Fourth report from the Commission to the Council, the European Parliament, the European Economic and Social Committee and the Committee of the Regions on the application of Directive 89/552/EEC "Television without Frontiers"
Date: 2003-01-06
Institutions: European Commission
Subjects: application of EU law, audiovisual communications policy, economic analysis, programmes industry, report, television

COMMISSION OF THE EUROPEAN COMMUNITIES

Brussels, 6.1.2003
COM(2002) 778 final

FOURTH REPORT FROM THE COMMISSION TO THE COUNCIL, THE
EUROPEAN PARLIAMENT, THE EUROPEAN ECONOMIC AND SOCIAL
COMMITTEE AND THE COMMITTEE OF THE REGIONS

on the application of Directive 89/552/EEC "Television without Frontiers"

FOURTH REPORT FROM THE COMMISSION TO THE COUNCIL, THE
EUROPEAN PARLIAMENT, THE EUROPEAN ECONOMIC AND SOCIAL
COMMITTEE AND THE COMMITTEE OF THE REGIONS

on the application of Directive 89/552/EEC "Television without Frontiers"

1.

1.1.

1.2.

1.3

2.

3.

3.1.

3.2.

3.3.

3.4.

3.5.

3.6.

3.7.

4.

4.1.

4.2.

5.

TABLE OF CONTENTS

Introduction.................................................................................................................. 3

Background of this report ............................................................................................ 3

Development of the television market in Europe (2000-2002).................................... 4

Independent study ........................................................................................................ 7

State of play in implementing the directive ................................................................. 7

Application of the Directive......................................................................................... 8

Main principles ............................................................................................................ 8

Jurisdiction ................................................................................................................... 8

Events of major importance for society (Article 3a).................................................... 9

Promotion of distribution and production of television programmes ........................ 10

The application of the rules on advertising (Articles 10 to 20).................................. 12

Protection of minors and public order (Articles 2a, 22 and 22a) ............................... 15

Coordination between national authorities and the Commission............................... 16

International Aspects.................................................................................................. 17

Enlargement: Analysis of audiovisual legislation in the Candidate Countries .......... 17

Cooperation with the Council of Europe ................................................................... 18

Conclusions and Prospects......................................................................................... 18

Annex : Work programme for the review of the
“Television without Frontiers” directive and time table of future actions................. 21

2

1.

INTRODUCTION

1.1.

Background of this report

By means of this Communication the Commission is submitting to the European Parliament,
the Council and the Economic and Social Committee the fourth report on the  application of
Directive  89/552/EEC1,  as  amended  by  Directive  97/36/EC2,  "Television  without  Frontiers"
(referred to below as 'the Directive').

Article  26  of  the  Directive  provides  that,  not  later  than  31  December  2000,  and  every  two
years  thereafter,  the  Commission  must  submit  to  the  European  Parliament,  the  Council  and
the Economic and Social Committee a report on the application of the Directive as amended
and,  where  appropriate,  make  further  proposals  to  adapt  it  to  developments  in  the  field  of
television broadcasting, in particular in the light of recent technological developments.

This report follows the Third Report3 that was published at the end of the year 2000 and deals
with the application of the Directive in the years 2001 and 2002.

The report describes and analyses the salient facts relating to the application of the Directive
during the reference period. These cover, in particular, the application of Article 3a on events
of major importance for society, the application of the rules on protection of minors and of the
rules on  advertising,  coordination  between  the  national  authorities  and  the  Commission  and
an analysis of audiovisual legislation in the applicant countries wishing to join the European
Union. Furthermore, it should be noted that, the Commission in keeping with Article 4(3) of
the  Directive  published  a  separate  report  on  the  application  of  Articles  4  and  5  of  the
Directive4. Point 3.4. of this report outlines the separate report's main conclusions regarding
Articles 4 and 5 (promotion of distribution and production of television programmes) of the
Directive.

In an annex to the report the Commission proposes a work programme to open a debate on the
possible need to adjust the regulatory framework because of the developments in markets and
technologies. This debate will be forum-driven and concentrate on a number of horizontal and
specific  questions.  The  purpose  of  this  exercise  is  to  provide  the  Commission  with  the
necessary input to evaluate the need to update or adapt the present regulations. Depending on
the results of this consultative process, the Commission will assess the need to propose more
coherent  measures  to  reinforce  European  audiovisual  policy  to  the  Community  legislator,
taking  also  full  account  of  the  objective  of  creating  a  pro-competitive  and  growth  oriented
environment for the development of the audiovisual sector5.

1

2

3

4

5

OJ L 298/23, 17.10.1989
OJ L 202/60, 30.07.1997
COM(2001) 9 final
COM(2002)612 final
According to the Commission’s long-term objective set out by the Lisbon European Summit of making
the Union the world’s most competitive, knowledge-based economy.

3

                                                
1.2.

Development of the television market in Europe (2000-2002)6

The industry

During  the  years  2001-2002  the  favourable  trend  that  characterised  the  development  of  the
EU television industry  at the  end  of  the past  century  seems to have  reached  a  turning  point
where  business  models  face  hard  tests  and  most  operators  have  to  carry  out  a  profound  re-
assessment of their investment plans for both content and infrastructures.

The number of available channels, which is  an indicator of both the  economic health of the
television  sector  and  the  benefit  in  terms  of  choice  of  content  for  the  consumer,  clearly
reflects the uncertainty characterising the underlining trend of this industry. At the beginning
of  2001,  over  660  channels  with  potential  national  coverage  were  broadcast  in  the  EU  via
terrestrial, satellite or cable means. This represents a healthy increase of over 25% compared
to the relevant data of the previous year. Over the same period, investments continued to grow
in the relatively marginal - from the point of view of mass audience - sector of channels with
no analogue terrestrial transmission (+ 30%).

There  has  been  a  significant  increase  in  the  number  of  channels  transmitted  across  the  EU
territory.  Many  channels  are  regularly  broadcast  over  more  than  one  type  of  transmission
infrastructure  and  are  often  received  in  more  than  one  EU  country,  mainly  via  satellite.
Moreover,  a  growing  number  of  channels  available  in  certain  markets,  notably  the  smaller
ones,  are  actually  originated  in  other  countries.  At  the  beginning  of  2001,  in  the  EU  there
were 68 channels of this kind (+13 % compared to the relevant data of the previous year).

The  growing  number  of  available  channels  was  coupled  with  a  parallel  2/3  increase  in  the
number of digital packages proposed to the public. At the beginning of 2001 the development
of this form of technical and commercial delivery of TV Programmes covered almost all EU
markets. The success of digital broadcasting relies largely on satellite infrastructures since the
launch of Digital Terrestrial television did not encounter a  quick  positive  response  from  the
public. According to recent surveys, only about 1.5 million households7 were connected at the
end of 2001 via a set-top-box to DTT broadcasters in Spain, Sweden, Finland and the United
Kingdom, the country where the largest number of connections are operational. At the same
time, EU wide digital TV reception via satellite concerned over 19 million households, while
3 million households received digital signal via cable connections. The overall penetration of
digital broadcasting at the end of 2001 can be estimated at nearly 16% of EU households.

Overall,  satellite  broadcasting  is  becoming  more  and  more  popular.  The  number  of  EU
households  receiving  TV  channels  directly  or  through  collective  antennas  has  increased  to
over 33 million in mid 2001 with a 21% increase  vs.  the  previous  year  and  a  52% increase
since mid 1997. Moreover, many more households receive TV signals originally broadcast by
satellite through local cable operators.

The  structure  of  cable  industry  remains  largely  different  from  country  to  country.  Overall,
investments in new cable connections are progressing rather slowly amid the public’s relative
indifference. The percentage of EU households connected to cable networks in 2001 remained
at  the  level  of  53%  of  all  TV  households,  and  the  rate  of  connected  households  actually

6 

7

The  European  Audiovisual  Observatory  supplied  all  the  statistical  data  in  this  communication,  unless
otherwise specified.
Total EU TV households are estimated at 151 444 000 in 2001

4

                                                
subscribing to audiovisual services was  almost  unchanged  compared  to  the previous  year  at
about 61% of connected households (about 49 million households, +24% vs. 1997).

Programming patterns of generalist channels have not substantially  changed  in  recent  years.
However,  "reality  shows",  characterised  by  relatively  low  production  costs  and  high
adaptability to national contexts, have consolidated their roles in the programming schedules
of many large audience channels along TV fiction productions. In 2001, specialised surveys8
covering  the  EU  largest  markets  showed  that  the  programming  of  "first  run"  TV  fiction  of
national origin was still increasing and tended to prevail during prime time while imported -
mainly  of  US  origin  -  fiction  continued  to  be  largely  programmed  during  the  other  fiction
slots of the schedules. The presence of European non-domestic TV fiction and feature films
remained  quite  limited  while  the  number  of  titles  of  TV-fiction  co-produced  at  EU  level
continued to recover since the slump recorded in 1999.

Overall,  trade  in  TV  rights  with  the  US  continued  to  deteriorate  and  in  2000  it  recorded  a
deficit estimated  at  about 4.1 billion  €  (+  17.5%  vs.  1999)  out  of  a  total  audiovisual  deficit
evaluated at 8.2 billion € (+14% vs. 1999). The trade imbalance continued in 2001.

The audience

Almost all EU households (over 155 million in 2000) are equipped with TV sets and in many
member  States  more  than  half  of  the  households  are  equipped  with  two  or  more  sets.  The
number of 16:9 TV sets is expanding and cumulative (1992/2000) sales indicate an installed
base in the EU of about nine million sets at the end of 2000.

In 2001 viewing time in the EU Member States varied from a minimum of 142 minutes per
day in Austria9 to 243 minutes in Greece10. The increase in the supply of audiovisual services,
measured in terms of available channels, did not entail a parallel increase in viewing time by
the public in the years 2000 and 2001.  In a number of countries the positive trend observed
throughout the past decades (years) seems to have come to a halt. However, statistical data do
not indicate if such new consumption patterns are due to a switch in public preference from
watching TV to other occupations like Internet surfing. Actually, the apparent modifications
in  consumer  habits  occurred  mainly  in  countries  where  connections  with  the  Web  are
relatively scarce, while countries with relatively higher proportions of Internet users recorded
increasing or stable viewing periods.

In 2001, public service channels substantially maintained their audience shares in the different
national  contexts  .  Pay-TV  channels  continue  to  hold  a  substantial  part  of  audience  in  the
markets  where  they  were  first  launched.  However,  their  importance  in  terms  of  audience
seems  strictly  linked  to  the  economic  events  characterising  the  life  of  the  few  companies
operating on each market. Overall, at the end of 2001 the number of subscriptions to Pay-TV
digital satellite packages in the EU reached the level of about 15.5 million. The main market
remains  the  UK,  while  in  certain  Member  States  the  development  of  Pay-TV  channels  is
made difficult by various forms of piracy.

Foreign channels capture an important part of audience in certain Member States, notably the
smaller ones and  those who share their national  language  with  larger  neighbours.  In  certain
cases their audience share can go beyond 40%. However, the presence of channels especially

8

9

10

Report 2001 ‘Television Fiction in Europe’ by Eurofiction.
Age group over 12 years
Age group over 6 years

5

                                                
targeting  foreign  markets is  important only in a  few Member  States,  while  at  EU  level  it  is
more  common  for  the  public  to  view  foreign  channels  that  are  not  meant  for  its  national
market.

Overall value of the market

The overall turnover of the TV and radio broadcasting sector in the European Union in 2000
can  be  estimated  at  about  €  62  billion  (+  11.6%  vs.  1999).  Advertising  remains  the  main
source of finance for EU TV broadcasters. After several years of uninterrupted expansion, the
gross TV advertising market has reached about € 22.5 billion (+ 8 % vs. 1999). In 2001, the
disappointing development of the economic trend world-wide has directly affected advertising
expenditure  including  with  regard  to  television.  For  2001  the  contraction  of  advertising
revenues  can  be  estimated11  at  about  6.3%.  2002  should  witness  a  stabilisation  of  the
advertising market (+ 0.5%), while a recovery (+ 4.5%) is expected for 2003.

Pay-TV  subscriptions  have  also  increased  the  revenue  flow  of  the  audiovisual  sector  to  an
overall amount of € 10.7 billion in 2000, an increase of 22.8% compared to the previous year.

Public  service  broadcasters  continue  to  be  funded  mostly  through  licence  fees  paid  by
viewers. The total revenues of radio-television public services reached € 26.3 billion in 2000
(+ 4.0% vs. 1999). Grants and loan  guarantees remained an important form of financing for
some  public  broadcasters,  while  in  certain  countries  the  licence  fee  has  been  replaced  by
funding through the general taxation system. The share of commercial revenues of the public
service broadcasters is increasing in several countries and accounts, in general, for about1/3 of
total revenues.

Industry financial results

During  the  most  recent  years,  several  private  broadcasters  have  implemented  a  policy  of
strategic  alliances  and  mergers  taking  advantage  of  favourable  conditions  on  the  capital
markets. These initiatives aimed at strengthening their industrial competitiveness. In 2002, the
impossibility  for  many  operators  to  deliver  the  promised  financial  returns  in  a  context  of
bearish capital markets has obliged many of the most aggressive companies to devaluate the
acquired  stakes.  In  certain  cases  companies  were  unable  to  survive  and  had  to  file  for
bankruptcy.

According to certain analyses, in 2000 operating results remained positive for the majority of
EU television companies. However, such results were largely reduced compared to what was
recorded in previous years (- 80% vs. 1997) and were insufficient to allow positive net results.
Within  the  general  trend,  television  companies  financed  by  commercial  advertisement  were
successful  in  improving  their  economic  performances,  public  service  operators  saw  their
economic  performances  become  negative,  while  television  packagers  and  other  companies
operating in niche markets recorded worsening of already negative results.

The years 2001 and 2002, for which no exhaustive statistical data are available, witnessed the
failure  of  many  hopes  for  a  sustainable  economic  development  of  the  most  innovative
initiatives  in  the  audiovisual  industry,  and  confirmed  the  long-term  viability  of  more
traditional business models.

11

Source: European Advertising & Media Forecast, August 2002

6

                                                
1.3

Independent study

In order  to receive  independent advice on  the  economic  trends  of  the  audio-visual  industry,
the Commission at the beginning of 2001 asked a consultant to draw an overall analysis of the
recent developments of the sector in the EU together with an outlook of future developments
up to 201012.

The study has highlighted the emergence and/or consolidation of a number of trends such as
the  continuous  growth  of  multi-channel  and/or  digital  platforms,  the  maintenance  of
traditional  audience  share  by  Public  Service  and  commercial  free-to-air  stations,  the
decreasing financial strength and progressive consolidation of all operators, the increase in the
importance of subscription revenues, the creation of large integrated and international groups,
some of which originate from operators active on other markets: press, consumer electronics,
civil engineering and construction.

The study has also pointed out that although a large number of households can have access to
multi-channel access platforms (such as cable, satellite or digital terrestrial television), some
households still only have access to less than 5 channels and that the European consumer has
not  changed  his  behaviour  yet  and  tends  to  watch  the  same  preferred  channels.  This  means
that advertising revenues continue to be captured by the main broadcasters.

The consultant has identified three directions in which the offer of audiovisual services could
evolve  :  a  “business  as  usual”  scenario,  which  is  more  likely  to  develop  in  the  case  of  a
negative  economic  environment.  An  “interactivity”  scenario  dependent  on  the  rapid
development  of  new  interactive  services.  A  “personalisation”  scenario  based  on  the
development of a personalised offering of existing audiovisual services.

"Interactivity”  and  "personalisation"  scenarios  are  more  likely  to  develop  in  a  positive
economic environment. They would lead to a substantial modification of the respective roles
of the market players and of the structure of the industry.

2.

STATE OF PLAY IN IMPLEMENTING THE DIRECTIVE

In 2001 the Court of Justice in two cases  decided  that  Member  States  had not  implemented
the Directive within the timeframe stipulated. The Court held that Luxembourg13 and Italy14
had failed to fulfil their obligations under the Directive. In both Member States the provisions
of the Directive have been duly implemented in the meantime. The Commission in 2001 was
able to close a case against France concerning the implementation of the Directive.15 In 2002
there was still a case against the Netherlands16 pending before the ECJ, but the Commission
was able to withdraw its application, because also the Netherlands have now implemented the
Directive in substance. Furthermore the Commission notes that Member States have devoted
adequate  resources  to  apply  national  legislation  implementing  the  Directive  effectively.

12 

13

14

15

16

The  study  "Outlook  of  the  development  of  technologies  and  markets  for  the  European  Audio-visual
sector  up  to  2010"  by  Arthur  Andersen  is  available  on  the  Audiovisual  policy  Web  site:
http://europa.eu.int/comm/avpolicy/stat/tvoutlook/tvoutlook_finalreport.pdf
ECJ C-119/00 Judgement of the Court (Fourth Chamber) of 21 June 2001. Commission of the European
Communities v Grand Duchy of Luxemburg.
ECJ C-207/00 Judgement of the Court (Fourth Chamber) of 14 June 2001. Commission of the European
Communities v Italian Republic.
ECJ C-140/99
ECJ C-145/00

7

                                                
Independent regulatory authorities have been established and budgets for technical resources
as well as staff have been considerably increased where they were insufficient.

3.

APPLICATION OF THE DIRECTIVE

3.1.

Main principles

The  Treaty  establishing  the  European  Community  provides  in  its  Article  151  (4)  that  the
Community shall also in its action under other provisions of the Treaty take cultural aspects
into  account,  in  particular  in  order  to  respect  and  to  promote  the  diversity  of  its  cultures.
Community policy in the area of the regulation of media content is essentially internal market
policy,  and  is  governed  by  internal  market  objectives  of  freedom  of  movement  for  goods
(including  newspapers  and  magazines,  for  example)  and  the  freedom  to  provide  services
(including radio and television broadcasts).

Pursuant  to  Article  6.2  of  the  Treaty  and  ECJ  cases,  the  European  Union  must  respect
fundamental  rights,  as  guaranteed  by  th  Convention  on  Human  Rights  and  Fundamental
Freedoms signed in Rome on 4 November 1950. In this respect, Article 10 of this Convention
states  in  its  first  paragraph  that  the  right  of  freedom  of  expression  includes  the  freedom  to
receive  information.  This  implies  that  no  freedom  of  expression  is  possible  without  a  free
circulation  of  information.  By  guaranteeing  the  freedom  to  provide  cross-border  television
services, internal market policy contributes to the freedom of expression, fundamental for the
functioning  of  our  democratic  societies.  Furthermore,  the  removal  of  barriers  to  a  free
circulation of information has to take account of general interest objectives such as pluralism,
cultural diversity, protection of copyright, consumer protection and protection of minors.

Community  legislation  must  be  proportionate  in  respect  of  the  objectives  to  be  achieved17.
The paramount importance of freedom of speech in a free society means regulation must be
kept to the minimum necessary to achieve these public interest objectives.

3.2.

Jurisdiction

The  Television  without  frontiers  Directive  provides  the  legal  framework  for  television
broadcasting within the European Union. When the Directive was amended in 1997, certain
practical  criteria  were  introduced,  designed  to  determine  by  an  exhaustive  procedure  the
Member State that has jurisdiction over a TV broadcaster.

It is clear that there cannot be double jurisdiction under Community law. The Directive lays
down  a  number  of  criteria  designed  to  determine  the  Member  State  with  jurisdiction.  In
addition,  the  Directive  states  clearly  that  where  jurisdiction  cannot  be  determined  using  the
criteria  laid  down  in  Article  2(3),  the  competent  Member  State  is  to  be  determined  by
reference  to  Articles  52  (now  Article  43)  and  following  of  the  Treaty  establishing  the
European Community.  It  is therefore not possible under  Community  law  for  more  than  one
Member State to have jurisdiction.

The  Commission  has  monitored  compliance  with  and  the  effectiveness  of  these  principles
during the reference period.

17

As defined by the European Court of Justice, see C-84/94, C-233/94, C-76/90 etc.

8

                                                
In addition, the European Court of Justice considered the issues of jurisdiction and action by a
receiving Member State in the case of the Commission v. Kingdom of Belgium18. In respect
of  jurisdiction,  the  Court  held  that  there  was  a  clear  division  of  obligations  as  between  the
Member States from which programmes emanate and those receiving them. It is solely for the
Member State from which television broadcasts emanate to monitor the application of its law
applying to such broadcasts and to ensure compliance with the Directive. The receiving State
is  limited  to  ascertaining  that  the  programmes  in  question  emanate  from  another  Member
State.

Following the lodging of a complaint, the attention of the Commission has been drawn to the
application  of  these  provisions  of  the  Directive,  by  the  Dutch  Media  Commission
(Commissariaat voor de Media).

The complainant, CLT-UFA SA, is a satellite broadcaster, licensed in Luxembourg, directing
the services RTL 4 and 5 to the Dutch market. The Dutch Media Commission, by decision of
5 February 2002, upheld its previous decision of 20 November 1997. In this initial decision, it
held  that  RTL/Veronica  de  Holland  Media  Group  SA  was  the  responsible  broadcasting
organisation  for  RTL  4  and  RTL5,  which  therefore  fell  under  the  jurisdiction  of  the  Dutch
authorities.

The Commission considers that, according to the criteria laid down in the  Directive, RTL 4
and 5 fall under the jurisdiction of the Luxembourg authorities. The parties do not contest the
fact  that  the  channels  are  licensed  in  Luxembourg.  This  case  will  be  closely  followed  to
ensure that the interpretation given to the criteria is in line with the case law of the European
Court of Justice.

3.3.

Events of major importance for society (Article 3a)

Article  3a(1)  of  the  Directive  allows  Member  States  to  take  national  measures  to  protect
events  regarded  as  being  of  major  importance  to  society,  so  that  a  significant  part  of  the
public in that Member State is  not  deprived of the possibility  of seeing  such  events  on  free
television. Article 3a(2) describes the procedure for obtaining a preliminary assessment by the
Commission as to the conformity of these measures with Community law. Article 3a(3) aims
to ensure that broadcasters established in other Member States respect the measures drawn up
by the respective Member States.

By the end of 2002 measures in relation to Article 3a(1) of the Directive have been taken by
Italy,  Germany,  the  United  Kingdom  and  Austria.  At  the  beginning  of  the  year  2002,
Denmark  withdrew  its  measures.19  In  accordance  with  Article  3a(2)  of  the  Directive,  a
consolidated list of the measures taken by Member States has been published once a  year in
the Official Journal of the European Communities. The last consolidated list was published in
August 200220.

In the period covered by this report the Austrian measures have been discussed in the Contact
Committee and published in the Official Journal of the European Communities on 19 January
200221.

18

19

20

21

ECJ C-11/95 - judgement of 10 September 1996.
Published in OJ C Nr 45, 19.02.2002
OJ C 189, 9.8.2002, p. 2
OJ C 16, 19.1.2002, p. 8

9

                                                
in 

the  Exclusive  Television  Rights  Act 

The  measures  are  defined 
(Fernseh-
Exclusivrechtegesetz  –  FERG)  and  a  list  of  events  of  major  importance  is  set  out  in  the
Ordinance  on  events  of  substantial  social  interest.  The  FERG  creates  an  obligation  for
broadcasters having acquired exclusive rights to listed events to ensure that these events can
be followed  by at least 70%  of the viewers22 on  a channel freely accessible in  Austria.  The
consultation procedure provided for in the draft bill was quite far-reaching and also included
the right owners.

The  listed  events  are:  the  Summer/Winter  Olympic  Games;  World  Cup  and  European
Championship  football  matches  with  Austrian  participation  together  with  opening  matches,
semi-finals  and  finals  (men);  the  final  of  the  Austrian  Football  Cup;  FIS  World  Alpine  and
World Nordic skiing championships; the Vienna Philharmonic Orchestra’s New Year concert;
the Vienna Opera Ball.

Belgium submitted draft measures on 5 September 2002. This proposal was not complete and
the  Belgian  authorities  were  informed  accordingly.  At  a  first  meeting,  the  Irish  authorities
indicated their intention to present draft measures in the near future and were informed about
the procedure outlined above.

Implementation  of  Article  3a(3)  of  the  Directive  is  mandatory  for  all  Member  States.  Its
effective implementation is essential to ensure  that Member  States’ specific  provisions with
regard to events of major importance, as provided for under Article 3a(1), are not undermined
by  broadcasters  under  the  jurisdiction  of  other  Member  States.  The  Commission  considers
application of Article 3a in the reference period to have been satisfactory. Article 3a has been
the subject of proceedings before courts at national and European level. The House of Lords23
found  that  „the  result  which  Article  3a(3)  requires  Member  States  to  achieve  is  perfectly
clear.  It  is  to  prevent  the  exercise  by  broadcasters  of  exclusive  rights  in  such  a  way  that  a
substantial proportion of the public in another Member State is deprived of the possibility of
following  a  designated  event”.  Another  case  is  pending  before  the  European  Court  of  First
Instance24. The major issue in this case seems to assess the role of the Commission in relation
to Article 3a of the Directive.

3.4.

Promotion of distribution and production of television programmes

The Commission adopted on 8 November 2002 the fifth Communication to the Council and
the European Parliament on the application of Articles 4 and 5 of Directive 89/552/EEC, as
amended  by  Directive  97/36/EC,  for  the  period  1999-2000  on  promoting  distribution  and
production of television programmes.25

Article 4 states that 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. Article 5 states that Member States shall ensure, where
practicable  and  by  appropriate  means,  that  broadcasters  reserve  at  least  10  %  of  their
transmission time, or alternately, at the discretion of the Member State, at least 10 % of their

22

23

24

25

70%  of  the  viewers  cover  the  number  of  "viewing"  households  disposing  of  a  cable  or  satellite  TV
infrastructure.  This  threshold  makes  the  following  broadcasters  eligible  for  the  broadcasting  of  listed
events: ORF 1 and 2, ARD, ZDF; RTL, PRO7, SAT1, 3 Sat, BFS (Bayern), RTL 2, Vox [data origin:
http://mediaresearch.orf.at].
Regina vs. ITC, 25 July 2001, UKHL 42
Case T-33/01
COM(2002)612 final

10

                                                
programming  budget,  for  European  works  created  by  producers  who  are  independent  of
broadcasters.  This  proportion  must  be  achieved  by  earmarking  an  adequate  proportion  for
recent works, that is to say works transmitted within five years of their production.

For both Articles 4 and  5, the majority of  Member  States,  in accordance with Article  3  (1),
has opted for more detailed or stricter rules in this area.

Within  the  framework  of  the  review  of  the  Directive,  the  Commission  has  highlighted  the
general  trends  observed  both  at  Community  level  and  in  the  individual  Member  States
concerned. To this end, a series of indicators based on the criteria set out in Articles 4 and 5
of the Directive has been developed to provide an objective analysis grid.

For  the  reference  period  (1999-2000),  the  national  reports  reflect  generally  satisfactory
application by the European Union Member  States of the  provisions of Article 4  (European
works) and Article 5 (European works created by independent producers) of the Directive.

Detailed examination of these reports by the Commission reveals, for both Articles 4 and 5, a
positive  and  dynamic  trend  in  the  broadcasting  of  European  works,  including  those  by
independent producers, in the context of a general increase in the number of channels over the
reference period.
The average transmission time of European works26 for all European channels, in all Member
States, was 60,68% in 1999 and 62,18% in 2000, representing a 1,50 point increase over the
reference period.

The  average  proportion  of  works  by  independent  producers27  broadcast  by  all  European
channels in all Member States, was 37.51% in 1999 and 40.47% in 2000, representing a 2.95
point increase over the reference period.

The  average  share,  for  all  European  channels  in  all  Member  States,  allocated  to  recent
European works by independent producers (“adequate proportion”) was 53.80% in 1999 and
55.71% in 2000, representing a 1.91 point increase over the reference period.

The communication also records the reasons given by Member States for channels failing to
meet  the  obligations  set  out  in  the  Directive.  Amongst  them,  the  following  reasons  were
given:

– 

– 

Grouping of channels belonging to the same broadcaster. Member States' reports often pointed
out  that  the  channels  concerned,  if  taken  together,  met  or  exceeded  the  minimum  proportion
laid down by the Directive.

Special-interest nature of the channels’ programmes and progress achieved. In many cases, the
special interest theme does not enable the minimum proportion to be met (very specific niche
market).

26

27

For each year under consideration, the audience share is based on the most recent figures published by
the European Audiovisual Observatory: Statistical Yearbook 2002 (Volume 2) “Household audiovisual
equipment,  transmission,  television  audience”.  Except  in  specific  cases,  all  channels  with  over  3%
audience share (whole day) over each of the two years under consideration were taken into account.
Average  air  time,  or  alternatively,  depending  on  the  choice  made  by  the  Member  State  when
implementing the Directive, the average proportion of the programming budget allocated to European
works by independent producers.

11

                                                
– 

– 

Recent  nature  of  the  channel.  Nevertheless,  many  of  the  new  entrants  broadcast  a  large
proportion of European works in their first years of operation in order to penetrate the market
concerned.

Subsidiaries  of  non-EU  companies.  Such  channels  tend  to  make  systematic  use  of  their  own
catalogue material and rarely show European works.

In  practice,  these  reasons  are  often  combined  in  Member  States’  reports.  The  channels  in
question are often the same in the various Member States concerned.

With regard  to  the measures envisaged  or adopted to  remedy  cases  of non-compliance, it is
worth  noting  that  various  types  of  measure  were  reported:  ongoing  dialogue,  subjecting  the
channels concerned to surveillance, formal notices and proceedings against broadcasters.

3.5.

The application of the rules on advertising (Articles 10 to 20)

The Directive lays down certain obligations and rules in its Chapter IV relating to television
advertising, sponsorship and teleshopping: these concern the amount of advertising permitted
on  screen  (daily  and  hourly  limits,  Article  18),  the  number  of  and  form  of  advertising
interruptions (Article 11), and rules applicable to the content and presentation of advertising
messages  (Articles  10,  12,  13,  14,  15  and  16).  Specific  rules  (Article  17)  are  applied  to
sponsorship of television programmes.

The  Commission  had  received  several  complaints  -  often  coming  from  consumers'
associations  -  about  alleged  failure  in  certain  Member  States  to  comply  with  the  rules  on
advertising and sponsorship in respect of the time limitations. During the period covered by
this report the problems particularly concerned the practices of certain broadcasters in Greece.

With  respect  to  the  application  of  the  provisions  in  Directive  89/552/EEC  infringement
proceeding, for poor application, were initiated in three cases concerning  Greece, Spain and
Italy (for non-compliance with the provisions on advertising). The cases in respect  of  Spain
and  Italy  were  closed  during  the  reference  period.  The  allegations  concerning  Greek
broadcasters were the subject of a monitoring exercise. This case has been followed up by the
Greek authorities, which is in the process of taking corrective measures.

On  the  basis  of  monitoring  of  respect  of  the  advertising  provisions,  carried  out  for  the
Commission by an external consultant, Audimetrie, infringement procedures were initiated in
three  cases  concerning  Germany,  Italy  and  Portugal.During  the  reference  period  the
Commission  launched  two  independent  and  specific  studies  concerning  this  chapter  of  the
Directive. The first study on the impact of television advertising and teleshopping on minors
was carried out by INRA (under the legal direction of Bird &  Bird).28 The aim of the study
was  to  identify  and  describe  the  national  provisions  on  advertising  provided  in  legislation,
regulation  and  self-regulatory  codes,  which  are  applied  to  advertising  in  each  State  for  the
protection  of  minors.  In  addition,  the  national  system  for  the  handling  of  complaints  was
described fully, covering administrative, legal and self-regulatory measures.

The first part concerns the situation in each of the Member States and the EEA Members. It
provides a complete account of the legislation, regulation and other administrative practices in
the  Member  States  in  respect  of  advertising  and  teleshopping  to  children.  It  charts  the
evolution of  such provisions from 1988  (i.e.  prior  to the  adoption of the  Television without

28

All studies are available on the europa server:
http://europa.eu.int/comm/avpolicy/stat/studi_en.htm

12

                                                
frontiers Directive) to the present. It includes information on any debate that took place and
the principles on which such provisions are based. The second part of the report concerns the
legislation that applies at European and International level.

The  study  shows  that  the  provisions  of  the  Directive  provide  an  adequate  and  flexible
framework for  Member State rules in this area.  It  is  worth  noting  the  extensive  use  of  self-
regulation  in  this  area,  both  in  respect  of  the  rules  applied  and  the  complaints  procedures
available.  There  is  a  clear  difference  between  the  regulation  of  television  and  other  media,
with television being more heavily regulated than other media.

There  are  a  remarkable  number  of  differences  at  Member  State  level,  ranging  from  the  age
limits  in  definitions  (that  vary  in  addition  within  a  Member  State  for  different  activities)  to
specific  provisions  on  certain  sectors  (for  example  on  financial  activities  or  alcohol
advertising). The number of complaints is extremely low, and has not increased significantly
throughout the period covered by the study, showing that the Directive, as implemented in the
Member States works effectively.

There are a limited number of proposals in certain Member States, whose aim would appear
to be mainly to clarify the application of existing legislation.

The  study  shows  which  Member  States  have  taken  measures  that  are  more  restrictive  than
those of the Directive; only one Member State has a total ban on advertising aimed at minors
below the age of 12 (Sweden), one has a ban on toy advertising from 7.00 a.m. to 10.00 p.m.
(Greece), whilst a small number of Member States have legal (Belgium – Flanders, and Italy)
or  voluntary  (Denmark)  restrictions  on  advertising  around  children’s  programming.  A  large
majority  of  Member  States  do  not  restrict  advertising  aimed  at  children  but  do  provide  for
detailed  rules  as  to  the  content  of  such  advertising  (for  example:  no  advertisement  may
encourage  children  to  enter  strange  places  or  to  converse  with  strangers;  the  use  of
personalities  known  to  children  may  be  forbidden  or  restricted;  advertisements  for  sweets
should  feature  a  toothbrush  symbol  on  the  screen).  These  rules  are  effected  both  through
regulation and self-regulation

The second study, on the development of new advertising techniques, has been carried out by
Bird  &  Bird  and  Carat  Crystal.29  The  purpose  of  the  study  was  to  provide  the  Commission
with  a  thorough  understanding  and  accurate  vision  of  the  state  of  play  and  likely  further
development  of  advertising,  sponsorship  and  teleshopping  techniques,  across  the  different
forms of media, namely television, radio, cinema and Internet. This included the development
or evolution in current practices, such as product placement or spot advertising.

The  study  covered  in  particular  the  techniques  of  interactive  and  virtual  advertising  (in
particular for sports events), as well as the use of split screens, and banner adverts. Different
provisions exist within the Member States and the EEA States to implement Chapter IV of the
Directive.  The  study  consists  of  two  parts,  analysing  respectively  the  economic  aspects  and
the regulatory framework for advertising in each Member State. In respect of the regulatory
framework, the handling of different techniques, such as interactive  advertising, split screen
techniques and virtual advertising were examined to see  whether they  are  used  and whether
specific regulation exists.

29

Published at:http://europa.eu.int/comm/avpolicy/stat/studi_en.htm

13

                                                
In general, it can be said that often the situation differs substantially from one Member State
to another, as to the actual use and importance of certain techniques, as well as concerning the
approach of  national  authorities. The existence  of  specific  rules  for  these  new  techniques  is
infrequent:

Interactive:  At  present  the  only  Member  State  with  a  specific  regulation  for  interactive
advertising  is  the  United  Kingdom.  Other  than  the  ITC  (UK  media  authority)  rules  and  the
EGTA  code,  no  specific  regulation  applies  to  commercial  interactive  services,  since
interactive advertising is still at an experimental stage in most Member States.

Split-screen: There is a ban on using the technique in some Member States: the Netherlands,
Portugal, Sweden and  France. Other countries have authorised the use of this technique: for
example the United Kingdom and Germany. Germany is the only country to have adopted a
specific regulation on the subject. In the United Kingdom the ITC allows the split screen to be
used, but in a more limited form (during the advertising, information can be displayed about
the programme, but only in the form of text).

Virtual  advertising  (or  sponsorship):  Italy,  France,  Portugal  and  Norway  consider  virtual
advertising to be TV advertising and as contrary to the principles that govern the insertion of
advertising in programmes, and it is therefore banned. In the United Kingdom and Germany
there are specific regulations, which subject the use of this technique to certain conditions.

From the economic part of the study it appears that a wide range of sponsoring techniques is
used  in  the  Member  States.  It  is  clear  that  the  technique  has  greatly  increased  since  the
original Directive was adopted in 1989. Even if sponsorship is not a new technique as such, it
has been considered in depth since the techniques that are used today differ substantially from
the  classic  TV-sponsorship  which  existed  at  the  time  of  the  drafting  of  the  rules  on
sponsorship.

The preliminary results of the study show that these new techniques are in their infancy, and
have not, as yet, a real financial impact on media advertising revenues. Indeed as the figures
show,  between  96-99%  of  all  advertising  revenue  across  the  different  media  is  still  on
traditional advertising.

The  Commission  has  also  launched  two  rounds  of  consultation  in  the  field  of  consumer
protection in general30: the Green Paper on EU Consumer Protection (COM (2001) 531 final)
and its follow-up communication (COM (2002) 289 final).

The  two  documents  set  out  questions  and  ideas  on  the  future  of  the  regulation  and
enforcement of consumer protection. In particular, the follow-up communication sets out the
idea of developing a framework directive on fair commercial practices and EU-wide codes of
conduct.  In  addition,  it  suggested  the  development  of  a  legal  instrument  for  cooperation
between  enforcement authorities. The follow-up communication also sets  out an  action plan
for further consultation with the Member States and stakeholders.

The Commission’s preparatory  and  consultation  work  on  a  framework  directive  is  ongoing,
with  a  proposal  announced  for  2003  in  its  work  programme.  These  initiatives  are  fully
consistent  and  compatible  with  existing  Community  policies  such  as  the  Commission’s
audiovisual  policy  (notably  the  “Television  without  frontiers”  Directive)  and  its  policy  on

30

http://europa.eu.int/comm/consumers/policy/developments/fair_comm_pract/follow_green_en.html

14

                                                
commercial communications and the follow-up to the Commission’s Internal Market Strategy
for Services.

3.6.

Protection of minors and public order (Articles 2a, 22 and 22a)

Article 2a(2) of the Directive allows the Member States - provided that they respect a special
procedure - to take  measures against  broadcasters under  the jurisdiction of  another Member
State  who  "manifestly,  seriously  and  gravely"  infringe  Article  22  and/or  Article  22a  of  the
Directive as a provisional derogation to the general principle of freedom of reception and non-
restriction  of  retransmission.  This  is  designed  to  protect  minors  from  programmes  which
might seriously or are likely to impair their "physical, mental or moral development", and to
ensure  that  broadcasts  do  not  contain  any  incitement  to  hatred  on  grounds  of  race,  sex,
religion or nationality.

A  number  of  specific  conditions  must  be  respected  by  the  receiving  Member  State.  The
broadcaster  must  have  infringed  Article  22  and/or  22a  on  at  least  two  prior  occasions.  The
Member  State  concerned  must  notify  the  television  broadcaster  and  the  Commission  in
writing  of  the  alleged  infringements  and  the  measures  it  intends  to  take  if  any  such
infringement occurs again.

Consultations must be  undertaken.  If they  do not  produce  an  amicable  settlement  within  15
days  of  the  notification,  and  the  alleged  infringement  persists,  the  receiving  Member  State
may take unilateral provisional measures against the channel concerned.

The  Commission  must  decide  whether  the  measures  taken  are  compatible  with  Community
law, within two months following notification of the measures taken by the Member State. If
it decides that they are not, it may require the Member State to put an end to the measures in
question as a matter of urgency.

During  the  period  in  question,  only  one  Member  State  (Germany)  has  notified  the
Commission of its intention to use this procedure. The Commission is pursuing contacts with
the Member States concerned.

The Commission considers application of Article 2a(2) in the reference period to have been
satisfactory.  It  has  protected  the  general  interest  and  provided  a  secure  framework  for  the
protection  of  minors  with  a  minimum  potential  for  a  restriction  of  the  freedom  to  provide
services.

However, the Commission would stress that when it carries out an assessment of the measures
taken  under  Article  2a(2),  this  assessment  is  based  on  factual  and  legal  considerations;  the
moral  assessment  of  the  content  of  the  programmes  depends  on  the  judgement  of  each
Member  State,  which  has  the  principal  responsibility  for  authorising  or  prohibiting  the
transmission of certain television programmes by broadcasters under its jurisdiction who may
be caught by Article 22. The Directive anticipates the possibility of a difference in judgement
between the authorities of the originating country and those of the receiving country.

Furthermore,  the  measures  taken  by  the  receiving  Member  State  are  without  prejudice  to
those taken, if necessary, by the Member State which has jurisdiction over the broadcaster in
question. It is not, therefore, a question of transferring jurisdiction from one State to another,
but of  an  exceptional  possibility  offered  to  the  receiving  Member  State  to  take  measures  to
protect its interest in situations of incontestable gravity, according to a precise procedure.

15

It is also important to highlight the fact that, in the system of Community rules created by the
Directive  (Article  2a(1)),  Member  States  are  not  permitted  to  apply  discriminatory  moral
criteria  to  the  broadcasters  under  their  jurisdiction:  a  stricter  attitude  to  programmes  to  be
received in their territory and a more lenient attitude to programmes destined to be broadcast
abroad (typically, satellite channel programmes) would not be acceptable. On the contrary, the
Member States are bound to ensure that all broadcasters under their jurisdiction comply with
Article 22.

According  to  Article  22  Member  States  shall  take  appropriate  measures  to  ensure  that
television  broadcasts  by  broadcasters  under  their  jurisdiction  do  not  include  programmes
which  might  seriously  impair  the  physical,  mental  or  moral  development  of  minors,  in
particular those that involve pornography or gratuitous violence. This provision shall extend
to other programmes which are likely to impair the physical, mental or moral development of
minors, except where it is ensured, by selecting the time of the broadcast or by any technical
measure, that minors in the area of transmission will not normally hear or see such broadcasts.
Member States  shall  also  ensure  that  broadcasts  do  not  contain  any  incitement  to  hatred  on
grounds of race, sex, religion or nationality. As a consequence, the question of rating becomes
essential.

Rating may differ not only between EU and EEA Member States, but also within a Member
State and/or non-EU EEA-State according to the way of distribution. A film rated in a given
way  for  cinema  may  be  rated  differently  when  it  comes  to  cinema  exhibition,  television
broadcasts  and  on-line  delivery  or  videocassettes/dvd.  In  certain  Member  States,  such  as  in
the Netherlands with NICAM31, rating across media has been already started. On the basis of
an industry initiative, a pan European rating system for video games has been established. The
Council welcomed this initiative in a resolution discussed on 1 March 2002 32.

The Commission has therefore launched a study, carried out by the consultant Olsberg SPI, in
order to identify the practice of rating in the different EU and EEA Member States, depending
on  the  different  distribution  channels  and  evaluate  the  impact  of  differences  between  the
national  legislation  and  practice  with  respect  to  rating  on  the  commercialisation  of  films.  It
also will analyse potential confusion amongst the persons responsible for minors arising from
differences in rating.

3.7.

Coordination between national authorities and the Commission

Application of the rules of the Directive is the responsibility of each Member State's national
authorities  (ministries  and/or  independent  authorities)  responsible  for  regulating  the
audiovisual  industry.  Systematic  contact  with  the  national  bodies  (ministries  and/or
independent  regulatory  authorities)  has  been  maintained,  particularly  through  the  Contact
Committee  set  up  by  the  Directive  (Article  23a).  A  Commission  representative  chairs  this
Committee, which is composed of representatives of  Member  States’  competent  authorities.
In  the  period  covered  by  this  report  the  Committee  met  on  four  occasions.  Two  of  these
meetings  were  followed  by  a  meeting  of  the  Members  of  the  Contact  Committee  with
representatives of the Candidate Countries.

The Committee has fulfilled the tasks conferred on it by the Directive, and has, in particular,
facilitated  effective  implementation  of  the  Directive;  it  has  delivered  opinions,  under  the

31

32

Nederlands Instituut voor de Classificatie van Audiovisuele Media; www.nicam.cc
OJ C 65/02, 14.3.2002

16

                                                
procedure laid down in Article 3a(2) concerning events of major importance for society (see
Point 3.3,  the  Austrian  draft measures were  discussed  in  the  13th  meeting).  To  facilitate  the
implementation  of  the  Directive  through  regular  consultation  on  practical  problems  arising
from its application the Contact Committee discussed i.a. the interpretation of Article 18(2) of
the Directive (when should the « given hour » start) and of Article 11 (2) (advertising during
sports  events).  At  the  meetings  of  the  Contact  Committee  the  Commission  presented  the
evaluations  and  studies  conducted  (Evaluation  report  on 
the
Recommendation  on  the  protection  of  minors,  Study  on  advertising  and  children,  Study  on
new  advertising  techniques,  Study  on  the  development  of  the  audiovisual  sector  etc.).
Member  States  reported  on  new  legislation  (the  UK  Communications  Bill  and  the  German
Jugendmedienschutz  Staatsvertrag  (state  treaty  on  the  protection  of  young  people  in  mass
media)).  The  Contact  Committee  on  various  occasions  also  discussed  the  conflict  of
jurisdiction between two Member States (see 3.2.).

the  application  of 

The Commission was also able to coordinate with the national audiovisual regulatory bodies
within the framework of the European Platform of Regulatory Authorities (EPRA) set up in
April  1995  in  Malta.  The  aim  of  this  platform  is  to  provide  regulatory  authority
representatives  with  a  forum  for  discussion  and  mutual  exchange  of  views  on  regulatory
matters in the audiovisual field, both at European and national level. EPRA currently gathers
43  regulatory  authorities  form  35  countries.  The  European  Commission  haspermanent-
observer  status.  The  Commission  actively  participates  in  the  Platform's  meetings  and
activities.

EPRA held four meetings during the reference period, the last one in Ljubljana on 24 and 25
October 2002.

4.

INTERNATIONAL ASPECTS

4.1.

Enlargement: Analysis of audiovisual legislation in the Candidate Countries

Thirteen  candidate  countries  are  in  the  process  of  integrating  the  European  Community
audiovisual  policy;  at  the  same  time  they  are  consolidating  and  further  developing  national
audiovisual  structures  capable  of  meeting  the  needs  of  democratic  societies.  The  first  step
towards  the  integration  of  European  audiovisual  policy  has  been  the  implementation  of  the
provisions  of  the  Television  Without  Frontiers  Directive  into  the  candidate  countries’
broadcasting legislation.

Most  of  the  candidate  countries  have  now  reached  a  high  degree  of  alignment  with  the
Community  acquis.  On  this  basis,  closure  of  the  Chapter  concerning  audiovisual  policy  has
already  been  achieved  for  11  countries :  Bulgaria,  Cyprus,  Estonia,  Hungary,  Latvia,
Lithuania,  Malta,  Poland,  Czech  Republic,  Slovakia  and  Slovenia.  Furthermore,  the
Romanian  Parliament  adopted  a  new  Broadcasting  Law  in  June  2002  which  is  generally  in
line  with  the  TWF  Directive.  Provisional  closure  of  Chapter  20  with  Romania  is  thus
expected to happen in the near future.

Further developments are, however, still expected.

Firstly,  while  major  legislative  developments  are  still  required  in  Turkey,  most  candidate
countries  have  undertaken  to  pass  minor  legislative  adjustments  before  accession.  A
legislative process is underway, for example, in Poland and in the Czech Republic.

17

Secondly,  for  all  candidate  countries  except  Turkey,  the  priority  has  now  shifted  from
alignment efforts to actual implementation of the new legislative provisions. In this context,
the  issue  of  administrative  and  judicial  capacity  is  now  at  the  forefront  of  the  negotiations
with the candidate countries. The effective implementation of the Community acquis depends
on the overall national audiovisual policy environment, its effectiveness, transparency and on
the degree of legal  security  it  brings  to  broadcasters.  In  this  connection,  the  capacity  of  the
Country's  Regulatory  Authority  to  monitor  and  sanction,  in  an  independent  manner,  the
behaviour  of  broadcasting  operators,  is  very  often  at  the  centre  of  these  implementation
efforts.

4.2.

Cooperation with the Council of Europe

The  Council  of  Europe  European  Convention  on  Transfrontier  Television  was  amended
by  a  Protocol,  to  take  account  of  developments  in  the  broadcasting  market,  and  to  remain
consistent with the Directive. The protocol amending the Transfrontier Television Convention
was adopted by the Committee of Ministers of the Council of Europe on 9 September 1998.
The revised Convention entered into force on 1st of March 2002.

Co-operation between the European Commission and the Council of Europe has been further
developed, in particular with regard to exchange of information on the development of audio-
visual policies in Member States of the Council of Europe, which are not members of the EU.
Meetings  have  been  held  on  18  September  2001  and  27  June  2002  between  European
Commission officials and members of the Council of Europe Secretariat for Media policy.

These  meetings  allowed  both  parties  to  have  an  informal  exchange  of  views  on  the  current
situation  of  the  audio-visual  sector  in  non-EU  members  of  the  Council  of  Europe  and  to
inform  the  Commission  about  the  priorities  of  the  Council  of  Europe  concerning  assistance
programmes in these countries.

Further  co-operation  has  been developed  on  a  pragmatic  basis,  in  particular  through  mutual
consultation  on  legislative  developments  in  these  countries.  Following  the  second  meeting,
contacts  were  established  between  the  Commission  services  in  charge  of  administering
European  Union  Programmes  in  European  third  countries  and  the  relevant  services  of  the
Council of Europe.

5.

CONCLUSIONS AND PROSPECTS

In  an  overall  assessment  it  can  be  concluded  that  the  Directive  continues  to  function
successfully  as  a  means  of  ensuring  the  freedom  to  provide  television  services  in  the
Community. The overriding objectives of public interest33 that the Directive aims to safeguard
are still valid and more than ever before Member States have given themselves the means to
achieve  these  objectives.  Independent  national  regulatory  authorities  have  been  set  up  and
most Member States have allocated additional staff and resources to effectively implement the
Directive. The “Television without Frontiers” Directive provides effective regulation for the
European  audiovisual  sector  and  the  report  confirms  the  validity  of  the  common  European
approach to audiovisual matters. The separate report on the application of Articles 4 and 5 of
the  Directive  indicates  generally  satisfactory  results  in  terms  of  channels  meeting  the
requirements concerning European works and independent production.

33

See point 3.1. (Main principles).

18

                                                
Article 26 of the Directive provides that the Commission shall submit not only the report on
the  application  of  the  Directive,  but  also  make  further  proposals  to  adapt  the  Directive,  if
necessary, to developments in the field of broadcasting. The Commission therefore decided to
commission  a  study  from  an  independent  consultant  on  the  Outlook  of  the  development  of
technologies  and  markets  for  the  European  Audio-visual  sector  up  to  201034,  in  order  to
provide input for a prospective analysis. The study has pointed out that in the future a number
of technological and economic developments may challenge the present patterns of the audio-
visual industry. Technological advances are expected to enable new forms of consumption of
broadcast media, and to modify the overall market dimensions as well as the relative market
strength of audio-visual industry operators. The new technologies could create the conditions
for  new  business  models  to  emerge.  New  ways  of  advertising  are  emerging  Television
viewing time, hence the television advertising potential, is expected to decrease.

The  European  Parliament  has  had  several  opportunities  to  raise  the  issue  of  revising  the
Television Without Frontiers Directive. On 13 November 2001 it adopted a Resolution, based
on an own-initiative  report  by  the  European  Parliament35,  on  achieving  better  circulation  of
European  films  in  the  internal  market  and  the  candidate  countries.  More  recently,  on
26 September  Parliament  adopted  a  Resolution  calling  for  an  EU  Action  Plan  for  the
Successful Introduction of Digital Television in Europe36 and calling on the Commission to
take account of these issues in the review of the Television Without Frontiers Directive.

During the meeting  of  the  EU  Council of Ministers  held on 23 May 2002, the  Commission
presented the options which could be used as a basis for a review of the Directive and it was
agreed  that  the  best  approach  was  to  draw  up  a  work  programme  with  a  view  to  drafting  a
proposal at a later date.

On  11  November  2002  the  Council  adopted  conclusions  on  the  review  of  the  “Television
without Frontiers” Directive37, recalling the broad consensus that there is a need for extensive
preparation before the elaboration of any future proposals concerning the Directive.

Following  on  from  these  debates  and  discussions,  the  aim  of  the  attached  work
programme  is  to  give  rise  to  a  public  debate  that  is  open  to  all  interested  parties,  and
involves the candidate countries and nationals of those countries, on questions related to

34

35

36

37

The study "Outlook of the development of technologies and markets for the European Audio-visual sector up to 2010" by Arthur
Andersen is available on the Audio-visual policy Web site:
http://europa.eu.int/comm/avpolicy/stat/tvoutlook/tvoutlook_finalreport.pdf
Parliamentary  own-initiative  report,  tabled  on  21  October  2001,  on  achieving  better  circulation  of
European  films  in  the  internal  market  and  the  candidate  countries  (2001/2342(INI))  -  Committee  on
Culture, Youth, Education, the Media and Sport - Rapporteur: Mr Luckas Vander Taelen.
European Parliament Doc. B5-0488/2002
http://ue.eu.int/pressData/en/educ/73183.pdf

19

                                                
the review of the “Television without Frontiers” Directive, in particular as specified in
its Article 26 in the light of recent technological developments.

The objective of the Commission is to assess the need to update or adapt the “Television
without  Frontiers”  Directive  and,  where  necessary,  adopt  related  or  additional
measures. In this case the Commission could, when the time comes, submit a proposal to
the  Community  legislator  containing  a  range  of  measures  to  reinforce  coherent
European audiovisual policy taking also full account of the objective of creating a pro-
competitive  and  growth-oriented  environment  for  the  development  of  the  audiovisual
sector38.

38

According to the Commission’s long-term objective set out by the Lisbon European Summit of making
the Union the world’s most competitive, knowledge-based economy

20

                                                
ANNEX

Work programme

FOR THE REVIEW OF THE “TELEVISION WITHOUT FRONTIERS” DIRECTIVE

AND TIMETABLE OF FUTURE ACTIONS

21

CONTENTS

I. – METHODOLOGY

1.1.

Specific instruments of European audiovisual policy

1.2.

Links with other Community policies

1.3.

Public consultations

II. – WORK PROGRAMME

2.1

GENERAL CONSIDERATIONS

1.

2.

Scope

Linkages between regulation, co-regulation and self-regulation

2.2.

SPECIFIC THEMES

1.

Access to events of major importance for society

Promotion  of  cultural  diversity  and  of  competitiveness  in  the  European  programme

2.
industry

Protection of general interests in television advertising, sponsorship, teleshopping and

3.
self-promotion

4.

5.

Protection of minors and public order - The right to reply

Application (related aspects)

Issue  not  covered  by  the  Directive:  access  to  short  extracts  of  events  subject  to

6.
exclusive rights

III. - TIMETABLE AND FUTURE ACTIONS

22

The  “television  without  frontiers”  Directive39,  based  on  Article  47,  second  paragraph  (ex
Article 57, second paragraph) and Article 55 (ex Article 66) of the EC Treaty, establishes the
legal  framework  for  the  free  provision  of  television  services  in  the  European  Union  with  a
view to promoting the development of a European market (principles of freedom of reception
and  retransmission  of  television  programmes)  while  taking  into  account  certain  general
interest objectives.

Article 26 of the Directive provides that, no later than 31 December 2000 and every two years
thereafter,  the  Commission  shall  submit  to  the  European  Parliament,  the  Council  and  the
Economic  and  Social  Committee  “a  report  on  the  application  of  this  Directive  as  amended
and, if necessary, make further proposals to adapt it to developments in the field of television
broadcasting, in particular in the light of recent technological developments”.

The Member States had until 30 December 1998 to transpose the amended Directive into their
national laws40. The Directive has thus been in force for a little over four  years. As a result,
the  current  review  provides  the  first  opportunity  for  in-depth  assessment  of  the  practical
implementation of the new Directive.

The  conclusions  of  the  application  report  noted  that  the  “television  without  frontiers”
Directive,  the  cornerstone  of  European  audiovisual  policy,  is  now  broadly  applied  by  the
candidate  countries  and  represents  a  pertinent  and  effective  instrument  in  support  of  the
European audiovisual sector and of cultural diversity. It accompanies the development of the
European  audiovisual  landscape  (increasing  number  of  channels)  and  has,  in  practice,  been
the subject of very few disputes or complaints.

However,  recent  developments  in  audiovisual  technologies  and  markets  lead  the
Commission to further develop its thinking. To this  end,  the  present work programme
has been divided into three parts:

–

–

methodology;

themes for discussion; and

work timetable and future actions planned on certain legal aspects of European

–
audiovisual policy.

I. - METHODOLOGY

The  implementation  of  the  present  work  programme,  which  represents  a  Commission
priority for 2003, will be based on the following three elements:

39

40

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  as  amended  by  Directive  97/36/EC  of  the  European  Parliament  and  of  the
Council of 30 June 1997.
http://europa.eu.int/comm/avpolicy/regul/regul_en.htm
Directive 97/36/EC of the European Parliament and of the Council of 30 June 1997 amending Council
Directive  89/552/EEC  on  the  coordination  of  certain  provisions  laid  down  by  law,  regulation  or
administrative action in Member States concerning the pursuit of television broadcasting activities
http://europa.eu.int/comm/avpolicy/regul/twf/newint_en.htm

23

                                                
(i) the specific instruments of European audiovisual policy to be taken into account with
a view to strengthening its overall coherence;

(ii) the relevant interaction with other Community policies which affect or are likely to
affect the implementation of the “television without frontiers” Directive; and

(iii)  in  the  interest  of  transparency,  the  launch  of  public  consultations  open  to  all
interested  parties,  in  association  with  the  candidate  countries  and  their  citizens.  The
objective  of  these  public  consultations  is  to  stimulate  an  open  debate  on  the  recent
technological  and  market  developments  in  the  audiovisual  sector  and  their  likely
direction  with  a  view  to  providing  the  Commission  with  the  information  necessary  to
assess  whether  there  is  a  need  to  adapt  the  applicable  regulations  and,  if  such  a  need
exists, what principles should be used.

In this respect, it should be pointed out that, pursuant to Article 151 (4) of the Treaty, with a
view  to  respecting  and  promoting  cultural  diversity,  the  Community  takes  cultural  aspects
into account in its actions pursuant to other Treaty provisions.

Furthermore, the Commission now uses impact assessment41 as an instrument for improving
the  quality  and  coherence  of  the  process  of  drawing  up  Community  policies.  Impact
assessment,  which  from  2003  is  to  be  progressively  applied  within  the  Commission  to  all
important  initiatives,  is  a  measure  which  forms  part  of  the  action  plan  for  improving
regulation42.  Indeed,  at  the  Laeken  Council  the  Commission  undertook  to  implement
principles  for  improving  regulation,  including  a  mechanism  for  assessing  the  impact  of
regulation.  This  undertaking  was  in  follow-up  to  the  Commission  White  Paper  on
governance43.

Impact  Assessment  identifies  the  likely  positive  and  negative  impacts  of  proposed  policy
actions,  enabling  informed  political  judgements  to  be  made  about  the  proposal  and  identify
trade-offs in achieving competing objectives. It also permits to complete the application of the
Protocol on subsidiarity and proportionality annexed to the Treaty of Amsterdam.

1.1.

Specific instruments of European audiovisual policy

The internal dimension of European audiovisual policy is based on a combination of different
specific Community instruments. It consists, inter alia44, of binding legislative measures (e.g.,
the  “television  without  frontiers”  Directive45),  funding  mechanisms  (e.g.,  the  Media  +46

41

42

43

44

45

Communication from the Commission on impact assessment (COM (2002) 276 final, 5.6.2002).
http://europa.eu.int/eur-lex/en/com/cnc/2002/com2002_0276en01.pdf
Communication  from  the  Commission  -  Action  plan  “Simplifying  and  improving  the  regulatory
environment” (COM (2002)278 final, 5.6.2002, and COM (2002) 278/2 final, 6.6.2002.
http://europa.eu.int/eur-lex/en/com/cnc/2002/com2002_0278en02.pdf
“European governance, a White Paper”, COM(2001) 428 final, 25.7.2001.
http://europa.eu.int/comm/governance/white_paper/index_en.htm
Not  mentioned  here  are  Commission  Communications  laying  down  guidelines,  such  as  the
Communication  from  the  Commission  on  certain  legal  aspects  relating  to  cinematographic  and  other
audiovisual  works  (COM  (2001)  534  final),  the  Communication  from  the  Commission  on  the
application  of  State  aid  rules  to  public  service  broadcasting  (COM  (2001)  C320/04)  or  the
Communication from the Commission on the application of the general principles of free movement of
goods and services - Articles 28 and 49 EC - Concerning the use of satellite dishes (COM (2001) 351
final, 27.5.2001).

http://europa.eu.int/comm/avpolicy/regul/twf/newint_en.htm

24

                                                
programme,  the  “i2i  Audiovisual”47 initiative)  and  non-binding  instruments  (e.g.,  the  1998
Council Recommendation on the protection of minors and human dignity48).

The  different  interacting  audiovisual  policy  instruments  are  based  on  the  principles  of  the
national and Community levels complementing each other and of Community added value.

With a view to reinforcing the synergy with the “television without frontiers” Directive,
the  Commission  will  take  into  account  all  the  specific  European  audiovisual  policy
instruments in the implementation of the present work programme.

1.1.1. Directives

In  addition  to  the  “television  without  frontiers”  Directive,  which  constitutes  the  legal
framework  for  the  pursuit  of  television  broadcasting  activities  in  the  European  Union,
reference  should  be  made  to  Directive  93/83/EEC  “cable  and  satellite”49,  which  aims  to
coordinate  certain  rules  concerning  copyright  and  rights  related  to  copyright  applicable  to
satellite  broadcasting  and  cable  retransmission  with  a  view  to  facilitating  cross-border
broadcasting of audiovisual programmes.

1.1.2. Recommendations

On 24 September  1998,  the Council adopted  a Recommendation  on the  development of  the
competitiveness of the European audiovisual and information services industry by promoting
national  frameworks  aimed  at  achieving  a  comparable  and  effective  level  of  protection  of
minors  and  human  dignity50.  This  text,  which  complements  Chapter  V  of  the  “television
without  frontiers”  Directive  on  the  protection  of  minors,  is  the  first  Community  legal
instrument covering all the electronic media, including the content of on-line audiovisual and
information services transmitted via the Internet.

This Recommendation, a legal act provided for by Article 249 of the EC Treaty and aimed at
providing  guidelines  for  national  legislation,  complements  the  regulatory  framework  by
establishing  guidelines  for  the  development  of  national  self-regulation  of  the  protection  of
minors and human dignity.

In application of this document, and without prejudice to the responsibility of broadcasters in
this area, television channels are invited to experiment with new parental control mechanisms
linked to the  development of  digital  television  (personal  codes,  filtering  software  or  control
chips).  Furthermore,  providers  of  on-line  or  Internet  services  are  invited  to  adopt  codes  of
good conduct with a view to clarifying and better applying the laws in force.

The  implementation  of  this  Recommendation  provides  an  interesting  illustration  of  the
complementary  linkage,  at  Community  level,  between  legislative  and  self-regulatory

46

47

48

49

50

http://europa.eu.int/comm/avpolicy/mediapro/media_en.htm

http://europa.eu.int/comm/avpolicy/media/index_en.html

OJ L 270, 7.10.1998, p. 48.

http://europa.eu.int/comm/avpolicy/regul/new_srv/recom-intro_en.htm

http://europa.eu.int/comm/internal_market/en/intprop/docs/index.htm

http://europa.eu.int/comm/avpolicy/regul/new_srv/recom-intro_en.htm

25

                                                                                                                                                        
measures  involving  all  stake-holders  with  a  view  to  strengthening  the  protection  of  minors
and human dignity, including on the Internet.

1.1.3. Funding measures

Among the support  measures implemented  by the Commission, mention  should  be made  of
the  MEDIA  Programme  (2001-2005)51  which  aims  to  strengthen  the  competitiveness  of  the
European  audiovisual  industry  through  a  series  of  incentives  and  financial  support  for  the
training  of  professionals,  the  development  of  production  projects  and  the  distribution  and
promotion  of  cinematographic  works  and  audiovisual  programmes.  Technological
developments are taken into account in the context of specific support to pilot projects52.

The  “i2i  Audiovisual”  initiative,  an  action  of  the  European  Investment  Bank  (EIB)  and  the
European  Investment  Fund  (EIF)  in  conjunction  with  the  European  Commission,  also
deserves  special  mention.  This  is  a  new  package  of  actions53  aimed  at  strengthening  the
financial base of the audiovisual sector and accelerating its adaptation to digital technologies.
Complementing  the  Media  Plus  Programme,  the  objective  of  this  “financial  package”  is  to
increase  the  competitiveness  of  the  audiovisual  industry  and  promote  the  development  of
audiovisual products with a European content.

Other  support  mechanisms  include  the  “eContent”  multiannual  Community  programme
(2001-2005)  aimed  at  promoting  the  development  and  use  of  European  digital  content  on
global networks and linguistic diversity in the information society54.

1.2.

Links with other Community policies

It should be stressed that, in addition to the direct application of the provisions of the Treaty,
and  in  particular  those  governing  the  four  fundamental  freedoms  derived  from  primary  law
(free movement of services, goods, capital and people), several European Union policies are
connected  with  European  audiovisual  policy.  Examples  include  competition,  intellectual

51

52

53

54

The Media Plus Programme is based on the following Decisions: Council Decision No 2000/821/EC of
20 December 2000 on the implementation of a programme to encourage the development, distribution
and  promotion  of  European  audiovisual  works  (MEDIA  Plus  -  Development,  Distribution  and
Promotion) (2001-2005) and Decision No 163/2001/EC of the European Parliament and of the Council
of 19 January 2001 on the implementation of a training programme for professionals in the European
audiovisual programme industry (MEDIA-Training) (2001-2005).

http://europa.eu.int/comm/avpolicy/media/index_en.html

http://europa.eu.int/comm/avpolicy/media/pilot_en.html

(i)  credit  lines  (or  “global  loans”)  from  the  EIB  to  the  specialised  banking  sector  for  the  funding  of
small  and  medium-sized  enterprises  (SMEs)  in  audiovisual  creation,  audiovisual  technology  or  the
performance  of  subcontracting  in  this  sector;  (ii)  medium-  and  long-term  funding  by  the  EIB,  in
cooperation with the banking sector, of infrastructure investments by large private or public television,
production or audiovisual distribution groups; (iii) financing of specialised venture capital funds via EIF
holdings;  and  (iv)  development  of  joint  EIB  Group  and  European  Commission  actions  in  favour  of
cultural  creation  or  the  development  of  the  film  or  television  industry  (finance  training  sessions,
cooperation between European distributors, etc.).

Council Decision 2001/48/EC of 22 December 2000, OJ L14, 18.1.2001.

http://europa.eu.int/comm/secretariat_general/sgc/aides/forms/infso02_en.htm

26

                                                
property55 and media56, information society - notably the Directive on electronic commerce57
and the “electronic communications” package58, or consumer protection59.

These policies thus interact and influence each other in the process of pursuing the Treaty’s
objectives.

It is also in this context that the particular significance of the provisions of Article 151, fourth
paragraph,  of  the  EC  Treaty,  according  to  which  the  Community,  in  order  to  respect  and
promote  the  diversity  of  its  cultures,  takes  account  of  cultural  aspects  in  actions  taken
pursuant to other provisions of the Treaty, can be seen.

With a  view  to  strengthening  the  overall  coherence  of  European  audiovisual  policy,  in
the context of the implementation of the present work programme the Commission will
take account of relevant interactions between these different policies.

In the specific  case of intellectual property rights, it should be recalled that they  provide  an
incentive  to  creation  and  investment  in  numerous  artistic  fields,  including  the  audiovisual
sector  (television,  film,  music,  etc.),  and  contribute  to  competitiveness,  employment  and
innovation  in  the  information  society.  These  rights  have  been  subject  to  considerable
European  harmonisation  aimed  at  removing  obstacles  to  trade  and  adapting  the  applicable
framework to new forms of exploitation.

Thus,  Directive  93/83/EC  “cable  and  satellite”,  which  is  linked  to  the  “television  without
frontiers” Directive, aims to coordinate certain rules concerning copyright and rights related
to  copyright  applicable  to  satellite  broadcasting  and  cable  retransmission  so  as  to  facilitate
cross-border broadcasting of audiovisual programmes. As part of the follow-up to the report
on  its  application  adopted  by  the  Commission  on  26 July  200260,  this  Directive  is  currently

55

56

57

58

59

60

Directive  2001/29/EC  of  the  European  Parliament  and  of  the  Council  of  22  May  2001  on  the
harmonisation of certain aspects of copyright and related rights in the information society, OJ L  167,
22.6.2001, p. 10.

Council  Directive  93/83/EEC  of  27  September  1993  on  the  coordination  of  certain  rules  concerning
copyright and rights related to copyright applicable to satellite broadcasting and cable retransmission,
OJ  L  248,  6.10.1993;  Report  from  the  Commission  Report  from  the  European  Commission  on  the
application of Council Directive 93/83/EEC on the coordination of certain rules concerning copyright
and  rights  related  to  copyright  applicable  to  satellite  broadcasting  and  cable  retransmission  (COM
(2002) 430 final, 27.7.2002; Directive 98/84/EC of the European Parliament and of the Council of 20
November 1998 on the legal protection of services based on, or consisting of, conditional access, OJ L
320,  28.11.1998,  p.54;  and  Communication  from  the  Commission  on  the  application  of  the  general
principles  of  free  movement  of  goods  and  services  -  Articles  28  and  49  EC  -  Concerning  the  use  of
satellite dishes (COM (2001) 351 final, 27.5.2001).

http://europa.eu.int/comm/internal_market/en/intprop/docs/index.htm.

Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal
aspects of information society services, in particular electronic commerce, in the Internal Market, OJ L
178, 17.7.2000, p. 1.

http://europa.eu.int/information_society/topics/telecoms/regulatory/maindocs/index_en.htm

See  Communication  from  the  Commission  -  Follow-up  Communication  to  the  Green  Paper  on  EU
Consumer Protection, Brussels, 11.6.2002, COM (2002) 289 final. Cf. work in progress on a framework
directive at the following address:

http://europa.eu.int/comm/consumers/policy/developments/fair_comm_pract/follow_green_en.html

COM (2002) 430 final.
http://europa.eu.int/comm/internal_market/en/media/cabsat/report1993-83/index.htm.

27

                                                
subject to a process of research and reflection in the Directorate-General for Internal Market
(working sessions, in close cooperation with the various interested parties and the competent
national  authorities).  The  Commission  will  ensure  that  the  possible  review  of  the  two
instruments will be carried out in a coherent and coordinated manner with a view to furthering
the development of the different channels for broadcasting audiovisual content, while taking
into  account  the  interests  of  all  interested  parties  (notably  rights  holders,  broadcasters  and
viewers).

The  Commission  will  also  take  into  consideration  any  relevant  interface  between  the
“television  without  frontiers”  Directive  and  Directive  2001/29/EC  of  the  European
Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of
copyright and related rights in the information society61 and the Directive on electronic
commerce62.

1.3.

Public consultations

The present work programme represents an important step towards a better understanding of
all  the  economic,  cultural  and  societal  challenges  linked  to  the  implementation  of  the
“television  without  frontiers”  Directive.  It  follows  on  from  the  1999  Commission
Communication  on  the  principles  and  guidelines  for  the  Community's  audiovisual  policy  in
the digital age63.

With a view to gathering elements of appreciation  and indications  on  the  need  to  update  or
adapt,  in  future,  the  “television  without  frontiers”  Directive  and,  where  applicable,  adopt
related or complementary measures, the Commission will launch public consultations open to
all interested parties and involving the candidate  countries and their citizens during  the  first
quarter of 2003.

In this context64, the Commission will hold a series of public hearings during the first half of
2003 and will invite all interested parties to submit written comments on the various specific
themes identified in the present work programme.

These consultations should make it possible to assess whether the economic and technological
development of the sector requires adaptation of existing regulatory measures, notably taking

61

62

63

64

Directive  2001/29/EC  of  the  European  Parliament  and  of  the  Council  of  22  May  2001  on  the
harmonisation of certain aspects of copyright and related rights in the information society, OJ L  167,
22.6.2001, pp. 10-19.
http://europa.eu.int/comm/internal_market/en/intprop/docs/index.htm

Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal
aspects  of  information  society  services,  in  particular  electronic  commerce,  in  the  Internal  Market
('Directive on electronic commerce'), OJ L 178, 17.7.2000, pp. 1-16.
http://europa.eu.int/comm/internal_market/en/ecommerce/index.htm

Communication  from  the  Commission  to  the  Council,  the  European  Parliament,  the  Economic  and
Social  Committee  and  the  Committee  of  the  Regions  of  14  December  1999  on  the  principles  and
guidelines for the Community's audiovisual policy in the digital age (COM (1999) 657 final).
http://europa.eu.int/comm/avpolicy/legis/key_doc/legispdffiles/av_en.pdf
Cf. Commission work “towards a reinforced culture of consultation and dialogue - proposal for general
principles and minimum standards for consultation of interested parties by the Commission”.

28

                                                
into  account  the  increase  in  the  number  of  channels  for  broadcasting  audiovisual  content.
Special attention will be paid to the principles of proportionality and subsidiarity65.

On  the  basis  of  the  results  of  these  public  consultations,  by  the  end  of  2003  or  the
beginning of 2004 the Commission will submit to the European Parliament, the Council,
the Economic and Social Committee and the Committee of the Regions a communication
accompanied by possible proposals.

II. - WORK PROGRAMME

Pursuant  to  the  provisions  of  the  Treaty66,  the  “television  without  frontiers”  Directive
establishes the legal framework for the free provision of television services in the European
Union  with  a  view  to  promoting  the  development  of  a  European  market  (principles  of
freedom of reception and of retransmission of televised programmes) while taking account of
certain general interest objectives67.

To  this  end,  it  coordinates,  at  Community  level,  national  legislation  in  areas  such  as
determination of the law applicable to broadcasters (principle of country of origin), promotion
of  distribution  and  production  of  European  works,  access  to  events  of  major  importance,
advertising, teleshopping, sponsorship, protection of minors and public order and the right to
reply.

Today, through the impetus of digital technology and the increase in the number of television
channels available on the various  platforms  (terrestrial,  cable,  satellite,  Internet, etc.) and of
new forms of broadcasting and consumption (on-demand television, personal video recorders,
interactive  television,  large  flat-screens,  new  image-compression  technologies,  etc.),  the
audiovisual  sector  is  going  through  profound  changes.  These  developments  have  been  the
motivation behind the Commission’s review of  the interpretation  and  implementation of  the
“television  without  frontiers”  Directive  and  its  proposed  means  for  resolving  possible
problems, while taking into account  legislative  and  regulatory developments in the Member
States.

In particular, with a view to countering risks of legal uncertainty and distortion of competition
and while taking into account the aforementioned general interest objectives, the Commission
must  satisfy  itself  that  recent  developments  in  the  laws,  regulations  and  administrative
practices are compatible with the main objective of free movement of services.

Public consultations will enable all interested parties to submit written comments and to
take  part  in  the  public  hearings.  These  public  consultations  will  be  conducted  on  the
basis of working documents mentioned in the present work programme.

65

66

67

In application of the Protocol on subsidiarity and proportionality annexed to the Treaty of Amsterdam.

Articles  49  of  the  Treaty  prohibit  restrictions  on  the  freedom  to  broadcast  beyond  the  borders  of  the
Member  States.  The  Treaty,  along  with  judgements  of  the  ECJ,  allow  only  three  exceptions  to  this
principle: measures justified on the grounds of public order, public safety and public health.

For a reminder of the general interest objectives, see point 3.1 of the report on implementation.

29

                                                
2.1. GENERAL CONSIDERATIONS

In terms of the future of European regulation, two general considerations must be taken into
account:  the  scope  of  regulation  and  the  linkages  between  the  various  relevant  Community
instruments.

The reflection will notably cover the linkages between legislative measures, co-regulation and
self-regulation.

The  questions  will  be  dealt  with  only  in  the  context  of  the  general  interest  objectives  of
European audiovisual policy and, in this regard, with the aim of ensuring the free movement
of services through the identification and removal of possible obstacles to the single market.

In this context, the application of the principles of proportionality and subsidiarity as defined
in the Protocol annexed to the Treaty of Amsterdam will also be taken into account.

1.

Scope

As regards scope, certain principles which form the basis of existing  Community  regulation
should be borne in mind.

First  of  all,  it  should  be  stressed  that  the  “television  without  frontiers”  Directive  is
“technologically  neutral”,  insofar  as  its  provisions  apply  indiscriminately  to  analogue  and
digital television, regardless of broadcasting method (terrestrial, satellite, cable, etc.).

Secondly,  it  should  be  recalled  that  positive  Community  law  makes  an  important
distinction68  between  “television  broadcasting”  services,  which  concern  television
programmes intended for the reception by the public, and “information society services”

68

Thus,  Article  1(a)  of  the  “television  without  frontiers”  Directive  defines  “television  broadcasting”  as
“the initial transmission by wire or over the air, including that by satellite, in unencoded or encoded
form, of television programmes intended for reception by the public. It includes the communication of
programmes between undertakings with a view to their being relayed to the public. It does not include
communication services providing items of information or other messages on individual demand such
as telecopying, electronic data banks and other similar services”.

Article  1(2)  of  Directive  98/34/EC  of  the  European  Parliament  and  of  the  Council  of  22  June  1998
laying  down  a  procedure  for  the  provision  of  information  in  the  field  of  technical  standards  and
regulations, as amended  by  Directive  98/48/EC  of  the  European  Parliament  and  of  the  Council  of  20
July  1998,  defines  an  “information  society  service”  as  “any  service  normally  provided  for
remuneration,  at  a  distance,  by  electronic  means  and  at  the  individual  request  of  a  recipient  of
services”. This latter Directive explicitly provides that television  services - within the  meaning of  the
“television without frontiers” Directive - and broadcasting services are not information society services
as they are not supplied on individual demand. Cf. Annex V, “Indicative list of services not covered by
the second subparagraph of point 2 of Article 1”, to the Directive.

http://europa.eu.int/scadplus/leg/en/lvb/l21003.htm; see also recital 18 of Directive 2000/31/EC.

The  definition  of  “information  society  services”  also  features  in  Directive  98/84/EC  of  the  European
Parliament and of  the  Council  of  20  November  1998  on  the  legal  protection  of  services  based  on,  or
consisting  of,  conditional  access,  in  Directive  2000/31/EC  of  the  European  Parliament  and  of  the
Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic
commerce, in the Internal Market, and in the Directive of the European Parliament and of the Council
on the approximation of laws, regulations and administrative provisions of the Member States relating
to the advertising and sponsorship of tobacco products (political agreement of the Council of 2.12.2002
on the amended proposal of the European Parliament - not yet published).

30

                                                
supplied on individual demand. The notion of “individual request of a recipient of services”
refers to a service supplied by transmission of data on individual demand.69

“Television broadcasting” services are covered by the “television without frontiers” Directive.
“Information  society  services”  are  notably  covered  in  the  framework  of  the  Directive  on
electronic commerce70.

The  Commission  is  not  aiming  at  challenging  the  distinction  made  in  the  acquis
communautaire between information society services and services covered by the “television
without frontiers” Directive.

In the light of recent and likely future market and technological developments, for each
of the themes defined in point 3.2 the Commission will examine whether the provisions
of the Directive have fully met the target objectives and whether it is necessary to take
measures  at  Community  level.  If  so,  it  will  examine  whether  it  would  be  preferable  to
review  the  provisions  currently  contained  in  the  Directive,  to  amend  them  or  to  draft
other  measures  for  achieving  the  objectives  of  the  Directive.  The  questions  will  be
considered  only  from  the  perspective  of  the  general  interest  objectives  targeted  by  the
“television without frontiers” Directive. Questions which will therefore not be addressed
include,  in  particular,  those  relating  to  broadcasting,  to  access  or  regulation  of
broadcasting-related transactions, to access, including access to associated resources, to
“must-carry”  rules,  to  standardisation,  which  is  covered  by  the  new  regulatory
framework71  on  electronic  communications  networks  and  services,  or  to  regulation  of
transactions.

2.

Linkages between regulation, co-regulation and self-regulation

The review will also consider the type of regulatory measure to apply.

In its White  Paper on European  governance72,  the European Commission proposed  to  make
the  drafting  of  European  Union  policies  a  more  open  process  in  order  to  ensure  wider
participation  by  citizens  and  organisations  in  their  design  and  implementation.  The  White
Paper  encourages  greater  use  of  the  different  public  policy  instruments,  in  particular  co-
regulation73  and  self-regulation.  The  Commission  has  adopted  an  action  plan  for  improving
regulation and simplifying the regulatory environment74.

69

70

71

72

73

74

Cf. Article 1, point 2, second paragraph, third indent of Directive 98/34/EC of the European Parliament
and  of  the  Council  of  22  June  1998  laying  down  a  procedure  for  the  provision  of  information  in  the
field  of  technical  standards  and  regulations,  as  amended  by  Directive  98/48/EC  of  the  European
Parliament and of the Council of 20 July 1998.

Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal
aspects of information society services, in particular electronic commerce, in the Internal Market, OJ L
178, 17.7.2000, pp. 1-16.

http://europa.eu.int/comm/internal_market/en/ecommerce/index.htm
http://europa.eu.int/information_society/topics/telecoms/regulatory/maindocs/index_en.htm

European Governance, A White Paper, COM(2001) 428 final, 25.7.2001.
http://europa.eu.int/comm/governance/white_paper/index_en.htm

For details of the conditions for using co-regulation, see in particular p. 25.

Communication  from  the  Commission  -  Action  plan  “Simplifying  and  improving  the  regulatory
environment”, COM (2002) 278/2 final, 6.6.2002.
http://europa.eu.int/comm/governance/suivi_lb_en.htm

31

                                                
The  Commission  has  undertaken  to  clarify  the  choice  and  use  of  the  various  legislative
instruments  at  its  disposal.  However,  it  would  like  to  recall  that  Directives  must  be  used  in
compliance  with  the  spirit  and  the  letter  of  the  Treaty:  Directives  must  revert  to  being
instruments  which  define  a  legal  framework  and  the  objectives  to  be  achieved.  The
Commission  would  therefore  like  to  limit  as  much  as  possible  the  use  of  Directives  to
establishing  the  general  framework,  including  the  objectives,  the  deadlines  and  the  main
elements of the legislation. It would be up to the legislator to take a political decision on these
main elements and to have the technical details set out in implementing measures.

Furthermore, the Commission would like to stress that alternatives to regulation may, where
relevant,  be  used  without  infringing  the  provisions  of  the  Treaty  or  the  prerogatives  of  the
Community legislator.

Thus,  co-regulation  and,  in  certain  cases,  self-regulation  are  tools  which,  under  clearly
defined  conditions,  may  enable  the  achievement  of  Treaty  objectives  while  simplifying  the
legislative  work  and  the  legislation  itself  by  taking  into  account  the  principles  of
proportionality  and  subsidiarity  without  jeopardising  the  fundamental  principles  of  the
Internal Market.

Within the framework of a legislative measure, co-regulation allows for the implementation
of the objectives defined by  the  Community  by means  of measures taken  by  the recognised
stakeholders  in  a  given  area.  It  might  prove  a  useful  tool  for  adapting  legislation  to  the
problems and sectors concerned, focusing the legislative work on the most important aspects
and, finally, taking advantage of the experience of stakeholders, notably operators and social
partners. Recourse to co-regulation in the framework of a legislative measure must add value
to the  pursuit  of  the  general  interest.  This  approach  may prove useful where flexible and/or
urgent  measures  are  required,  provided  that  these  measures  do  not  require  uniform
enforcement throughout the Community and do not affect competition. Within this regulatory
framework,  with  a  view  to  guaranteeing  legal  certainty  the  legislator75  defines  the  main
aspects  of  the  legislation:  the  objectives  to  be  achieved,  the  deadlines  and  implementing
mechanisms, the methods for monitoring enforcement and possible sanctions. The  legislator
decides to what extent the design and application of implementing measures may be entrusted
to stakeholders on account of their recognised experience on the issue. Where this mechanism
fails  to  produce  the  expected  results,  the  Commission  reserves  the  right  to  submit  a  classic
legislative proposal to the legislator.

Self-regulation refers to a variety of practices, common rules, codes of conduct or voluntary
agreements  defined,  on  a  voluntary  basis,  by  economic  and  social  actors,  NGOs  or  other
organised  groups  themselves  for  the  purpose  of  governing  and  organising  their  activities.
Unlike  co-regulation,  self-regulation  does  not  necessarily  imply  legal  measures.  When  such
practices  exist  and  enable  the  achievement  of  the  Treaty’s  objectives,  the  Commission  may
consider  it  preferable  not  to  put  forward  a  legislative  proposal.  It  may  also  suggest,  for
example by means of a Recommendation, recourse to self-regulation by the parties concerned
with  a  view  to  avoiding  the  adoption  of  a  Regulation,  without  however  ruling  out  the
possibility of legislating if self-regulation proves inadequate or ineffective.

75

Even  where  the  Commission  proposes  legislation  which  allows  for  co-regulation,  it  will  be  for  the
European Parliament and the Council to adopt the proposal. Cf. conditions for recourse to co-regulation,
p. 13 of the aforementioned Communication (COM (2002) 278 final/2).

32

                                                
In the context of the review, the key question may be summed up as follows: “What are the
effective  and  proportional  means,  at  Community  level,  for  ensuring  respect  for  general
interests  in  the  digital  environment?”.  As  far  as  the  Commission  is  concerned,  the  digital
revolution does  not  remove  the  obligation  to  identify,  at  Community  level,  relevant  general
interests  and,  when  necessary,  to  ensure  respect  for  these  interests  through  regulation,
complementary co-regulation or, in some cases, self-regulation.

In accordance with the principle of subsidiarity76, this work programme will take into account
all these elements.

2.2.

SPECIFIC THEMES

Theme 1: Access to events of major importance to society

During  the  revision  of  the  Directive  in  1997,  an  Article  3  bis  was  introduced  allowing
Member States to take measures, in accordance with Community law, to ensure that television
broadcasting  bodies  within  their  jurisdiction  do  not  broadcast  events  judged  to  be  of  major
importance to society on an exclusive basis which denies a significant part of the public the
possibility  of  following  these  events,  live  or  pre-recorded,  free  of  charge.  Based  on  the
principle of mutual recognition, this mechanism applies only to television broadcasting bodies
within  the  meaning  of  Article  1  (b)  of  the  Directive.  The  Commission  does  not  wish  to
extend  this  mechanism.  However,  it  believes  that  it  would  be  useful  to  examine  the
wording of Article 3 bis with a view to improving its implementation.

Theme 2: Promotion of cultural diversity and of competitiveness of the European
programme industry

In line with Article 151 (4) of the Treaty, which imposes an obligation on the Community to
take cultural aspects into account in its action under other provisions of the Treaty with a view
to  respecting  and  promoting  cultural  diversity77,  the  dual  objective  of  promoting  cultural
diversity  and  the  competitiveness  of  the  European  programme  industry  finds  its  concrete
expression in a  series  of  measures  in  favour  of  the  distribution  and  production  of  European
television  programmes  contained  in  the  “television  without  frontiers”  Directive  This
mechanism,  which  is  linked  to  complementary  financial  support  mechanisms  such  as  the
Media  programme,  is  based  on  the  provisions  contained  in  Chapter  III  of  the  “television
without frontiers” Directive: Article 4 (promotion of European works), Article 5 (promotion
of  European  works  by  independent  producers),  Article  6  (definition  of  “European  works”),
Article 7 (chronology for broadcasting cinematographic  works)  and Article 9  (exemption of
local television broadcasts not forming part of a national network).

Article 4 (3) of the Directive provides  for a  review  of  the  application  of  this  Article  on  the
basis  of  a  Commission  report  which,  with  regard  notably  to  information  provided  by  the
Member  States,  takes  into  account  the  evolution  of  the  Community  market  and  the

76

77

Cf. Protocol on subsidiarity and proportionality annexed to the Treaty of Amsterdam.

Ex Article 128 (4). Cf. recital 25 of Directive 97/36/EC of the European Parliament and of the Council
of 30 June 1997 amending Council Directive 89/552/EEC on the coordination of certain provisions laid
down by law, regulation or administrative action in Member States concerning the pursuit of television
broadcasting activities.

http://europa.eu.int/comm/avpolicy/regul/twf/newint_en.htm

33

                                                
international context. Article 25 bis also specifies that this review must take into account an
independent study on the impact of the measures concerned at Community and national level.

In addition, in its follow-up to the “Cinema” Communication78, the Commission identified a
series  of  questions  to  be  considered  in  the  context  of  the  review  of  the  “television  without
frontiers” Directive. The first series of questions concern the definition of “European work”
and the definition of “independent producer and independent production”. The second series
of  questions  concern  the  chronology  for  the  broadcast  of  cinematographic  works  and  the
definition and exploitation of on-line rights.

In this respect, the  present work  programme  plans:  (i) to  commission  the  independent
study foreseen by Article 25 bis of the Directive; (ii) to give further consideration to the
application  of  Chapter  III  of  the  “television  without  frontiers”  Directive;  and  (iii)  to
pursue  exchanges  of  views  on  the  series  of  questions  identified  in  the  context  of  the
“Cinema” Communication.

Theme 3: Protection of general interests in television advertising, sponsorship, teleshopping
and self-promotion

Chapter  IV  of  the  Directive  lays  down  a  series  of  rules  on  advertising,  sponsorship  and
teleshopping,  including  rules  on  advertising  aimed  at  minors,  covering  broadcasting  of
television programmes. It provides rules concerning the amount of advertising allowed (daily
limits  and  timetables,  Article  18),  the  number  of  and  conditions  for  interruptions  for
advertisements (Article 11) and rules applicable to the content and presentation of advertising
spots (Articles 10, 12, 13, 14, 15 and 16). Specific rules apply to sponsorship (Article 17).

The  aim  of  the  Directive  is  to  protect  the  interests  of  television  viewers  by,  for  example,
establishing  a  clear  distinction  between  editorial  content  and  advertising,  and  to  protect  the
integrity  and  value  of  audiovisual  works  and  rights  holders  by,  for  example,  avoiding
excessive interruptions. With reference to the principle that regulation should be limited to the
minimum  necessary  to  achieve  the  objectives  sought,  the  Commission  will  specifically
examine  the  proportionality  of  the  existing  measures.  In  particular,  it  will  be  necessary  to
examine whether certain rules limiting the quantity of advertising might be relaxed in the light
of the degree of user choice and control.

In  addition, as far  as non-linear programming  is  concerned,  it  will  be  necessary  to  examine
whether  specific  rules  are  required,  notably  with  the  aim  of  guaranteeing  the  separation
between editorial content and commercial messages.

Various Member States have, in accordance with Article 3 of the Directive, adopted stricter
and more detailed rules than those of the Directive, for example in the area of sponsorship (on
the  length  of  the  message,  the  sponsor  or  the  content  of  the  message).  Similarly,  different
Member  States  have  applied  different  interpretations  of  the  Directive  with  regard  to  new
advertising techniques, such as split screens, virtual advertising or interactive advertising. The
Commission  will  examine  the  legal  implications  of  new  advertising  techniques  with  a
view  to  determining  whether  the  existing  legislation  can  cover  these  techniques  in  an
appropriate  manner  or  needs  to  be  adapted.  The  Commission  will  also  examine  the
economic and financial implications of possible adaptations.

78

Cf. Point 8 of the “Cinema” Communication.
http://europa.eu.int/comm/avpolicy/regul/cine1_en.htm

34

                                                
During  its  review,  the  Commission  will  take  into  account  the  possibility  of  self-
regulation with regard to the rules on advertising, while bearing in mind that these rules
are supposed to ensure or even improve legal certainty and must be compatible with the
principle of free movement of services.

Furthermore,  as  far  as  the  work  on  audiovisual  policy  and  the  future  framework
directive  on  fair  commercial  practices  is  concerned,  it  will  be  necessary  to  ensure
coherence  and  compatibility,  as  pointed  out  in  the  Follow-up  Communication  to  the
Green Paper on Consumer Protection79.

Theme 4: Protection of minors and public order - The right to reply

- Protection of minors and public order

Articles 22 and 22 bis of the Directive lay down principles relating to the protection of minors
and  public  order  which  the  Member  States  must  observe.  The  Articles  provide  that  the
Member States shall put in place appropriate measures and mechanisms (selection of the time
of broadcast, technical measures aimed at ensuring that minors in the area of transmission will
normally not hear or see these broadcasts  or the introduction of  an acoustic signal or visual
identification symbol) aimed at ensuring that these principles are observed. These principles
and  mechanisms  will  be  subject  to  review  during  public  consultations,  not  least  in  the
light of recent technological developments.

Article  2  bis  of  the  Directive  provides  that  the  Member  States  shall  ensure  freedom  of
reception and shall not restrict retransmission on their territory of television broadcasts from
other  Member  States  for  reasons  which  fall  within  the  fields  coordinated  by  the  Directive.
However,  the  Member  States  may,  subject  to  certain  conditions,  temporarily  derogate  from
this  provision  where  a  television  broadcast  coming  from  another  Member  State  manifestly,
seriously  and  gravely  infringes  the  aforementioned  Articles  22  and  22  bis.  In  this  case,  the
Member State is required to notify the television broadcaster concerned and the Commission
of its intentions. It  is also  required to  consult with  the  broadcasting  Member State and with
the  Commission.  Certain  aspects  of  this  derogation  from  the  country  of  origin  rule  on
which  the  entire  Directive  is  based,  including  procedural  questions,  will  be  subject  to
review during public consultations with a view to a possible clarification.

The  provisions  of  the  Directive  on  the  protection  of  minors  and  human  dignity  apply  to
television  broadcasting  while  those  of  the  Council  Recommendation  on  the  protection  of
minors and human dignity80 cover all the audiovisual and information services, including on-
line  services.  On  20  February  2002,  the  European  Parliament  adopted  a  report81  on  the
assessment report from the Commission  to the Council and  the European Parliament on  the

79

80

81

Cf. footnote 59.

Council  Recommendation  of  24  September  1998  on  the  development  of  the  competitiveness  of  the
European  audiovisual  and  information  services  industry  by  promoting  national  frameworks  aimed  at
achieving  a  comparable  and  effective  level  of  protection  of  minors  and  human  dignity,  OJ  L  270,
7.10.1998, p. 48.

http://europa.eu.int/comm/avpolicy/regul/new_srv/recom-intro_en.htm

http://www.europarl.eu.int/plenary/default_en.htm

35

                                                
application  of  the  Recommendation82.  This  report  stresses  the  importance  of  the  self-
regulation  approach  in  this  area  and  calls  on  all  stakeholders  to  continue  their  efforts  to
guarantee  the  protection  of  minors  and  human  dignity.  It  calls  on  the  Member  States  to
develop  an  approach  which  establishes  common  criteria  for  a  comparable  description  of
audiovisual  content  while  stressing  that  the  assessment  of  content  should  –  not  least  in  the
light  of  cultural  differences  –  remain  the  preserve  of  national  or  regional  authorities  while
assessment  systems  for  the  various  media  should  be  better  coordinated.  Finally,  the  report
calls  on  the  Commission  to  draw  up  a  further  report  on  the  implementation  of  the
Recommendation  with  a  view  to  assessing  progress.  The  Commission  intends  to  finalise
this new assessment report  by the end of 2003  so as  to enable further  consideration of
the linkages between the relevant provisions on the protection of minors contained in the
“television without frontiers” Directive and in the Recommendation.

– Right to reply

According  to  Chapter  VI  of  the  Directive,  any  natural  or  legal  person,  regardless  of
nationality,  whose  legitimate  interests,  in  particular  reputation  and  good  name,  have  been
damaged  by  an  assertion  of  incorrect  facts  in  a  television  programme  must  have  a  right  of
reply  or  equivalent  remedies.  The  Commission  will  examine  the  implementation  of  the
relevant provisions of the Directive.

Theme 5: Application (related aspects)

The Member States whose authority vis à vis broadcasting bodies is determined by the rules
laid  down in  Article 2 of the  Directive, the  contact committee set  up under the  aegis of the
Commission  by  Article  23  bis  and  the  national  regulatory  authorities  play  a  key  role  in  the
application of the “television without frontiers” Directive. They do so by participating, within
the framework of their respective powers and in accordance with the principle of subsidiarity,
in the achievement of the objectives of the Directive and, at a more general level, the Treaty.

1. Determining the competent authority and the applicable law

According to Article 2 bis of the “television without frontiers” Directive, the Member States
shall  ensure  freedom  of  reception  and  shall  not  restrict  retransmissions  on  their  territory  of
television  broadcasts  from  other  Member  States  for  reasons  which  fall  within  the  fields
coordinated by the Directive (application of the State of origin rule).

With a view to determining the competent authority vis à vis the broadcasting bodies, Article
2 defines establishment as the principal criterion (along with a series of material criteria of a
subsidiary nature). These criteria will be reviewed in the light of established practice and
the case law of the European Court of Justice and of the effectiveness of the subsidiary
criteria defined by Article 2 (4) of the Directive.

82

Report by Mr Christopher Beazley on the evaluation report from the Commission to the Council and the
European Parliament on the application of Council Recommendation of 24 September 1998 concerning
the protection of minors and human dignity, (COM(2001) 106 – C5-0191/2001 – 2001/2087(COS)).

http://www.europarl.eu.int/plenary/default_en.htm

36

                                                
2.

Contact committee

The  contact  committee  set  up  under  the  aegis  of  the  Commission  by  Article  23  bis  of  the
“television without frontiers” Directive plays a key role in the application of these provisions
by the Member States and constitutes an ideal forum for exchanges of views and information
between the Commission and the Member States and between the Member States themselves.

In accordance with the conclusions adopted by the Council on 11 November 2002, under
the Danish Presidency, the Commission will involve the contact committee closely in the
implementation  of  the  present  work  programme.  In  addition,  the  Commission  will
consider  the  possibility  of  strengthening  the  powers  of  the  committee  in  the  context  of
the implementation of Article 3 bis of the Directive which deals with access to events of
major importance for society (application of the principle of mutual recognition).

3.

Role of national regulatory authorities

Consultations  at  European  level  have  led  the  Commission  to  propose  guidelines  for  the
creation of national regulatory bodies in the audiovisual sector.  Thus, in its Communication
on  the  principles  and  guidelines  for  the  digital  age83,  the  Commission  highlighted  the
following aspects:

- Regulatory bodies should be independent of government and operators.

- Questions relating to  content are, by their very nature, mainly national, given their  direct
and close link to the cultural, social and democratic needs of a  given society; in accordance
with the principle of subsidiarity, regulation of content is thus mainly the responsibility of the
Member States.

- Technological  convergence  requires  closer  cooperation  between  national  regulatory
authorities (electronic communications infrastructure, audiovisual sector, competition, etc.).

- Regulatory  bodies  can  contribute  to  the  development  and  implementation  of  self-
regulation.

In the context of the implementation of the “television without frontiers” Directive, the
Commission  will  engage  in  an  exchange  of  views  on  the  possibility  of  strengthening
cooperation  at  European  level  between  the  various  competent  national  regulatory
authorities in the audiovisual field.

Theme 6: Issue not covered by the Directive: access to short extracts of events subject to
exclusive rights

Finally, it would seem appropriate to reflect on the question of whether there are grounds for
introducing,  in  future,  provisions  on  access  to  short  extracts  of  events  subject  to  exclusive
rights.

83

Communication from the Commission of 14 December 1999 to the Council, the European Parliament,
the Economic and Social Committee and the Committee  of  the  Regions  Principles  and  guidelines  for
the Community's audiovisual policy in the digital age (COM (1999) 657 final).
http://europa.eu.int/comm/avpolicy/legis/key_doc/legispdffiles/av_en.pdf

37

                                                
Unlike  the  European  Convention  on  Transfrontier  Television84,  the  “television  without
frontiers” Directive does not contain any such provisions.

Bearing  in  mind  the  interests  at  stake  (event  organisers,  rights  holders,  agencies,
television  broadcasting  bodies,  the  public)  and  taking  into  account  the  fact  that  some
Member States have already adopted specific provisions on the subject, in the interest of
having as broad an information base as possible, this new question should be addressed
with a view to analysing whether the absence of Community provisions creates obstacles
to the internal market.

III. - TIMETABLE AND FUTURE ACTIONS

The  Commission  believes  that  the  principles  and  guidelines  for  Community  audiovisual
policy  in  the  digital  age  contained  in  the  1999  Communication85  remain  valid.  In  order  to
assess the impact of recent technological and market developments on the implementation of
the  “television  without  frontiers”  Directive  and  consider  potentially  necessary  measures  for
strengthening  the  overall  coherence  of  European  audiovisual  policy,  the  Commission  is
planning the following actions.

It should be noted that public consultations will enable all interested parties to submit written
comments  and  take  part  in  public  hearings  on  the  themes  identified  in  the  present  work
programme.

84

85

European Convention on Transfrontier Television (STE No 132), Strasbourg, 5.5.1989, amended by the
Protocol  amending  the  European  Convention  on  Transfrontier  Television  (STE  No  171),  adopted  on
1.10.1998 and entered into force on 1.3.2002.
http://conventions.coe.int/Treaty/EN/Cadreprincipal.htm
It should be noted that the scope of Council of Europe Convention differs from that of the “television
without  frontiers”  Directive  of  the  European  Parliament  and  of  the  Council  in  that  it  only  covers  the
transfrontier movement of television services.

Communication from the Commission of 14 December 1999 to the Council, the European Parliament,
the Economic and Social Committee and the Committee  of  the  Regions  Principles  and  guidelines  for
the Community's audiovisual policy in the digital age (COM (1999) 657 final).
http://europa.eu.int/comm/avpolicy/legis/key_doc/legispdffiles/av_en.pdf

38

                                                
Indicative timetable

First quarter of 2003

Planned actions

-  Launch  of  an  independent  study  on  the  impact  of  Community
and  national  measures  for  promoting 
the  distribution  and
production of European works

- Possible launch of ad hoc complementary studies

March-May 2003

-  Hearing  of  interested  parties  on  the  themes  outlined  in  the
present work programme

Early July 2003

-  Deadline  for  submission  by  interested  parties  of  written
comments on the themes outlined in the present work programme

Third quarter of 2003

-  Adoption  of  an  assessment  report  on  the  implementation  of  the
Recommendation on the protection of minors and human dignity86

Late 2003 – Early
2004

-  Adoption  of  a  Communication  on  the  results  of  public
consultations and possible proposals

86

Council  Recommendation  of  24  September  1998  on  the  development  of  the  competitiveness  of  the
European  audiovisual  and  information  services  industry  by  promoting  national  frameworks  aimed  at
achieving a comparable and effective level of protection of minors and human dignity
http://europa.eu.int/comm/avpolicy/regul/new_srv/recom-intro_en.htm

39