A =  figures  absent 

(bas) =  channel  which  is part  of  a basic  service  for  a cable  network  or  satellite  service. 

Country 

Channel 

Ownership 

Belgium 

TV  1 

public 

(Flemish  Cty) 

The  Complete 

private 

Movie  Channel 

Average 

shortfall 

93 

1.8 

A 

Programming 

94 

1.1 

general 

A 

thematic/films 

Germany 

RTL  2 

Spain 

VIVA  TV 

ANT-3 

ETB-2 

TV-3 

TV-33 

TVG 

private 

private 

private 

public 

public 

public 

public 

9 

7.8 

general 

8.5 

thematic 

C 

general 

6.5 

general 

8.07 

general 

4.8 

general 

C 

general 

2.4 

3.7 

8.66 

5.8 

0.5 

M 

Italy 

RAI  1 

RAI  2 

RAI  3 

Canale 5 

Italia 1 

Rete4 

public 

public 

public 

private 

private 

private 

TeleMonteCarlo 

private 

Telepiu 1 

Telepiu  2 

Telepiu 3 

private/paying 

private/paying 

private/paying 

2.85 

4.6 

2.97 

10 

10 

10 

0.55 

A 

A 

A 

1.34 

general 

6.63 

general 

2.38 

general 

10 

general 

10 

10 

C 

A 

A 

A 

general 

general 

general 

thematic/films 

thematic 

thematic 

Luxembourg 

Hei  Elei 

. private 

8.1 

C 

general 

Netherlands 

Multichoice NL 

private/paying 

Portugal 

TVI 

private 

United 

Kingdom 

BBC  World 

public 

A 

6 

C 

A 

thematic/films 

5 

general 

1 

general 

Service 

Bravo 

private/paying 

8.5 

A 

thematic/films 

The  Cartoon 

private/(bas) 

8.3 

thematic 

Network 

The  Family 

private/(bas) 

4.6 

C 

thematic 

Channel 

HVC 

TNT 

Sky  Soap 

Sky  One 

private 

private 

private/(bas) 

private/(bas) 

Sky  Movies 

private/paying 

The  Movie 

private/paying 

Channel 

0.3 

3.6 

4.5 

2.6 

1 

7 

C 

thematic 

thematic 

A 

thematic 

1.5 

general 

C 

thematic/films 

C 

thematic/films 

Sweden 

TV  1000 

private/paying 

A 

thematic/films 

so 

Finland 

Norway 

TV  1 

public 

TV  Norge 

private 

3 

general 

0.8 

general 

r< 

ISSN 0254-1475 

COM(96) 302 final 

DOCUMENTS 

EN 

16 

Catalogue number  :  CB-CO-96-3l2rEN-C 

ISBN 92-78-05809-2 

Office  for Official  Publications of the European  Communities 

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