Communication from the Commission to the Council, the European Parliament, the European Economic and Social Committee and the Committee of the Regions - The future of European Regulatory Audiovisual Policy
Date: 2003-12-15
Institutions: European Commission
Subjects: EU policy, European audiovisual area, audiovisual communications policy, audiovisual industry

COMMISSION OF THE EUROPEAN COMMUNITIES

Brussels, 15.12.2003
COM(2003) 784 final

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

THE FUTURE OF EUROPEAN REGULATORY AUDIOVISUAL POLICY

.

EN

  EN

TABLE OF CONTENTS

1.

1.1.

1.2.

1.3.

2.

3.

3.1.

3.2.

3.3.

3.4.

3.5.

3.6.

3.7.

3.8.

3.9.

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

Description of the audiovisual landscape in Europe .................................................... 3

Recent technology and market developments in the audiovisual sector...................... 5

Main audiovisual policy actions by the Commission, Parliament and Council........... 6

Audiovisual Policy in Community context .................................................................. 7

Towards a new governance for European audiovisual media.................................... 12

Definitions and basic concepts................................................................................... 13

General rules .............................................................................................................. 14

Right to information................................................................................................... 15

Promotion of production, chronology........................................................................ 17

Commercial communications..................................................................................... 18

Protection of minors and public order........................................................................ 20

Right of reply ............................................................................................................. 21

Institutional aspects.................................................................................................... 21

The Recommendation on the protection of minors and human dignity..................... 22

3.10.

Co- and self-regulation............................................................................................... 23

4.

Conclusions and timetable ......................................................................................... 24

2

 
1.

INTRODUCTION

The audiovisual media play a central role in the functioning of modern democratic societies
and  in  the  development  and  transmission  of  social  values.  They  have  a  major  influence  on
what  citizens  know,  believe  and  feel.  For  this  cultural  industry  par  excellence,  it  is  of  vital
importance  that  the  operators  in  this  sector  benefit  from  a  clear  and  predictable  policy
environment in which to plan investment and develop their business strategies.

This  Communication  is  intended  to  contribute  to  that  predictability  by  setting  out  the
priorities for Community regulatory policy for the sector in an enlarged Europe in the medium
term.

Community  policy  in  the  audiovisual  sector  is  aimed  at  promoting  the  development  of  the
audiovisual sector in the Union, notably through the completion of the internal market for this
sector,  while  supporting  paramount  objectives  of  general  interest,  such  as  cultural  and
linguistic diversity, the protection of minors and human dignity and consumer protection. To
achieve  these  objectives  the  Community  uses  two  categories  of  complementary  and
interrelated  actions,  which  characterise  this  policy  since  inception,  regulatory  measures  and
support  mechanisms.  During  2003  the  regulatory  framework  and  the  support  instruments,
namely the MEDIA programmes, were subject to a wide public consultation and review. This
Communication presents the Commission’s conclusions on the regulatory framework.  In the
first  quarter  of  2004  the  Commission  will  propose  a  new  generation  of  programmes  in  a
separate document which will follow the present MEDIA programmes.

1.1.

Description of the audiovisual landscape in Europe

According  to  recent  evaluations,1  in  2001  the  European  audiovisual  market  at  large,  i.  e.
including all audiovisual activities and delivery modes, represented nearly 95 billion €, with a
5.2% increase compared to 2000. This increase  confirms a constant positive trend (+35% at
current prices since 1997).

Of the two main industry areas, TV and cinema, the first one represented about two thirds of
the  market  in  2001,  while  cinema,  including  video,  covered  about  15%  of  the  market,  the
balance being covered by recorded music and leisure software.  The  sale  and rental  of  DVD
software  was the  most  dynamic  sector,  ahead  of  cinema  theatrical  release.  The  DVD  sector
confirmed  its  importance  in  2002  when  its  turnover  from  retail  sales  equalled  sales  of
traditional VHS cassettes, against the background of an overall increase in sales of recorded
audiovisual products.

Development of the TV market slowed in 2001 (+4% compared to 2000, +40% compared to
1997), mainly due to unsatisfactory results (-2.1% in 2001 compared to 2000) from traditional
commercial free-to-air  broadcasters  suffering  from  a  global  crisis  in  the  advertising  market.
The overall pay-TV  sector  (packagers,  thematic  channels,  TV  premium  and  home  shopping
companies) confirmed its dynamism with a yearly increase of about 13% (+100% compared
to 1997). Public service broadcasters (including radio) recorded a total turnover of about 27
billion € (28% of the total market, +4% compared to 2000; +20% compared to 1997).

1

Source: European Audiovisual Observatory - Yearbook 2003, volume 1.

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Preliminary indications of the overall trends for 2002 in the EU confirm negative growth for
free-to-air broadcasters (an estimated -3.5 % compared to 2001) and point out a reduced pace
of development for the pay-TV sector (+6% compared to 2001).

The  trade  balance  in  the  audiovisual  sector,  and  in  particular  for  broadcasting,  theatrical
release and video distribution rights for films, is constantly negative, due to a large imbalance
with the US amounting to more than eight billion USD in 2000 (according to estimations by
the European Audiovisual Observatory2).

The  audiovisual  sector  continued  to  diversify  the  supply  of  audiovisual  services  in  the  first
years  of  the  new  millennium.  According  to  certain  estimates,3  the  traditional  EU  analogue
terrestrial broadcasting sector included 40 public service and 47 commercial national channels
at the beginning of 2003.

At the same time, 35 channel packagers were active, and 69 public service channels and 584
channels  from  private  operators  were  distributed  at  national  level  via  means  other  than  the
traditional analogue  terrestrial  techniques.  About  100  regional  channels,  both  public  service
and private, were regularly broadcast while the number of local stations reached 2 000.

Almost all  EU  households are  equipped  with  TV  sets4; many  have  two  sets  or  more.  Cable
and  satellite  transmission  penetration  differs  widely  from  country  to  country,  as  does  the
structure  of  the  industry  (over  6  000  operators).  On  average,  in  2002,  over  half  of  EU
households had access to cable networks, but only 31% of TV households actually subscribe
to cable services. The expansion compared to 2001 is quite low, at about 2.5%. According to
data released by the companies in the satellite transmission industry, a combined estimate of
households directly receiving satellite broadcasts indicates a total of about 38 million in 2002,
with a rather dynamic expansion rate of about 14% over 2001.

Digital broadcasting reached almost 18% of EU households (27.4 million) at the end of 2002,
an  increase  of  about  15%.  This  covers  mainly  satellite  transmission.  Over  22  million
households were using this mode at the end of 2002, while only in a few countries has digital
transmission via cable become popular (3.5 million households EU-wide at the end of 2002).
Digital terrestrial television is operational only in a few Member States (UK, Germany, Spain,
Sweden  and  Finland).  The  provision  of  television  services  over  DSL  is  technically  feasible
but  these  services  are  not  yet  ready  for  full  operational  deployment.  With  the  re-launch  of
digital terrestrial broadcasting in the UK and the first switch-off of analogue broadcasting in
some  areas  of  Germany,  by  mid-2003  this  mode  of  broadcasting  covered  2.1  million
households in the EU.

The average television daily viewing time in 2002 remained significant across all the Member
States, with marginal changes over 2001. Austria remains the country where people watch TV
the least (153 minutes), while Spain is the country where TV is most popular (262 minutes).
The  acceding  countries  have  similar  patterns  of  viewing  time  ranging  form  165  minutes  in
Slovenia to 256 minutes in Hungary.

2

3

4

Source: European Audiovisual Observatory - Yearbook 2003, volume 1.
Source: European Audiovisual Observatory - Yearbook 2002, volume 5.
Source: European Audiovisual Observatory - Yearbook 2003, volume 2.

4

 
                                                
The EU confirmed its leading role in the production of feature films, with 630 productions in
2002 (almost unchanged compared to 2001, +13% compared to 1997) compared to about 450
units  in  the  United  States.  However,  it  must  be  pointed  out  that  a  significant  part  of  the
European production does not attract a critical mass of audience (i. e. audiences of 100 000
cinema  spectators  or  higher).  In  this  context,  it  should  be  noted  that  in  terms  of  financial
investment in film production, US filmmakers  continue to  enjoy production budgets several
times  higher  than  those  for  EU  productions  and  to  benefit  from  much  higher  marketing
expenditure. The recent wave of European co-productions, involving in particular some of the
largest  Member  States,  could  be  an  answer  to  such  an  imbalance.  In  2002,  over  250  films
were released as pan-European co-operations.

In  the  acceding  countries,  86  feature  films  were  produced  in  2002.  Co-productions  remain
rare, both with Member States and with other acceding countries. Several acceding countries
have nevertheless developed a significant production infrastructure.

1.2.

Recent technology and market developments in the audiovisual sector

The main patterns of the audiovisual sector: business models, transmission modes, consumer
behaviour,  consumer  electronic  goods,  etc.,  have  remained  largely  constant  in  recent  years
after undergoing deep changes in the 1990s. With the exception of events affecting the life of
operators, no dramatic changes in market  patterns are foreseen as  a  natural  evolution of the
present landscape.  More  important  developments  could  result  from  commercial  exploitation
of a number of technologies which are already available, but remain largely unused because
of  a  lack  of  clear  added  value  for  the  consumer  or  uncertainties  concerning  the  supporting
business models.

Apart  from  digital  television  the  main  technical  innovations  which  could  contribute
favourably to the development of the audiovisual sector are:

– 

– 

– 

Flat panel displays;

High Definition TV (HDTV); 5

Interactive television.

The  Internet,  with  the  development  of  graphic  browsers  on  the  World  Wide  Web,  has
dramatically  changed  the  way  people  communicate  and  has  opened  up  new  access  to
audiovisual content. However, the Web is still used by substantially fewer people than the TV
viewing public and with different motivations.6 Industry is also exploring use of the internet
protocol  for  digital  broadcasting.  The  Internet  protocol  (IP)  facilitates  the  bundling  of
different types of service, including Information Society services, and would inaugurate a new
phase of convergence at service level, according to technologists.

5

6

A  forthcoming  Commission  Services  Working  Document  will  examine  the  role  of  screen  formats  –
wide-screen and high definition – in stimulating the consumer take-up of digital television.
In  order  to  be  able  to  view  audiovisual  content  via  the  Web  a  broadband  connection  (via  cable  or
Digital  Subscriber  Line  (DSL))  is  required.  In  2002,  according  to  Screen  Digest,  around  13  million
households had a broadband Internet connection in the EU.

5

 
                                                
1.3.

Main audiovisual policy actions by the Commission, Parliament and Council

The  Commission’s  Communication  on  the  “Principles  and  Guidelines  for  the  Community’s
Audiovisual  Policy  in  the  Digital  Age”  in  19997  outlined  the  five  principles  for  regulatory
intervention in the sector. According to these principles, regulatory intervention should be the
minimum necessary to achieve a clearly defined policy goal, guaranteeing legal certainty and
technological neutrality, and enforced as closely as possible to the operators concerned.

Adopted in 1989, the “television without frontiers” (TVWF) Directive8 ("the Directive") was
revised in 1997 to take account of technological and market developments. As confirmed by
the  review  in  2003,9  the  Directive  has  provided  a  stable  and  secure  legal  framework  for
broadcasting services in the Community ever since. The fourth report on the application of the
directive,  adopted  by  the  Commission  on  6  January  200310,  concludes  that  the  Directive  is
generally being applied satisfactorily, the  free movement of television  broadcasting  services
within  the  Community  having  essentially  been  ensured.  The  "Report  on  Television  without
Frontiers"  by  the  European  Parliament11  shares  this  assessment,  as  does  the  Opinion  of  the
Committee  of  the  Regions  of  3  July  2003  on  the  fourth  application  report.  The  Council
Conclusions of 19 December 200212 on the Directive point to the implications of new means
of delivery of audiovisual content, for example interactive media.

The  Council  Recommendation  on  the  protection  of  minors  and  human  dignity13  of  24
September 1998 is the first legal instrument - at EU level - concerning the content of online
audiovisual and information services available on the Internet. The  report on the application
of this Recommendation,14 published in 2001, showed that its overall application was already
quite  satisfactory.  Hotlines  and  awareness  campaigns  have  been  launched  in  nearly  all
Member States, and codes of conduct have been established. The industry has worked on the
creation  of  reliable  Internet  filters  and  the  Commission  has  intensified  international  co-
operation  in  this  field,  as  much  illegal  and  harmful  content  originates  outside  the  European
Union.

7

8

9

10

11

12

13

14

COM(1999) 657 final.
Council Directive 89/552/EEC as amended by Directive 97/36/EC of the European Parliament and of
the Council.
See chapter 3 of this Communication in detail.
COM(2003) 778 final. See also point 5 of the Application Report, which refers to earlier work by the
European Parliament and the Council.
A5-0251/2003.
OJ C 13, 18. 1. 2003, p. 1.
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 (published in the
Official Journal L 270, 7.10.1998, p. 48).
COM(2001) 106 final.

6

 
                                                
The  Commission  Communication  on  certain  legal  aspects  related  to  cinematographic  and
other audiovisual works15 explained the criteria under which state aid to support audiovisual
production may be compatible with the EC Treaty. In addition, it examined the legal deposit
of  audiovisual  works  as  one  of  the  possible  ways  of  conserving  and  safeguarding  the
European  audiovisual  heritage.  The  Council  Resolution  on  the  deposit  of  cinematographic
works in the European Union16 invites Member States to put in place efficient systems for the
deposit and preservation of cinematographic works.

2.

AUDIOVISUAL POLICY IN COMMUNITY CONTEXT

The European audiovisual sector is not only affected by the Community’s content regulation
and support mechanisms. A great number of Community policies have a significant impact on
media enterprises, making a coherent approach all the more essential.

Competition

The Commission monitors compliance with the competition rules, which play a major role in
the audiovisual sector. Competition law contributes to two fundamental goals of the EC. First,
it  contributes  to  open markets in  each sector, including  the  field of audiovisual  services,  by
preventing illegal restrictions of competition. If necessary, the Commission helps opening up
markets  that  are  characterised  by  no,  unfair  or  distorted  competition.  Secondly,  with  theses
instruments the Commission fulfils one of the purposes of the EU in establishing a common
market  according  to  Art  2  TEC  by  ensuring  undistorted  competition  in  the  internal  market
(Article  3  lit  g).  The  rules  applicable  to  the  control  of  mergers  are  designed  to  make  it
possible  for  the  Commission  to  check  that  mergers  do  not  endanger  competition,  which  is
vital  to  the  single  market.  In  this  connection,  the  Commission  examined,  for  example,  the
proposed acquisition of the Italian pay-TV  company  Telepiù by the Australian media  group
Newscorp17.  Moreover,  the  rules  of  Community  law  on  restrictive  agreements  also  have  a
very considerable impact in the audiovisual sector.

State  aid  that  distorts  competition  by  supporting  certain  enterprises  or  the  production  of
certain  goods  is,  in  principle,  prohibited  by  the  Treaty.  However,  the  application  of  the
provisions of the Treaty to the granting of State aid to public service broadcasting must take
account of the provisions of Article 86(2) of the Treaty and of the Communication clarifying
the  application  of  State  aid  rules  to  public  service  broadcasting18.  The  Commission  applied
them in several individual cases in 200319.

15

16

17

18

19

COM(2001) 534 final of 26.9.2001, OJ C 43, 26.9.2002, p. 6. The Commission is planning to follow up
the Council Resolution with a proposal for a Council Recommendation on cintematographic heritage.
Adopted on 24.11.2003.
This  operation  paved  the  way  for  Telepiú  to  be  merged  with  Stream,  the  other  pay-TV  company
operating on the Italian market, which, at that time, was owned 50:50 by Newscorp and Telecom Italia.
Newscorp henceforth  has  control  of  the  new  company,  with  Telecom  Italia  holding  a  minority  share.
Although  the  transaction  has  resulted  in  a  quasi-monopoly  for  pay-TV  on  the  Italian  market,  the
Commission nevertheless took the view that authorising the merger, subject to appropriate conditions,
would be more beneficial to consumers than the disruption that would have been caused by the likely
closure of Stream.
OJEC (2001/C 320/04)
The  Commission  notified  Denmark,  in  a  letter  dated  21  January  2003,  of  its  decision  to  initiate
proceedings under Article 88(2) of the EC Treaty concerning the public  funding of the Danish public
broadcaster  TV2  through  the  licence  fee  and  other  measures.  It  takes  the  view,  at  this  stage  of  the
procedure, that the Danish authorities provided more compensation than was strictly necessary for the

7

 
                                                
With the adoption of the cinema Communication in September 200120, the Commission made
public the criteria for declaring State aid to cinema and TV productions compatible with the
EC Treaty in accordance with Article 87(3)d). This Communication was a major step towards
providing  legal  security  for  the  cinema  sector  and  ensuring  the  continuation  of  support
schemes while respecting the functioning of the internal market. The clear rules spelt out in
the  Communication  have  allowed  a  uniform  assessment  of  the  national  State  aid  schemes
notified  to  the  Commission21.  The  Commission  Services  are  working  on  a  new  cinema
communication,  which  should  be  adopted  before  June  2004,  in  order  to  guarantee  legal
security in line with state aid rules over a longer period of time.

Media pluralism

Measures  to  ensure  media  pluralism  typically  limit  maximum  holdings  in  media  companies
and prevent cumulative control or participation in several media companies at the same time.
Further to such rules, a wide number of other measures - ranging from competition policy to
measures promoting culturally and linguistically diversified content - can contribute to media
pluralism.  The  aim  of  all  measures  in  favour  of  media  pluralism  is  to  protect  freedom  of
expression  and  to  ensure  that  the  media  reflect  a  spectrum  of  views  and  opinions
characteristic  of  a  democratic  society.  In  the  Commission’s  Green  Paper  on  services  of
general interest22 dated 21 May 2003, it was noted that  the protection  of  media  pluralism is
primarily a task for the Member States. At present, secondary Community legislation does not
contain  any  provisions  specifically  aimed  at  safeguarding  the  pluralism  of  the  media.  But
Community law allows the application of national safeguards with regard to media pluralism.
However, a number of existing Community law instruments contribute directly or indirectly
to  the  aim  of  preserving  media  pluralism.  Whilst  the  primary  objective  of  Community
competition law is an economic one, i. e. to ensure a workable competition between market
operators,  it  also  helps  preventing  a  degree  of  cumulative  control  or  participation  in  media
companies which might endanger the existence of a wide spectrum of views and opinions in
the  media  markets23.  The  “television  without  frontiers”  Directive  contributes  to  the
safeguarding of media pluralism through a number of content related provisions, in particular
through  its  provisions  on  the  promotion  of  European  works,  and  of  works  by  independent
producers.

net  costs  of  public  service  broadcasting  payable  by  TV2,  thereby  running  the  risk  of  creating  a
cross-subsidy  of  the  commercial  activities  of  TV2  and  of  distorting  competition.  Moreover,  the
Commission has decided to close the investigation proceedings relating to Italy and Portugal concerning
the arrangements for financing the public broadcasters RAI and RTP.
OJ C 45, 16.2.2002.
Latest  cases:  N  410/02  (Belgium  “tax-shelter”),  N  261/03  (German  FFG).  They  can  be  consulted  at:
http://europa.eu.int/comm/secretariat_general/sgb/droit_com/index_en.htm#aides
COM(2003) 270 final.
See also the specific Protocol on the system of public broadcasting in the Member States appended to
the Amsterdam Treaty.

20

21

22

23

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Copyright

Copyright  protection  plays  an  important  role  for  the  development  of  the  audiovisual  sector.
The  legal  framework  establishing  these  rights  is  set  out  in  Directive  2001/29/EC  on  the
harmonisation  of  copyright  and  related  rights  in  the  Information  Society24.  On  30  January
2003  the  Commission  presented  a  Proposal  for  a  Directive  on  measures  and  procedures  to
ensure the enforcement of intellectual property rights25. The objectives of the proposal are to
harmonise national laws on the means of enforcing intellectual property rights and to establish
a  general  framework  for  the  exchange  of  information  between  the  responsible  national
authorities. The proposed Directive would ensure a level playing field for right holders in the
EU,  reinforce  measures  against  offenders  and  thus  act  as  a  deterrent  to  those  engaged  in
counterfeiting and piracy.

Electronic communications networks and services and Information Society services

In  1999  the  Commission  launched  a  major  review  of  existing  EU  telecommunications  law
which resulted in the adoption of a new regulatory framework for electronic communications
in  2002,  to  be  applied  as  of  July  2003.  The  new  framework  applies  to  all  transmission
infrastructures  while  regulation  of  content  of  broadcast  over  electronic  communications
networks remains outside the scope. The new framework includes in particular provisions on
access  to  spectrum,  authorisation  of  providers  of  electronic  communications  networks  and
services including those used for transmitting broadcasting programmes; provisions on must-
carry  obligations,  access  rules  for  networks,  conditional  access  systems  and  associated
facilities. The main objectives of the review were to create a set of rules that would be simple,
aimed  at  deregulation,  technologically  neutral  and  sufficiently  flexible  to  deal  with  fast-
changing markets in the electronic communications sector. The goals of the new framework
are  to  encourage  competition  in  the  electronic  communications  markets,  to  improve  the
functioning  of  the  internal  market  and  to  guarantee  basic  user  interests  that  would  not  be
guaranteed by market forces.26

24

25

26

OJ L 167, 22. 6. 2001.
Proposal for a Directive of the European Parliament and of the Council on measures and procedures to
ensure the enforcement of intellectual property rights COM(2003) 46 final.
The Telecoms package includes the following elements:

(cid:1)  a  directive  on  a  common  regulatory  framework  for  electronic  communications  networks  and  services

(framework directive);
(cid:1)  an authorisation directive;
(cid:1)  an access & interconnection directive;
(cid:1)  a directive on universal service and users' rights relating to electronic communications networks and services;
(cid:1)  a decision on a regulatory framework for radio spectrum policy.

9

 
                                                
The Directive on electronic commerce27 provides a light and flexible legal framework for e-
commerce and addresses only those elements which are strictly necessary in order to ensure
the  proper  functioning  of  the  internal  market  in  e-commerce.  It  was  drafted  in  a
technologically neutral way to avoid the need to constantly adapt the legal framework to new
developments.28 It covers a wide variety of services provided online  (so-called "information
society  services")  ranging  from  online  newspapers  and  specialised  news  services  (such  as
business  or  financial  information),  distance  selling  of  various  products  (books,  computer
hardware  and  software,  pharmaceuticals,  etc.)  to  the  online  provision  of  financial  services
(online  banking,  online  investment).  The  latter  are  of  particular  importance  as  they  are
particularly  suitable  for  cross-border  delivery,  which  the  Commission  has  recognized  in  its
Communication  on  e-commerce  and  financial  services29.  The  Directive  applies  horizontally
across  all  areas  of  law  which  touch  on  the  provision  of  information  society  services,
regardless of whether it is a matter of public, private, or criminal law.

The  Commission  Communication  on  barriers  to  widespread  access  to  new  services  and
applications of the information society through open platforms in digital television and third
generation  mobile  communications30  concerns  the  interoperability  of  information  society
services.  With  the  more  general  aim  of  detecting  the  barriers  to  broad  access  to  new
technologies,  it  addresses  the  issue  of  promoting  open  technological  platforms  for  third-
generation mobile communications (3G) and digital television. These technologies could play
a complementary role to the PC in future in providing widespread access to the Internet and to
interactive services. The Communication identifies follow-up measures for Member States. It
also  foresees  in  the  long  term  a  "multi-platform  environment"  emerging  which  will  deliver
advanced information society services in a complementary way.

The Commission Communication on digital switchover (“transition from analogue to digital
broadcasting,  from  digital  switchover  to  analogue  switch-off“)31  sets  out  guidance  for
Member States on the difficult task of migrating to digital radio and television transmission,
and  ultimately  switching  off  analogue  transmission,  in  a  consumer-friendly  fashion.  It  also
launches a policy debate on how to make best use of the radio spectrum made available after
analogue broadcasting is switched off. The eEurope 2005 Action Plan requires Member States
to publish their switchover plans, including a possible date for ending analogue television, by
the  end  of  2003.  This  will  ensure  that  consumers  have  enough  information  and  adequate
warning  to  become  acquainted  with  all  the  possibilities  of  new  digital  TV  services  and  to
upgrade their equipment. The Communication advises Member States on the policy pitfalls to
avoid and identifies items that should be part of national switchover plans. National measures
should be transparent, proportionate, timely, and technologically neutral so as to avoid unduly
discriminating against certain parties and distorting competition in the market.

27

28

29

30

31

OJ L 178, 17. 7. 2000.
For instance, technological applications (WAP or PDA-sets) enabling the content to be accessed by a
specific  device  do  not  constitute  "modification  of  information"  within  the  meaning  of  Article  12,  but
merely "technical specification of content".
COM(2001) 66 final, 7.2.2001.
COM(2003) 410 final.
Communication  from  the  Commission  to  the  Council,  the  European  Parliament,  the  European
Economic and Social Committee and the Committee of the Regions on the transition from analogue to
digital broadcasting (from digital ‘switchover’ to analogue ‘switch-off’), COM(2003) 541 final.

10

 
                                                
Accessibility for people with disabilities to television

Although  the  issue  of  accessibility  for  people  with  a  disability  to  television  does  not  fall
within the remit of the TVWF Directive, the Commission will promote accessibility matters
with  Member  States  to  co-ordinate  and  complement  national  actions  and  measures  in  the
Contact Committee established by the TVWF Directive. In particular, enriching content with
audio description, audio subtitling, subtitling and sign language will be further discussed.

Consumer protection

All  EU  consumer  protection  rules  apply  to  the  audiovisual  sector  as  to  any  other.  These
include  the  general  provisions  on  advertising  which  apply  to  all  sectors  contained  in  the
Misleading Advertising Directive, and the recent proposal for a framework directive on unfair
business-to-consumer  commercial  practices.  The  framework  directive  takes  a  technology-
neutral  approach  and  is  also  based  on  the  country  of  origin  principle,  making  it  compatible
with the approach of the existing TVWF Directive. The proposal makes clear that in case of
conflict with sector-specific EU rules which also regulate this area, it is those sector-specific
rules which apply.

The  Commission  proposal  for  a  Regulation  on  consumer  protection  cooperation  of  17  July
200332  aims  to  establish  a  network  of  national  enforcement  authorities  in  the  field  of
consumer  protection  laws.  Among  other  provisions,  the  Regulation  sets  up  a  Standing
Committee on Consumer Protection Cooperation. However, matters regulated by the TVWF
Directive  will  continue  to  be  examined  only  by  the  Contact  Committee  established  by  the
TVWF Directive.

Law applicable to non-contractual obligations

The  Commission  Proposal  for  a  Regulation  on  the  law  applicable  to  non-contractual
obligations  (“Rome  II”)  of  22  July  200333  lays  down  that,  as  a  general  rule,  “the  law
applicable to a non-contractual obligation shall be the law of the country in which the damage
arises  or  is  likely  to  arise,  irrespective  of  the  country  in  which  the  event  giving  rise  to  the
damage  occurred  and  irrespective  of  the  country  or  countries  in  which  the  indirect
consequences of that event arise”.  Nevertheless, the right of  reply is regulated by a specific
provision in Article 6: “The law applicable to the right of reply or equivalent measures shall
be the law of the country in which the broadcaster or publisher has its habitual residence”.

Trade policy

On  audiovisual  services,  the  European  Community  and  its  Member  States  have  not  made
commitments  and  have  taken  exemptions  to  the  Most  Favoured  Nation  clause  in  the  last
multilateral trade negotiations Round, known as the “Uruguay Round”. By doing so, the EU
benefits  from  room  for  manoeuvre  in  the  audiovisual  sector,  which  secures  the  possibility
both  to  maintain  existing  national  and  Community  measures  in  this  sector  and  to  further
develop national and Community policies and instruments, in response to developments in the
sector.

32

33

COM(2003) 443 final.
COM(2003) 427 final.

11

 
                                                
This  freedom  of  action  is  at  the  heart  of  the  conclusions  of  the  EU  Council  of  26  October
1999 regarding the negotiations on the General Agreement on Trade in Services (GATS) for
the  forthcoming  WTO  (World  Trade  Organization)  Round,  which  is  now  under  way  and
known  as  the  DDA  (Doha  Development  Agenda)  Round.  These  conclusions,  call  upon  the
Union  “to  ensure  that  the  Community  and  its  Member  States  maintain  the  possibility  to
preserve and develop their capacity to define and implement their cultural and audio-visual
policies for the purpose of preserving their cultural diversity”. The Community’s position in
the DDA negotiations is fully in line with these conclusions.

Promotion of cultural diversity in external relations

The European Union is open to trade and co-operation in audiovisual services, the promotion
of exchanges in those services being a necessary component of its cultural diversity objective.
Such  objectives  are  pursued  through  the  development  of  the  cultural  and  audiovisual
dimension  of  existing  partnerships  between  the  EU  and  third  countries,  for  example  in  the
framework  of  the  Cotonou  Agreement  with  African,  Caribbean  and  Pacific  countries  or  the
Euromediterranean partnership.

Furthermore,  in  August  2003  the  Commission  adopted  a  Communication  entitled  "Towards
an  international  instrument  on  cultural  diversity"  in  which  it  supported  the  opportunity  to
develop a new international instrument on cultural diversity  in the framework  of UNESCO.
The  UNESCO  General  Conference  (29  September–17  October  2003)  decided  to  begin
working  towards  a  Convention  on  cultural  diversity,  entailing  the  submission  of  a  draft
Convention to the next General Conference in 2005.

3.

TOWARDS A NEW GOVERNANCE FOR EUROPEAN AUDIOVISUAL MEDIA

The  “television  without  frontiers”  Directive34 is  the  main  legislative  instrument  at  EU  level
concerning  audiovisual  services.  The  Directive  has  been  complemented  in  particular  by
Council  Directive  2000/31/EC  on  certain  legal  aspects  of  information  society  services,  in
particular  electronic  commerce,  in  the  internal  market  (the  e-commerce  Directive)35  and  by
Council Directive 1993/83/EEC on the coordination of certain rules concerning copyright and
rights  related  to  copyright  applicable  to  satellite  broadcasting  and  cable  retransmission36
(“cable and satellite Directive”). In relation to the TVWF Directive the e-commerce Directive
clarifies  some  legal  concepts  and  harmonises  certain  aspects  enabling  information  society
services to benefit fully from internal market principles, while the cable and satellite Directive
aims  to  facilitate  cross-border  transmission  of  audiovisual  programmes  by  satellite  and
retransmission by cable.

The  Annex  to  the  fourth  report  on  the  application  of  the  "Television  without  Frontiers"
Directive37 set out the  work programme for  2003  for the review of  the Directive. The work
programme announced a public consultation with the aim of providing the Commission with
the information necessary to assess whether there is a need to update or adapt the Directive.

34

35

36

37

Council  Directive  89/552/EEC  as  amended  by  Directive  97/36/EC  of  the  European  Parliament  and
of the Council.
Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000.
OJ L 248 , 6. 10. 1993, pp. 15-21.
COM(2002) 778 final.

12

 
                                                
The  consultation  was  based  on  discussion  papers  published  on  the  Commission's  website38.
Two series of public hearings were organised in Brussels, on 2-4 April and 23-25 June 2003.
Interested  parties  were  also  invited  to  transmit  their  written  contributions  by  15  July  2003.
The  Commission  received  more  than  150  submissions  (around  1  350  pages).  All  relevant
parties (private and public broadcasters, regulators, producers, rights holders, artists) and most
Member States made contributions. Most submissions agree that the Directive has provided a
flexible  and  adequate  framework  for  regulation  by  Member  States  and  support  the
Commission's pragmatic approach. Overall, the Directive has made a positive contribution to
enabling  free  movement  of  broadcasting  services  within  the  EU.  But  the  contributions  also
highlighted where further thinking is needed.

The results of this public consultation (written comments and public hearings) were discussed
with the members of the Contact Committee established by the TVWF Directive and with the
national regulatory authorities.

3.1.

Definitions and basic concepts

The  “Television  without  Frontiers”  Directive  lays  down  the  minimum  standards  which
regulation  of  the  content  of  television  broadcasts  by  the  Member  States  must  guarantee.
Television broadcasts from broadcasters that are subject to the jurisdiction of a Member State
and meet  the  legal  requirements  applying  in  that  Member  State  may  be  freely  received  and
retransmitted  throughout  the  Community.  In  accordance  with  the  initial  focus  on  the
importance of the media and communication for a free, democratic and social society, these
minimum standards essentially comprise the obligation to adopt measures:

– 

– 

– 

– 

– 

to ensure that events of major importance for society are not broadcast on the
basis of exclusivity in such a way that significant sections of the public in the
relevant  Member  State  are  prevented  from  following  the  event  in  a  freely
accessible television broadcast;

to  promote 
programmes;

the  production  and  dissemination  of  European 

television

to  protect  consumers  as  regards  advertising,  sponsorship  and  teleshopping,
including in respect of unfair commercial practices;

to protect minors and public order;

to protect the right of reply.

The Directive contains fundamental principles which could be seen as policy objectives valid
for any kind of delivery of audiovisual services (rules on the protection of minors, separation
between content and advertising, clear identification of advertising, ban on certain products)
Some of the detailed rules in the TVWF Directive are specifically focused at traditional linear
television  programming  (for  instance  the  provisions  on  duration  and  insertion  concerning
advertising and teleshopping spots).

38

http://europa.eu.int/comm/avpolicy/regul/review-twf2003/consult_en.htm

13

 
                                                
Community law at present distinguishes between "television broadcasting services" subject to
the "television without frontiers" Directive, and "information society services", subject to the
"e-Commerce-" Directive. The regulatory approach of the TVWF Directive is more detailed
than  the  regulatory  approach  of  the  "e-commerce-"  Directive.  This  is  mainly  due  to  the
paramount importance and the unparalleled impact of television broadcasting on our societies
through the effect it has on the way people form their opinions.

For the time being, no information society service has reached an importance and an impact
similar to television broadcasting services. The take-up of broadband services has been slower
than  initially  expected  and  it  would  seem  that  developments  are  difficult  to  predict  in  a
radically altered economic environment. The results of the consultation process confirm this
assumption.  Some  contributions  (especially  from  Member  States)  have  demanded  the
extension of the scope of the Directive. The proposals themselves differ in scope (from non-
traditional television services only  to any form of audio-visual  content) and  are  opposed  by
others that consider horizontal content regulation premature since full media convergence has
not been reached yet.

In the medium term, nevertheless, the Commission considers that a thorough revision of
the  Directive  might  be  necessary  to  take  account  of  technological  developments  and
changes  in  the  structure  of  the  audiovisual  market.  The  Commission  will  therefore
reflect  with  the  help  of  experts  (in  focus  groups)  whether  any  changes  to  content
regulation  for  the  different  distribution  channels  for  audiovisual  content  would  be
necessary  at  Community  level  in  order  to  take  account  of  media  convergence  at  a
technical level and any divergence of national regulation which affects the establishment
and the functioning of the common market. The mandate of the group shall be based on
the  existing  framework.  Any  intervention  would  have  to  ensure  the  proportionate
application of content rules and the coherent application of relevant policies considered
to  be  connected  to  this  sector,  such  as  competition,  commercial  communications,
consumer protection and the internal market strategy for the services sector.

3.2.

General rules

The "Television without Frontiers" Directive includes a basic principle of the internal market,
namely  the  application  of  the  law  of  the  country  of  origin,  which  allows  hardly  any
exceptions.  In  this  connection,  the  Directive  lays  down  a  number  of  criteria  designed  to
establish which Member State has jurisdiction in order to avoid a situation in which a given
programme  is  subject  to  the  jurisdiction of  several Member States.  When the Directive  was
amended  in  1997,  certain  criteria  were  added  in  order  to  establish  exhaustively  which
Member  State  has  jurisdiction  over  which  television  broadcasting  organisation.  Lastly,  the
Directive  stipulates  that  if  jurisdiction  cannot  be  established  using  the  criteria  set  out  in
Article 2(3), the Member State with jurisdiction can be established on the basis of Articles 52
(new Article 43) et seq. of the Treaty. The public consultation also concerned these provisions
referred to in Article 2 of the Directive.

14

 
While  most  Member  States  and  most  of  the  people  who  contributed  thought  that  the  rules
were appropriate, other Member States and consumer protection associations expressed their
concerns  about  the  diversity  of  national  laws  and  the  resulting  risk  of  the  establishment  of
broadcasters  in  the  States  with  the  least  stringent  legislation.  Moreover,  the  problem  of
area-specific  advertising  was  raised  by  certain  Member  States.  This  is  a  practice  whereby
broadcasters, using a channel intended for viewers in their country of origin, reach audience
areas in different countries – usually neighbouring countries – via the same channel, but with
programmes  in  which  the  initial  advertising  screens  are  replaced  by  advertising  screens
specifically targeting people in these additional audiences. These contributions maintain that
this is a practice which could undermine the financial health of the broadcasting organisations
and therefore of the audiovisual industry of the neighbouring countries. However, it should be
pointed out that this practice is in keeping with the principle of freedom to provide services39
or freedom of establishment40 as expounded by the Court of Justice.

Moreover, the rules of the directive have, on occasion, caused certain problems of application,
witness  the  infringement  proceedings  initiated  against  the  Netherlands  concerning  the
programmes  RTL4  and  RTL5.  However,  the  Commission  dropped  this  case  following  a
judgement issued by the Dutch Council of State41.

As in the past,  the Commission will  examine any  questions  that arise concerning these
principles  through  the  contact  committee,  with  the  participation  of  the  national
regulators, where appropriate.

3.3.

Right to information

In the consultation process, the right to information was discussed in relation to two aspects.
The first discussion paper asked questions on the adequacy and appropriateness of the present
provisions in Article 3a of the Directive (events of major importance for society). Discussion
paper  6  deliberated  the  need  to  introduce  for  the  future  a  right  to  short  extracts  of  events
subject to exclusive rights and the granting of “access” to these events.

39

40

41

CJEC, 26 April 1988, case 325/85, ECR I-02085
Concerning this principle, see the Guide to the Case Law of the European Court of Justice on Articles
43 et seq. of the EC Treaty: freedom of establishment, 01/01/2001,
http://europa.eu.int/comm/internal_market/en/services/establ/art43_en.pdf
The  Commission  initiated  infringement  proceedings  against  the  Dutch  authorities  following  the
decision of the Dutch Media Commission (Commissariaat voor de media) to grant itself jurisdiction for
the  programmes  RTL  4  and  RTL  5  put  out  by  a  broadcaster  falling  under  the  jurisdiction  of  the
Luxembourg  authorities.  Without  calling  into  question  the  analysis  made  on  the  issues  by  the
Commissariat voor de media, a judgment by the Council of State has nonetheless annulled the decision
taken, considering that this body could not grant itself jurisdiction in this way and trigger a situation of
dual jurisdiction which was contrary to the Television  without Frontiers Directive. In the light of this
judgment,  the  Dutch  authorities  acknowledge,  as  the  Commission  maintained  in  this  case,  that  the
Directive prohibits any situation in which a broadcaster comes under the jurisdiction of more than one
Member State. The Commission has therefore decided to close this dossier.

15

 
                                                
The  majority  of  contributions  received  consider  Article  3a  of  the  Directive  to  be  useful,
necessary,  effective  and  proportionate.  Some  contributions,  notably  from  German  private
broadcasters,  are  more  critical  in  this  respect.  Regarding  possible  extensions  of  these
provisions, the idea of having a European list of events of major importance for (European)
society  was  suggested  by  certain  public  service  broadcasters,  mainly  with  the  aim  to
overcome  the  practice  of  marketing  certain  rights  on  a  territorial  basis,  but  met  with
widespread  scepticism.  Though  different  improvements  were  suggested  in  the  contributions
no consensus emerged on whether to define at a European level the notion of “a substantial
proportion of the public” or the need to review the Directive with regard to reference dates.
Some Member States and stakeholders would welcome the inclusion of a positive decision by
the Commission on the compatibility of the proposed measures (lists) with Community law.
This  could  provide  more  legal  certainty  compared  to  the  present  situation  where  the
Commission  has  to  open  an  infringement  procedure  if  it  finds  the  national  measures
disproportionate to the objective sought.

The consultations showed that there is no urgent, pressing need for a revision of this provision
of the Directive. As mentioned in some contributions the forthcoming ruling of the Court of
First Instance42 in relation to Article 3a might provide new elements that could necessitate a
further  discussion  of  “guiding  principles”  or  the  role  of  the  Commission.  The  Commission
will  discuss  these  issues  in  the  Contact  Committee  in  the  second  half  of  2004.  Possible
guidelines  would  provide  specific  information  for  Member  States  on  the  choice  and
implementation  of  national  measures.  The  Commission  considers  that  the  concept  of
European list would have no value added as the present concept of the Directive leaves it to
the  Member  States  to  designate  events  of  major  importance  owing  to  national  and  regional
cultural  and  societal  specificities.  A  radical  overturning  of  this  concept  to  oblige  Member
States  to  designate  events  of  major  importance  for  society  could  not  be  seen  to  be  in
conformity  with  the  principle  of  subsidiarity.  Furthermore  the  suggestions  would  not
contribute to overcoming the practice of marketing certain rights on a territorial basis. Public
service broadcasters and some Member States consider that a statutorily harmonised right to
access  newsworthy  events  should  be  established  at  European  level.  Current  disparities
between  national  laws  on  this  issue  create  distortions.  Other  Member  States  are  more
sceptical;  private  broadcasters  and  right  holders  consider  this  to  be  a  matter  for  voluntary
codes and firmly reject any notion of right of “access” to such content.

The Commission considers that the issue of right to access to newsworthy events needs
further  attention43  and  will  invite  experts  to  further  discuss  this  matter  (in  a  focus
group).  The  issues  at  stake  have  to  be  dealt  with  in  conjunction  with  copyright
regulation. Three main questions have to be answered: to what extent does the copyright
Directive  provide  an  adequate  solution  through  its  “fair  dealing”  provision?  Do  the
general  policy  objectives  at  stake  (pluralism  of  information  sources,  etc.)  require  the
statutory  definition  of  a  “right  to  access”  for  broadcasters  and  news  agencies?  What
type of intervention should be provided for?

42

43

Kirch Media, T-33/01 CFI.
See also Petition Nr. 1358/2002 to the European Parliament.

16

 
                                                
3.4.

Promotion of production, chronology

Broadcasting  of  a  majority  proportion  of  European  works  (Articles  4  and  6  of  the
TVWF Directive)

Article  4  of  the  TVWF  Directive  provides  for  the  introduction  of  measures  to  promote
“European works”. These “European works” are defined in Article 6.

The majority of stakeholders are in favour of the status quo. Some requested the strengthening
of  the  requirements,  while  others  proposed  replacing  the  existing  requirements  with  other
instruments  such  as  investment  obligations  or  specific  support  programmes  for  European
production.  A  minority  of  stakeholders  continues  to  question  the  need  and/or  the
proportionality of such requirements.

Proposals for the strengthening of the current requirements included:

(cid:1)  introducing  an  explicit  quantitative  objective  instead  of  the  expression  “a  majority
proportion  of  its  transmission  time”.  The  proposed  minimum  figure  ranged  from  51%  to
75%;

(cid:1)  clarifying the obligation by deleting the wording “Where practicable and by appropriate
means".  This  proposal  was  backed  by  a  large  number  of  producers,  scriptwriters  and
distributors.

Only a few submissions asked for new sub-objectives or quotas for national productions, non
national  European  works,  cinematographic  works  and  “regional”  programmes  with  special
language inter-connections. The introduction of an investment obligation was also proposed,
complementary to the transmission time measures.

Some asked for the improvement of the monitoring system used by the European Commission
in relation to this article, by re-issuing guidelines on the collection and validation of data or
by organising the monitoring at Community level.

Stakeholders  were  sharply  divided  concerning  the  need  for  further  harmonisation  of  the
definition  of  European  works  provided  in  Article  6.  Those  in  favour  of  harmonisation
proposed following the definition contained in the European Convention on Cinematographic
Co-production.

European works by independent producers (Article 5 of the TVWF Directive)

Article 5 establishes a 10% objective in terms of  transmission  time  or  programming  budget
for European works by independent producers. A majority of stakeholders were in favour of
the status quo. Here again, there were also proposals for increasing the figure to 25% and/or
for removing the sentence “where practicable and by appropriate means”. But there were also
some  voices  requesting  that  the  existing  requirements  be  removed  or  replaced  by  other
mechanisms.

The  majority  considered  that  the  absence  of  a  definition  of  the  notion  of  “independent
producer” is not an obstacle to the circulation of works within the EU. In other words, there is
broad support for the status quo. However, several stakeholders favour the introduction of a
harmonised definition. They provided  a long list of key criteria for independent productions
for the  purposes of the  Directive.  One  possible  action  would  be  to  make  this  list  of  criteria
available to Member States in the form of guidelines.

17

 
Provisions common to Articles 4, 5 and 6 of the TVWF Directive

There  were  minority  requests  for  excluding  from  the  measures  to  promote  European  works
thematic channels, television shopping, countries with a low audiovisual production capacity
or  restricted  language  area,  small  and  medium-sized  broadcasters  and  channels  with  low
audience  (the  “de  minimis  criterion”).  Some  demanded  special  provisions  for  ‘new’
broadcasting  organisations  and  new  forms  of  programme  provision  and  access,  such  as  pay
per view or video on demand. However, any exception to the application of the measures to
promote European works should be thoroughly defined and described in the Directive.

Media chronology (Article 7 of the TVWF Directive)

The large majority of stakeholders  were  in favour of the status quo in relation  to  the media
chronology  established  in  Article  7.  The  public  hearings  and  the  contributions  to  the
review  process  showed  that  chapter  III  of  the  Directive  represents  a  well-balanced
compromise  in  promoting  a  diverse  European  audiovisual  landscape.  Therefore,  the
Commission  does  at  this  stage  not  intend  to  propose  amendments  to  the  relevant
provisions. The Commission will further monitor its application in the light of the study
provided for in Article 25a of the TVWF Directive.

3.5.

Commercial communications

Chapter  IV  of  the  Directive  lays  down  a  series  of  rules  for  advertising,  sponsorship  and
teleshopping,  including  rules  concerning  advertising  targeted  at  minors.  It  stipulates  rules
concerning  the  amount  of  advertising  that  may  be  broadcast  on  screen  (daily  and  hourly
limits, Article 18), the number of advertising breaks and the rules pertaining thereto (Article
11) and the rules pertaining to the content and presentation of advertising messages (Articles
10, 12, 13, 14, 15 and 16). Specific rules (Article 17) apply to sponsorship.

The  Directive  seeks  to  protect  the  interests  of  television  viewers,  e.g.  by  drawing  a  clear
distinction between editorial content and advertising, and to protect the integrity and value of
audiovisual works and holders of rights, e.g. by avoiding excessive disruptions. In the public
consultation,  the  Commission  invited  interested  parties  to  send  it  their  contributions,
particularly  on  the  relevance  of  these  provisions,  having  regard  to  developments  on  the
markets and technological progress. One of the questions asked was whether the rules limiting
the amount of advertising could be made more flexible to take account of the degree of user
choice  and  control,  and  whether  the  new  advertising  techniques  were  compatible  with  the
provisions of the Directive.

The positions expressed on the various points examined can be summarised as follows:

Concerning  the  concepts  and  definitions  set  out  in  Article  1  of  the  Directive,  most  of  the
positions expressed are in favour of retaining  the  existing definitions. There is little support
for  changes,  and  the  general  feeling  is  that  it  is  too  early  to  define  the  new  advertising
techniques in the Directive.

While most of the contributions consider the provisions on the protection of minors (Article
16) and human dignity (Article 12) to be adequate and are in favour of maintaining the status
quo,  there  are  nevertheless  some  associations  representing  consumers  and  families  which
would like to see the provisions protecting minors tightened up to some extent. This is an area
which the Commission has recently addressed in its proposal on unfair commercial practices.

18

 
Most of the contributions sent to the Commission would like to see the existing provisions on
the  form  and  presentation  of  advertising  (Article  10)  maintained.  While  supporting  the
principle  of  the  separation  of  editorial  and  advertising  content,  some  operators,  particularly
advertisers, marketers and commercial broadcasters, would nonetheless welcome some degree
of  flexibility  with  regard  to  the  implementation  arrangements,  particularly  as  regards  the
exceptional nature of isolated spots or the banning of surreptitious advertising.

The  provisions  governing  the  insertion  of  advertising  and  teleshopping  spots  are  generally
considered adequate. While acknowledging that advertising spots must in theory be inserted
between  programmes  and  that  insertions  during  programmes  must  not  affect  the  value  or
integrity  of  the  programmes  themselves,  many  contributions  call  for  a  simplification  of  the
rules,  particularly  with  regard  to  sports  programmes  and  the  rule  whereby  20  minutes  must
elapse between each advertising spot.

Tobacco  products  and  medicines  obtainable  only  on  prescription  are  covered  by  television
advertising  bans  and  there  are  certain  restrictions  where  alcoholic  beverages  are  concerned.
While  these  provisions  are  generally  supported  by  the  interested  parties,  one  Member  State
and some associations would nevertheless like to see stricter provisions on the advertising of
alcoholic beverages.

The  majority  of  Member  States  support  the  provisions  on  duration,  but  certain  Member
States, most commercial broadcasters and some advertising agencies would like some degree
of flexibility in the rules. In general, the opinions expressed are not in favour of modulating
the rules as a function of programme type or audience. A number of commercial broadcasters
and  advertising  agencies  would  like  to  see  more  extensive  use  of  self-regulation  or  co-
regulation, but other contributions suggest  that  the use of these mechanisms  is not  effective
for the provisions on duration.

Many  contributions  consider  the  rules  on  sponsorship  to  be  appropriate,  but  there  are  also
calls  for  clarification,  particularly  on  whether  these  provisions  authorise  the  presentation  of
products.

As for  the new  advertising techniques,  a  substantial  majority  takes  the  view  that,  subject  to
certain  conditions,  the  split  screen,  interactive  advertising  and  virtual  advertising  are
compatible with the terms of the Directive. Nevertheless, for reasons of legal security and in
order  to  ensure  even  treatment  of  these  techniques  in  the  different  Member  States  of  the
European Union, many interested parties asked the European Commission to specify how the
rules  of  the  Directive  apply  to  these  new  techniques  by  producing  an  interpretative
communication.

The  Commission  has  therefore  decided  to  adopt,  in  the  near  future,  an  interpretative
Communication  setting  out  how  the  provisions  of  Chapter  IV  of  the  Directive  apply,
especially with regard to the new advertising techniques. Moreover, the Commission will
contemplate,  with  the  help  of  experts  (through  a  focus  group),  how  the  rules  on
insertions and duration could develop, notably to take account of the degree of control
exercised  by  viewers  and  the  wider  choice  of  programmes  on  offer.  This  examination
will also take account of the results of the independent study ordered by the Commission
on  the  impact  of  measures  to  regulate  advertising  markets44  and  the  proposal  for  a
Directive on unfair commercial practices.

44

See OJ S107-95378

19

 
                                                
3.6.

Protection of minors and public order

The  comments  expressed  in  the  public  consultation  show  that  there  is  a  general  consensus
among  the  stakeholders  that  the  provisions  laid  down  in  the  Directive  on  the  protection  of
minors are satisfactory and adequate. Some stakeholders considered that it should be desirable
to have the application of these provisions extended to the Internet.

Article 22 of the Directive distinguishes between programmes which might seriously impair
the  development  of  minors  (Article  22(1))  and  programmes  which  are  likely  to  impair  the
development of minors (Article 22 (2)). Many stakeholders consider that this provision should
be maintained as it stands and that there have been no problems with the application of this
Article.  However,  some  would  support  an  attempt  to  clarify  the  precise  meaning  of  the
provisions in Article 22(1) and (2).

Most  stakeholders  who  commented  on  the  subject  of  prohibition  of  broadcasts  containing
incitement to hatred for reasons of race, sex or nationality are satisfied with the provision as it
stands  and  are  not  aware  of  any  problems.  Some  stakeholders  argued  that  co-regulation  or
self-regulation  would  be  inappropriate  in  this  area.  A  number  of  stakeholders  called  for
further reflection  on  appropriate measures  against  discrimination  for  reasons  of  race,  sex  or
nationality,  whilst  other  stakeholders  emphasised  the  need  to  carefully  balance  the
fundamental right to free speech with measures taken in this regard.

The contributions received show that co-regulatory models work very well in some Member
States, but some stakeholders argued that simple codes of conduct without control by public
authorities are not sufficient.

The general feeling is that while the rules applicable are quite clear, the effective enforcement
of these rules might pose increasing problems, especially in a digital and online environment.
In  this  respect,  the  benefits  stemming  from  effective  self-  and  co-regulatory  models  were
particularly stressed. Much interest was expressed in deepening the exchange of best practices
and the networking between different bodies.

Article  2a  of  the  Directive  allows  a  “derogation  from  the  obligation  to  ensure  freedom  of
reception”  for  content  which  could  impair  the  development  of  minors.  Most  of  the
stakeholders  who  commented  on  this  subject  consider  that  the  provision  of  Article  2a  is
adequate  and  proportionate  for  ensuring  the  protection  of  the  general  interest  involved.
However,  some  consider  that  the  procedure  could  be  made  simpler  or  that  the  possible
application  of  this  provision  should  be  clarified,  for  instance  in  an  interpretative
communication.

As a result of the consultation, and taking into account the preoccupation expressed by
many stakeholders over the effectiveness of the enforcement of the rules applicable, the
Commission  will  as  a  first  step  propose  the  update  of  the  Recommendation  on  the
protection  on  minors  and  human  dignity  centred  on  the  development  of  self-  and  co-
regulatory  models  (see  chapter  3.10),  in  particular  with  a  view  to  the  online
environment, so as to contribute to the effective respect of the principles of protection of
minors  and  public  order  that  have  been  recognised  as  being  of  universal  importance
irrespective of the nature of a service or of its delivery mode.

20

 
3.7.

Right of reply

Most  of  the  stakeholders  who  commented  on  the  right  of  reply  in  respect  of  television
services find that the provision as it stands is appropriate and that no additional regulation is
necessary.  Some  stakeholders  considered  that  a  right  of  reply  applicable  to  all  electronic
media should be developed.

As mentioned earlier, the Commission takes the view that the  law  applicable to  the  right of
reply  or  equivalent  measures  should  be  the  law  of  the  country  in  which  the  broadcaster  is
established.

As suggested in the consultation process, the Commission will take up the idea that the
right of reply should be applicable to all media. As a first step, the right of reply could
be  enshrined  in  the  Recommendation  on  the  protection  of  minors  and  human  dignity.
The  Commission  will  also  be  actively  involved  in  the  work  of  the  Council  of  Europe
concerning the right of reply in the online environment.

3.8.

Institutional aspects

The  consultation  process  focused  on  the  functioning  of  the  Contact  Committee  and  how
national  regulatory  authorities  could  better  be  integrated  in  the  work  at  European  level.
Another  idea  addressed  in  the  discussion  papers  was  overcoming  the  disadvantages  of  co-
regulatory  models  (fragmentation  of  markets,  etc.)  through  different  forms  of  co-operation
between co-regulatory bodies.

The Contact Committee is widely seen in a positive light as a sensible and helpful institution.
There  is  less  agreement  on  how  national  regulatory  authorities  should  be  better  involved  at
European  level.  The  majority  of  regulators  and  some  Member  States  are  in  favour  of
establishing a regulatory committee at European level, while some other  Member  States  are
against a duplication of committees.

A  certain  number  of  contributions  also  suggested  that  the  proceedings  of  the  Contact
Committee should  be  made  public,  to  make  its  work  more  transparent.  Private  broadcasters
asked for observer status in the Contact Committee.

The contributions to the consultation process lead the Commission to the conclusion that
the composition and tasks attributed to the Contact Committee should not be changed.
In  response  to  the  demand  for  more  transparency  the  Commission  will,  at  the  first
meeting of the Contact Committee in 2004, propose a change to Article 7 of the "Rules
of  Procedure  of  the  Contact  Committee",  which  at  present  declare  the  proceedings  of
the  Contact  Committee  confidential.  The  Commission  will  propose  that,  in  line  with
Regulation (EC) No 1049/2001 regarding public access to European Parliament, Council
and Commission documents45, the rules of procedure should allow the publication of the
agenda,  documents  and  minutes  of  the  Contact  Committee,  except  for  the  exemptions
mentioned in the Regulation. These documents would be published on the Commission's
website.

The Commission will, as has been the case in the past, invite industry representatives on
an occasional basis when the subjects on the agenda recommend their presence, but does
not consider it appropriate to have broadcasters represented on a permanent basis.

45

OJ L 145, 31.5.2001, p. 43.

21

 
                                                
The  Commission  will  continue  its  practice  of  inviting  the  chairmen  and  directors  of
national regulatory authorities to meetings on an ad hoc basis. Two such meetings took
place  in  2003.  If  experience  with  these  meetings  continues  to  be  as  satisfying  in  the
future as it has been in the past, the Commission will consider establishing a permanent
“European  regulators  group  for  audiovisual  services”  in  the  second  half  of  2004.  A
possible  Commission  decision  to  that  effect  would  clearly  state  that  the  tasks  of  the
regulators'  committee  are  confined  to  exchange  of  views  on  operational  and  technical
issues,  whereas  the  Contact  Committee  remains  the  committee  responsible  under  the
provisions of the Directive.

3.9.

The Recommendation on the protection of minors and human dignity

The  Recommendation  on  the  protection  of  minors  and  human  dignity46  is  the  first  legal
instrument  –  at  EU  level  –  concerning  the  content  of  online  audiovisual  and  information
services  on  the  Internet.  The  Recommendation  offers  guidelines  for  the  development  of
national self-regulation regarding the protection of minors and human dignity. In particular, it
requests  online  Internet  service  providers  to  develop  codes  of  conduct  so  as  to  better  apply
and clarify current legislation.

The second report on the application of the Recommendation concludes that the application of
the  Recommendation  by  the  Member  States  (as  well  as  the  Acceding  States  and  the  other
States  who  replied  to  the  questionnaire)  is  still  heterogeneous.  However,  the  number  of
hotlines  and  codes  of  conduct  has  increased  significantly  and  the  fact  that  two  of  the
Acceding States who replied to the questionnaire have established hotlines is also a positive
sign.

Rating or classification of audiovisual content performs an essential role in the protection of
minors. In a number of contributions it was considered that – rating system should take into
account the cultural and social diversities between Member States. Nevertheless there could
be  a  EU  system  of  common,  descriptive  symbols  to  help  viewers  assess  the  content  of
programmes. This could be reached in a bottom up approach through the cooperation of co-
regulatory  bodies  in  the  Member  States  and  the  exchange  of  best  practices.  Taking  into
account  the  cross-media  approach  of  the  Recommendation  the  Commission  envisages
proposing  an  update  of  the  Council  Recommendation  on  protection  of  minors  and  human
dignity to include a call for the harmonisation of such descriptive symbols.

The changing media landscape, resulting from new technologies and media innovation makes
it necessary to  teach children  (and parents)  to  use  the  media  effectively.  To  know  where  to
find information and how to interpret it nowadays represents an essential skill. A number of
stakeholders who participated in the public consultation concerning the TVWF Directive also
suggested  –  besides  the  issues  mentioned  earlier  on  –  to  include  media  literacy  among  the
subjects of the Recommendation. This is an issue that the Commission will carefully consider
in the light of the envisaged proposal for an update of the Council Recommendation.

46

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  (published  in
Official Journal L 270, 7.10.1998, p.48).

22

 
                                                
The Commission intends following-up the comments relating to the protection of minors
by  proposing  an  update  of  the  Recommendation.  This  could  cover  issues  relating  to
media literacy, the right of reply, and measures against discrimination or incitement to
hatred on the grounds of race, sex or nationality in all online media. This proposal will
build  upon  the  conclusions  of  the  second  report  on  the  implementation  of  the
Recommendation.

3.10.

Co- and self-regulation

The Communication on audiovisual policy in 199947 stressed the importance of co- and self-
regulatory  instruments.  Based  on  the  European  Commission’s  White  Paper  on  European
Governance48  and  the  Better  Legislation  Action  Plan49  in  the  Fourth  Application  Report  on
the TVWF Directive50 the Commission recalled the basic principles for regulation: Directives
must  revert  to  being  instruments  which  define  a  legal  framework  and  the  objectives  to  be
achieved.  Co-regulation  allows  for  the  implementation  of  the  objective  defined  by  the
Community by means of measures taken by the recognised stakeholder in a given area. The
legislature 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  legislature  reserves  the  right  to
directly employ statutory measures.

The  contributions  to  the  consultation  process  clearly  show  that  notions  like  self-regulation,
self-control  or  co-regulation  are  used  in  different  ways  in  the  Member  States.  Regulatory
models  that  are  called  “self-regulation”  in  one  Member  State  would  be  clearly  qualified  as
“co-regulation” by others. A great number of examples given show the large extent to which
co-regulatory  models  are  already  applied  in  the  present  framework.  They  seem  to  be
especially successful with respect to the application of rules on advertising and the protection
of minors.

Given the terminological problems many stakeholders still have with these notions, they call
for more clarity. The Commission  considers  that  the  White  Paper  on  European  Governance
and  the  Better  Legislation  Action  Plan  already  provide  the  key  elements  for  the  present
discussion. To attain better and faster regulation, the paper outlines the different factors that
allow  improvements  to  be  achieved  and  defines  the  conditions  for  the  use  of  co-regulation.
The  contributions  to  the  consultation  process  show  that  co-regulatory  models  have  been
established  in  a  number  of  Member  States  without  conflicting  with  the  Directive.  But  they
also  show  that  many  stakeholders  think  self-regulation  is  not  an  appropriate  solution  for
ensuring the fulfilment of all the policy objectives enshrined in the Directive.

In this context, it must also be examined how best to ensure that the development of national
co- and self-regulatory models do not disturb the functioning of the internal market by a re-
fragmentation of markets.

47

48

49

50

for 

Principles  and  guidelines 
COM(1999) 657 final.
COM(2001) 428 final, 25.7.2001.
COM(2002) 278 final.
COM(2002) 778 final, 6.1.2003, Annex point 2.1.2.

the  Community’s  audiovisul  policy 

in 

the  digital  age 

-

23

 
                                                
The Commission intends to launch a study of co-regulatory models in the media sector.
This analysis should provide the full picture of co-regulatory measures taken to date in
Member States and acceding countries,  as  well as of research  already  done. The study
should  state  in  which  sectors  these  measures  mainly  apply,  their  effect  and  their
consistency with public interest objectives.

4.

CONCLUSIONS AND TIMETABLE

Even though the effect of technological change on the development of the audiovisual market
has  been  slower  than  was  expected  only  a  few  years  ago,  digital  technologies  and
convergence will increasingly involve new forms of content, new means of providing it and
new  business  models  to  finance  it.  Regulatory  policy  in  the  sector  has  to  safeguard  certain
public interests, such as cultural diversity, the  right to information, the  protection of minors
and consumer protection now and in the future. The wide-ranging consultation confirmed that
these objectives are not called into question by technological or market developments. What
is  questioned  are  the  means  by  which  these  objectives  can  be  achieved  in  a  changed
environment.

With regard to regulation, the Commission will proceed in a two step approach. In the short-
term perspective more legal certainty can be provided by an interpretative Communication on
television advertising in so far as no revision of the Directive is required. This interpretative
communication will clarify in  particular to  what extent the present Directive  applies to new
advertising techniques. The Commission also will propose an update to the Recommendation
on the protection of minors and human dignity.

In the medium term, a number of issues need further thought and discussion, which could lead
to amendments of the TVWF Directive at a later stage. The issues will either be analysed by
the Commission taking the advice of experts (focus groups) or the Commission will order or
has already ordered independent studies on the respective subjects.
Meeting of focus groups will be organised in 2004 on the following subjects:
(cid:1)  regulation of audiovisual content;
(cid:1)  the level of detail in the regulation of advertising;
(cid:1)  the right to information and right to short reports.

Studies will be available on the following issues:
(cid:1)  Comparative study on the impact of control measures on the television advertising markets

in European Union Member States and certain other countries

(cid:1)  Study  on  the  impact  of  measures  concerning  the  promotion  of  the  distribution  and
production of TV programmes (Community and national) provided for under Article 25(a)
of the TVWF Directive

(cid:1)  Study on co-regulatory measures in the media sector
(cid:1)  Study on the regulatory treatment of interactive television

The plan for action is set out in the Annex.

24

 
Annex

Action

Interpretative  Communication  of  the  Commission  on
advertising

Proposal for an update of the Council Recommendation on
the protection of minors and human dignity

Completion Date

1st quarter 2004

1st quarter 2004

Proposal 
cinematographic heritage

for 

a  Council  Recommendation 

on

1st quarter 2004

Proposal  for  an  update  of  the  Commission’s  Cinema
Communication

Report on the application of Articles 4 and 5 of the TVWF
Directive

1st quarter 2004

1st half 2004

Meeting  of  focus  groups  (regulation  of  audiovisual
content, level of detail in regulation of advertising, right to
information)

2004

Possibly Commission decision on AV regulators group

2nd half 2004

Presentation  of  the  study  on  the  impact  of  measures
concerning 
the  distribution  and
production of TV programmes (Community and national)
provided for under Article 25 (a) of the TVWF Directive

the  promotion  of 

Presentation  of  the  comparative  study  on  the  impact  of
control  measures  on  the  television  advertising  markets  in
European  Union  Member  States  and  certain  other
countries

Fifth  Commission’s  report  on  the  application  of  the
TVWF Directive

3rd European Audiovisual Conference

Presentation  of  study  on  co-regulatory  measures  in  the
media sector

Around the end of 2004

Around the end of 2004

2005

2005

2005

25