Proposal for a Directive of the European Parliament and of the Council amending Council Directive 89/552/EEC on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities {SEC(2005) 1625} {SEC(2005) 1626}
Date: 2005-12-13
Institutions: European Commission
Subjects: advertising, approximation of laws, audiovisual co-production, audiovisual production, child protection, freedom to provide services, right of establishment

COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 13.12.2005 
COM(2005) 646 final 

2005/0260 (COD) 

Proposal for a 

DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 
AMENDING COUNCIL DIRECTIVE 89/552/EEC  

on the coordination of certain provisions laid down by law, regulation or administrative 
action in Member States concerning the pursuit of television broadcasting activities 

(presented by the Commission) 

{SEC(2005) 1625} 
{SEC(2005) 1626} 

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EXPLANATORY MEMORANDUM 

1)  CONTEXT OF THE PROPOSAL 

110 

•  Grounds for and objectives of the proposal 

The  market  for  European  television  services  has  changed  dramatically  through  the 
convergence  of  technologies  and  markets.  “Traditional”  television  broadcasting 
services  remain  regulated  on  the  basis  of  the  regulatory  approach  of  the  1980’s  and 
1990’s. While this approach has succeeded in spectacularly developing the audiovisual 
market  in  the  European  Union,  it  is  no  longer  adapted  to  the  increasing  degree  of 
choice  of  consumers  of  audiovisual  services  in  the  digital  age.  At  the  same  time, 
broadcasters have to compete increasingly with other linear services on other platforms 
and non-linear (on-demand) services that offer the same or similar audiovisual media 
content, but are subject to a different regulatory environment. This creates a non-level 
playing  field  in  the  way  content  is  delivered.  In  line  with  the  principles  of  “better 
regulation”, therefore, a fresh approach is required. 

120 

•  General context 

In view of technological and market developments and in order to further improve the 
competitiveness of European industry in the fields of information and communication 
technologies and media, the Commission has decided to launch a review of the current 
regulatory  framework  for  television  broadcasting.  The  modernisation  of  the  legal 
framework for audiovisual media services in the single market is an integral part of the 
Commission’s commitment to better regulation. At the same time, it contributes to the 
Lisbon agenda and is a crucial component of the new i2010 policy strategy adopted by 
the  Commission  in  June.  Moreover,  it  is  consistent  with  the  Communication  on 
accelerating  the  transition  from  analogue  to  digital  broadcasting  adopted  by  the 
Commission in May. 

With the work programme annexed to the Fourth Report on the application of Directive 
89/552/EEC “Television without Frontiers”1, the Commission launched in 2003 a first 
consultation  round  for  the  review  of  Council  Directive  89/552/EEC  as  amended  by 
Directive 97/36/EC (Television without Frontiers Directive – TVWF), including public 
hearings  and  a  written  consultation.  The  Commission  drew  the  conclusions  from  this 
first  consultation  in  the  Communication  on  the  Future  of  European  Regulatory 
Audiovisual Policy2. Following this Communication, Focus Groups were established to 
discuss certain issues in greater depth with experts. 

The results of the Focus Groups were presented to the Member States at a seminar in 
Luxembourg on 30 and 31 May and were summarised in “issues papers” published by 
the Commission in July 2005. The Commission received contributions from more than 
200  stakeholders  in  this  second  consultation  round  from  all  sectors,  including  civil 
society and industry representatives.  

The “issues papers” and contributions served as a basis for the preparation of a major 

1 
2 

COM(2002) 778. 
COM(2003) 784. 

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audiovisual  conference  co-organised  with  the  UK  Presidency  in  Liverpool  in 
September  2005.  This  Conference  wrapped  up  the  discussion  and  marked  the  end  of 
the consultation exercise.  

The main conclusion drawn from this debate was that keeping the “Television without 
Frontiers”  Directive  as  it  stands  now  would  aggravate  increasingly  unjustifiable 
differences in regulatory treatment between the various forms of distributing identical 
or similar media content and that action at EU level was thus needed to enhance legal 
certainty in order to ensure the best possible conditions for the competitiveness of the 
sector. 

The objective of this proposal is to ensure that on-demand audiovisual media services 
providers within the Member States can fully benefit from the internal market through 
the principle of regulation by the country of origin. This would enhance legal certainty 
overall for all audiovisual media service providers within the EU. 

This is in line with the principle of technological neutrality. Indeed, modern rules in the 
audiovisual policy field should not discriminate between and within different platforms 
delivering similar content and should create a level playing field for fair and enhanced 
competition between different operators, while enabling new services to flourish. 

At  the  same  time,  in  the  light  of  developments  in  technology,  the  market  and  users’ 
behaviour  (their  increased  choice  and  responsibility)  and  in  order  to  remain 
proportionate with the goals of general interest, a greater degree of flexibility is needed 
in  respect  of  the  rules  for  linear  audiovisual  media  services,  in  particular  as  regards 
advertising. 

In  sum,  the  objective  of  the  Commission’s  proposal is to modernise and simplify the 
regulatory framework for broadcasting or linear services and introduce minimum rules 
for non-linear audiovisual media services. 

130 

•  Existing provisions in the area covered by the proposal 

Council Directive 89/552/EEC as amended by Directive 97/36/EC concerns “television 
broadcasting”. The present proposal amends the TVWF Directives in order to establish 
a modernised and flexible framework for television broadcasts, including other linear 
(scheduled)  audiovisual  media  services,  and  to  introduce  a  set  of  minimum  rules  for 
non-linear (on-demand) audiovisual media services. 

140 

•  Consistency with the other policies and objectives of the Union 

This proposal is complementary to existing EU law, in particular Directive 2000/31/EC 
on  electronic  commerce,  which  also  deals  with  on-demand  services.  Directive 
2000/31/EC allows Member States to derogate from the country of origin principle for 
a  number  of  public  policy  reasons.  The  effect  is  that  on-demand  audiovisual  media 
services  can  be  subject  to  different  rules  for  contents  delivered  in  different  Member 
States (Article 3(4) of Directive 2000/31/EC). Furthermore, Directive 2000/31/EC does 
not deal with public policy issues such as the protection of minors or respect for human 
dignity,  whereas  the  current  proposal  includes  minimum  coordination  in  these  fields 
for  audiovisual  media  services.  Directive  2005/29/EC  applies  to  unfair  commercial 
practices, such as misleading and aggressive practices through a cross-media approach, 

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whereas 
communications appropriate to audiovisual media services.  

the  present  Directive  makes 

specific  provisions  on  commercial 

Directive 2003/33/EC prohibits advertising for cigarettes and other tobacco products in 
the press and other printed publications, in radio and in information society services. It 
also bans sponsorship, by tobacco companies, of radio programmes and of cross-border 
events. Moreover, recital 14 of Directive 2003/33/EC makes it clear that all forms of 
direct  and  indirect  audiovisual  commercial  communications  for  cigarettes  and  other 
tobacco products in broadcast services are prohibited by the TVWF Directive, as they 
would also be in all audiovisual media services if the present proposal is adopted.  

This proposal takes full account of the fundamental rights and principles recognised by 
the Charter of Fundamental Rights of the European Union, in particular its Article 11. 
In this regard, this proposal does not in any way prevent Member States from applying 
their constitutional rules relating to freedom of the press and freedom of expression in 
the media. 

2)  CONSULTATION OF INTERESTED PARTIES AND IMPACT ASSESSMENT 

•  Consultation of interested parties 

211 

Consultation methods, main sectors targeted and general profile of respondents 

A first public consultation took place in 2003. The Commission published discussion 
papers  on  its  website  and  invited  interested  parties  to  transmit  their  written 
contributions  by  15  July  2003.  The  Commission  received  more  that  150  written 
contributions  (around  1 350  pages)  from  all  relevant  parties  (private  and  public 
broadcasters,  regulators,  producers,  rights  holders)  and  most  Member  States. 
Subsequently, a series of public hearings was organised. 

The  Communication  from  the  Commission  on  the  future  of  European  regulatory 
audiovisual policy [COM(2003) 784, 15.12.2003] drew the conclusions from this first 
consultation round and set up three Focus Groups with experts to discuss i) the scope 
of  future  regulation,  ii)  adequate  rules  for  television  advertising  and  iii)  the  right  to 
information / short reporting. 

The  results  of  the  Focus  Group  discussions  were  summarised  in  “Issues  papers” 
published  in  July  2005  for  the  Audiovisual  Conference  co-organised  with  the  UK 
Presidency.  The  Commission  received  submissions  from  more  than  200  concerned 
parties, including ICT companies, telecom operators and internet service providers, in 
this  second  round  of  consultation.  The  consultations  triggered  a  wide  debate  on  the 
issues  at  stake  with  all  major  stakeholders,  which  culminated  at  the  Liverpool 
Conference in September 2005. 

The  2005  open  consultation  was  conducted  over  the  internet  from  11  July  2005  to  5 
September 2005. The Commission received responses from 206 stakeholders. 

The results of both consultations are available on the Commission’s website: 

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

http://europa.eu.int/comm/avpolicy/revision-tvwf2005/2005-contribution.htm 

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212 

Summary of responses and how they have been taken into account 

Scope of future regulation 

It  was  clearly  apparent  from  the  discussions  that  technological  neutrality  is  an 
important  principle.  Member  States,  consumer  organisations  and  public  service 
television  as  part  of  a 
broadcasters  support  revising 
comprehensive regulatory framework for all audiovisual media services. However, all 
agree  that  a  horizontal  approach  to  content  can  work  only  if  linear  and  non-linear 
services are subject to a two-tier system of rules.  

the  content  rules  for 

In the consultations, the majority view was that the distinction between linear and non-
linear services is a workable, future-oriented basis for a legal definition.  

Advertising 

Concerning  quantitative  rules,  some  flexibility  in  the  rules  concerning  insertion  and 
daily advertising limits was considered. This idea was widely supported by the industry 
and, to some extent, also by public service broadcasters and some Member States. 

Many  stakeholders  stressed  the  usefulness  of  co-  and  self-regulation  in  the  field  of 
advertising.  

Protection of minors and human dignity 

Concerning  the  protection  of  minors  and  the  incitement  of  hatred,  there  seems  to  be 
quite a broad consensus on the current balance in the TVWF Directive. Member States, 
public  service  broadcasters,  religious  organisations  and  consumers’  and  viewers’ 
organisations have all expressed the view that these values should apply to non-linear 
services as well, and not only to traditional television.  

Cultural diversity 

While  there  is  general  agreement  on  the  objective  of  a  vibrant  European  audiovisual 
production  sector  reflecting  the  diversity  of  our  cultures,  it  is  clear  that  transmission 
time  quotas  are  not  an  option  in  an  on-demand  world.  On  the  other  hand,  it  is 
recognised  that  the  Directive  should  provide  for  the  free  circulation  of  non-linear 
services in the internal market in a comprehensive way and needs to address this issue. 

Rights to information and short extracts 

The right to information and to short extracts is approached differently by the various 
stakeholders:  on  the  one  hand,  some  stakeholders  claim  that  there  is  no  need  for  the 
harmonisation  of  different  regulatory  frameworks  at  European  level,  while,  on  the 
other hand, public broadcasters consider that the current negotiating conditions do not 
facilitate  access  to  short  extracts,  so  a  provision  in  the  Directive  would  be  helpful  in 
that respect.  

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•  Collection and use of expertise 

221 

Scientific/expertise domains concerned 

-  comparative  study  on  the  impact  of  control  measures  on  the  television  advertising 
markets in European Union Member States (Carat); 

- study on the impact of measures for the promotion of the distribution and production 
of TV programmes - Community and national (David Graham and Associated Ltd.); 

- study on co-regulatory measures in the media sector (Hans Bredow Institut); 

-  study  on  the  application  of  rules  concerning  TV  advertising,  sponsorship  and 
teleshopping (Audimetrie); 

- Impact Assessment (Rand). 

222 

Methodology used 

Benchmarking,  statistical  research,  qualitative  interviews,  bibliography  research, 
collection  of  facts  and  figures  taking  into  account  economic  parameters  as  well  as 
technological factors. 

223 

Main organisations/experts consulted 

Focus  Groups,  Carat,  RAND,  David  Graham  and  Associated  Ltd.,  Hans  Bredow 
Institut, S.A. Audiometrie and all stakeholders in two public consultations. 

2249 

Summary of advice received and used 

The existence of potentially serious risks with irreversible consequences has not been 
mentioned. 

225 

- The study on the impact of measures concerning the promotion of the distribution and 
production of TV programmes confirms that Articles 4 and 5 TVWF have proved to be 
a  satisfactory  and  stable  framework  for  the  promotion  of  European  and  independent 
production  and  cultural  diversity.  They  have  had  —  since  entering  into  force  —  a 
considerable positive impact not only in terms of the increased scheduling of European 
works on European television but also in cultural and economic terms.  

- Impact of regulation on television advertising markets (Articles 10-20 of the TVWF 
Directive):  broadcasters  urge  a  simplification,  or  even  abolition  of  Article  11,  which 
they  consider  too  complicated.  The  number  of  breaks  is  lower  in  countries  where 
regulation  is  strict  and  higher  in  deregulated  markets.  Analysis  shows  that  the 
limitations provided for in Article 18 ensure a good balance between viewer protection 
and market needs. On product placement, clear and precise information to the public on 
the placement of an advertiser’s products in a programme could avoid qualification as 
surreptitious advertising. 

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226 

Means used to make the expert advice publicly available 

DG Information Society and Media website: 

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

230 

•  Impact assessment 

In addressing the review of the TVWF Directive, five possible options exist: 

(1) 

Repealing the Directive 

From the perspective of the internal market for audiovisual services, the protection of 
minors  and  human  dignity,  consumers  and  public  order  as  well  as  the  promotion  of 
cultural  diversity,  the  repeal  of  the  Directive  would  mean  that  only  national  rules 
would be applied and that the principle of  the country of origin would be lost for all 
broadcasters. 

(2) 

No change to the Directive 

Any  impact  assessment  has  to  consider  a  scenario  in  which  nothing  is  changed  (the 
status quo). This provides a benchmark for the evaluation of differential impacts. 

(3) 

Focused amendments and clarification of text 

The Directive would be revised to update the definitions in line with the case law of the 
Court of Justice of the European Communities in order to clarify that all linear services 
similar  to  television  are  covered.  The  Directive  would  not  encompass  non-linear 
services. 

Comprehensive  framework  with  graduated  treatment  of  linear  and  non-linear 

(4) 
services 

The  Directive  would  create  a  comprehensive  framework  for  any  form  of  electronic 
delivery of audiovisual content, but would treat different types of service (specifically 
linear and non-linear) differently. Non-linear services would be subject only to a basic 
tier of rules. 

(5) 

Full harmonisation with equal treatment of linear and non-linear services 

This  would  require  the  introduction  of  an  audiovisual  content  services  directive  that 
treats all types of services on an equal basis. Every provision of this directive — from 
the  country-of-origin  principle  to  the  requirements  for  European  and  independent 
production — would apply to all linear and non-linear providers alike. 

The impact assessment looked in detail at options 2, 3 and 4. 

The  repeal  of  the  Directive  —  option  1  —  would  benefit  neither  the  operators,  who 
could no longer operate in a co-ordinated and open pan-European audiovisual market, 
nor the consumers, who would lose the safeguards of having access to large number of 
audiovisual  services  respecting  minimum  qualitative  standards  independently  of  the 
MS  of  origin.  In  fact,  in  the  course  of  the  extensive  public  consultation  mentioned 

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under Chapter 1, none of the stakeholders made a proposal along these lines. For these 
reasons,  option  1  cannot  be  regarded  as  realistic  and  is  not  considered  by  the  impact 
assessment. 

Option 5 calls for full harmonisation across the entire audiovisual industry. It has not 
been  considered  either,  since  pursuing  this  within  the  current  context  —  a  highly 
diverse, rapidly evolving industry subject to a volatile mix of economic, political and 
socio-cultural interests — seems impossible in the foreseeable future. Again, none of 
the stakeholders has put forward a proposal along these lines. 

Nine  main  groups  of  stakeholders,  the  Member  State  administrations  and  the 
Commission  were  identified  as  being  directly  or  indirectly  involved  in  implementing 
regulation  based  on  the  TVWF  Directive  or  its  revision.  For  these  stakeholders,  a 
detailed impact analysis is summarised in tables for three policy options, as specified 
above, with regard to the main issues discussed during the public consultation — see 
Annex. 

The analysis demonstrated that the status-quo option (option 2), would have negative 
consequences for a considerable number of stakeholders. Only few stakeholders would 
clearly benefit from maintaining the Directive as it is. 

According  to  the  analysis,  option  3  would  impact  fewer  stakeholders  because  of  its 
limited scope, and would improve the risk/benefit balance for only a few stakeholders 
as well. For some of them this option would not result in any substantial modification 
of  overall  conditions,  while  in  a  minority  of  cases  it  would  represent  a  positive 
scenario. 

A  comprehensive  legislative  framework,  with  graduated  treatment  of  linear  and  non-
linear services, would represent almost the reverse of the status-quo option in respect 
of  the  number  of  stakeholders  benefiting  from  or  being  negatively  impacted  by  a 
comprehensive  revision  of  the  Directive.  While  a  relative  majority  of  stakeholders 
would  not  face  changed  conditions,  this  option  would  represent  a  substantially 
improved scenario for a very large number of stakeholders. Only in a few cases could 
conditions deteriorate, assuming a series of hypotheses were met.  

231 

The  Commission  carried  out  the  impact  assessment  in  accordance  with  the  work 
programme, a report on which is annexed to the draft legislative proposal and will be 
made available on DG Information Society and Media’s website: 

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

3)  LEGAL ELEMENTS OF THE PROPOSAL 

305 

•  Summary of the proposed action 

- Amending the Directive 

-  Common  minimum  rules  for  all  audiovisual  media  services  (including  non-linear 
services) 

-  Flexibility  and  modernisation  of  advertising  rules  while  ensuring  protection  of 

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310 

329 

331 

332 

341 

342 

consumers and meeting general public policy objectives 

•  Legal basis 

Articles 47(2) and 55 of the Treaty establishing the European Community. 

•  Subsidiarity principle 

With  regard  to  emerging  on-demand  audiovisual  media  services,  there  is  a  growing 
concern  that  differences  in  national  regulations  applying  to  these  services  will  create 
barriers to competition in the internal market. The revision of the TVWF Directive has 
to address the issue of improving the conditions for the establishment and functioning 
of the internal market so as to eliminate the (existing or likely) obstacles to the exercise 
of  the  fundamental  freedom  to  provide  services  resulting  from  national  rules  or  from 
appreciable  distortions  of  competition  due  to  the  disparities  between  national  rules 
governing new (on-demand) services. 

There  is  a  real  risk  of  legal  uncertainty  if,  with  the  emergence  of  on-demand 
audiovisual  services,  Member  States  were  to  derogate  from  the  country  of  origin 
principle for public policy reasons with the effect that on-demand audiovisual services 
would  be  subject  to  non-harmonised  rules  in  different  Member  States.  At  the  same 
time,  as  a  recent  questionnaire  sent  out  by  the  Commission  to  the  Members  of  the 
TVWF Contact Committee has shown, most Member States already regulate non-linear 
(on-demand)  services  with  regard  to  the  main  issues  at  stake.  Indeed,  Member  State 
regulations for on-demand audiovisual services do diverge, with 23 out of 25 Member 
States having some form of regulation for the majority of subjects concerned. Without 
a  harmonised  European  approach,  pan-European  offers  would  suffer  from  a  lack  of 
legal  certainty  and  may  choose  to  go  offshore  outside  the  EU  and  therefore  in  the 
medium-term harm Member State economies. 

•  Proportionality principle 

The  draft  only  proposes  minimum  harmonisation  to  ensure  the  free  movement  of 
audiovisual  media  services  in  the  internal  market.  As  regards  implementation,  it 
explicitly refers to co- and self-regulation. 

The proposal will considerably reduce the complexity involved in the monitoring of the 
rules  concerning  television  advertising.  As  the  harmonisation  of  minimum  rules  for 
non-linear audiovisual services mostly does not introduce new obligations for operators 
but  only  harmonises  them  at  European  level  to  implement  the  country  of  origin 
principle, it therefore seems proportionate to the objective.  

•  Choice of instruments 

Proposed instruments: directive, co-regulation, self-regulation. 

The  draft  proposes  a  set  of  instruments:  where  fundamental  rights  are  touched  upon, 
regulation  is  necessary.  Co-regulation  is  already  widely  used  with  regard  to  the 
protection  of  minors  and  the  proposal  should  encourage  co-regulatory  regimes  in  the 
fields  coordinated  by  the  Directive.  Such  regimes  must  be  broadly  accepted  by  the 
main stakeholders and provide for effective enforcement. 

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4)  BUDGETARY IMPLICATIONS 

409 

The proposal has no implications for the Community budget. 

5)  ADDITIONAL INFORMATION 

507 

510 

511 

512 

517 

531 

550 

560 

570 

•  Simulation, pilot phase and transitional period 

There will be a transitional period for the proposal. 

•  Simplification 

The proposal provides for the simplification of legislation. 

The  rules  concerning  television  advertising  in  the  current  TVWF  Directive  will  be 
considerably  simplified.  The  daily  limit  will  be  abolished,  the  advertising  categories 
simplified and the rule on the insertion of advertising made clearer and more flexible. 

The proposal is included in the Commission’s Work and Legislative Programme under 
the reference 2005/INFSO/032. 

•  Review/revision/sunset clause 

The proposal includes a review clause. 

•  Correlation table 

The  Member  States  are  required  to  communicate  to  the  Commission  the  text  of 
national provisions transposing the Directive as well as a correlation table between the 
national provisions and the Directive. 

•  European Economic Area 

The proposed act concerns an EEA matter and should therefore extend to the European 
Economic Area. 

•  Short explanation of the proposal 

The aim of the revision is to define rules for audiovisual media services in a platform 
neutral  way,  which  would  mean  that  the  same  basic  rules  apply  to  the  same  kind  of 
services. The set of applicable rules shall no longer depend on the delivery platform but 
on  the  nature  of  a  service.  The  future  regulation  will  distinguish  between  linear 
audiovisual  services  or  “broadcasting”,  including  IPTV,  streaming  or  web-casting  on 
one  side,  and  non-linear  services,  such  as  “video-on-demand”-  services,  on  the  other 
side. 

The  amending  Directive  introduces  new  definitions  based  around  the  notion  of 
“audiovisual  media  service”  in  Article  1  of  the  amended  Directive.  The  definition  of 
audiovisual media services covers mass media in their function to inform, entertain and 
educate, but excludes any form of private correspondence, like e-mails sent to a limited 
number of recipients. This definition also excludes all services the principal purpose of 

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which  is  not  to  provide  audiovisual  content,  even  where  such  services  contain  some 
audiovisual elements. Services where the audiovisual content is merely ancillary to and 
not the principal purpose of the service are not covered.  

The  new  Articles  3c  to  3h  contain  the  basic  tier  of  rules  for  all  audiovisual  media 
services. As a consequence, some of the specific provisions for television broadcasts, 
such as Article 7, Article 12 and Article 22a, can be abolished. 

Non-linear  (on-demand)  services  will  be  subject  to  some  minimum  principles  with 
regard to 

• 

• 

• 

• 

protection of minors 

prohibition of incitement to hatred 

identification of the media service provider 

identification of commercial communication 

some qualitative restrictions for commercial communication ( ex. for alcohol or 

• 
targeted at minors). 

The new Article 3b introduces a rule on the non-discriminatory application of the right 
to short news reporting for linear services. 

The main changes to Chapter IV on television advertising concern flexible rules for the 
insertion  of  advertising  (amended  Article  11),  clear  rules  for  product  placement,  the 
abolition of the daily limit on television advertising (old Article 18) and the dropping 
of quantitative restrictions with regard to teleshopping (old Article 18a). 

The daily limit of three hours of advertising per days is considered obsolete, as it finds 
no  application  in  practice  and  therefore  it  is  deleted.  The  insertion  rules  have  been 
simplified and made more flexible. Instead of being compelled - as is now the case - to 
allow  20  minutes  time  between  each  advertising  break,  broadcasters  can  now  choose 
the  most  appropriate  moment  to  insert  advertising  during  programmes.  Nonetheless, 
films  made  for  television,  cinematographic  works,  children’s  programmes  and  news 
programmes  may  be  interrupted  by  advertising  only  once  per  each  period  of  35 
minutes. 

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2005/0260 (COD) 

Proposal for a 

DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 
AMENDING COUNCIL DIRECTIVE 89/552/EEC  

on the coordination of certain provisions laid down by law, regulation or administrative 
action in Member States concerning the pursuit of television broadcasting activities 

(Text with EEA relevance) 

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, 

Having regard to the Treaty establishing the European Community, and in particular Articles 
47(2) and 55 thereof, 

Having regard to the proposal from the Commission3, 

Having regard to the opinion of the European Economic and Social Committee4, 

Having regard to the opinion of the Committee of the Regions5, 

Acting in accordance with the procedure laid down in Article 251 of the Treaty6, 

Whereas: 

(1) 

(2) 

Directive 89/552/EEC coordinates certain provisions laid down by law, regulation or 
administrative  action  in  Member  States  concerning  the  pursuit  of  broadcasting 
activities.  However,  new  technologies  in  the  transmission  of  audiovisual  media 
services call for adaptation of the regulatory framework to take account of the impact 
of  structural  change  and  technological  developments  on  business  models,  especially 
the  financing  of  commercial  broadcasting,  and  to  ensure  optimal  conditions  of 
competitiveness  for  Europe’s  information  technologies  and  its  media  industries  and 
services. 

The  laws,  regulations  and  administrative  measures  in  Member  States  concerning  the 
pursuit  of  television  broadcasting  activities  are  already  coordinated  by  Directive 
89/552/ECC, whereas the rules applicable to activities such as on-demand audiovisual 
media services contain disparities, some of which may impede the free movement of 
these  services  within  the  European  Union  and  may  distort  competition  within  the 
common  market.  In  particular,  Article  3(4)  of  Directive  2000/31/EC  provides  that 

3 
4 
5 
6 

OJ C […], […], p. […]. 
OJ C […], […], p. […]. 
OJ C […], […], p. […]. 
OJ C […], […], p. […]. 

EN 

12 

   EN 

 
 
                                                 
Member States may derogate from the country of origin principle for specific public 
policy reasons. 

The  importance  of  audiovisual  media  services  for  societies,  democracy  and  culture 
justifies the application of specific rules to these services. 

Traditional  audiovisual  media  services  and  emerging  on-demand  services  offer 
significant  employment  opportunities  in  the  Community,  particularly  in  small  and 
medium-sized enterprises, and stimulate economic growth and investment. 

Legal  uncertainty  and  a  non-level  playing  field  exist  for  European  companies 
delivering audiovisual media services as regards the legal regime governing emerging 
on-demand services, it is therefore necessary, both to avoid distortions of competition 
and to improve legal certainty, to apply at least a basic tier of coordinated rules to all 
audiovisual media services. 

The Commission has adopted a Communication on the future of European regulatory 
audiovisual  policy7,  in  which  it  stresses  that  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 Commission has adopted the initiative “i2010: European Information Society”8 to 
foster  growth  and  jobs  in  the  information  society  and  media  industries.  i2010  is  a 
comprehensive  strategy  designed  to  encourage  the  development  of  the  digital 
economy,  against  the  background  of  the  convergence  of  information  and  media 
services,  networks  and  devices,  by  modernising  and  deploying  all  EU  policy 
instruments:  regulatory  instruments,  research  and  partnerships  with  industry.  The 
Commission  has  committed  itself  to  creating  a  consistent internal  market  framework 
for the information society and media services by modernising the legal framework for 
audiovisual  services,  starting  with  a  Commission  proposal  in  2005  to  modernise  the 
Television without Frontiers Directive. 

On  6  September  2005,  the  European  Parliament  adopted  a  Resolution  on  the 
application  of  Articles  4  and  5  of  Directive  89/552/EEC,  as  amended  by  Directive 
97/36/EC,  for  the  period  2001-2002  (Weber  Report)9.  This  Resolution  calls  for  the 
adaptation of the existing Television without Frontiers Directive to structural changes 
and technological developments while fully respecting its underlying principles, which 
remain valid.  In  addition, it  in principle supports  the  general  approach of basic rules 
for  all  audiovisual  media  services  and  additional  rules  for  linear  (“broadcasting”) 
services. 

Communications  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 - COM(2003) 784, 15.12.2003. 
Communications  from  the  Commission  to  the  Council,  the  European  Parliament,  the  European 
Economic and Social Committee and the Committee of the Regions. “i2010 – A European Information 
Society for growth and employment” - COM(2005) 229, 1.6.2005. 
European  Parliament  resolution  on  the  application  of  Articles  4  and  5  of  Directive  89/552/EEC 
(“Television  without  Frontiers”),  as  amended  by  Directive  97/36/EC,  for  the  period  2001-2002,  A6-
0202/2005. 

(3) 

(4) 

(5) 

(6) 

(7) 

(8) 

7 

8 

9 

EN 

13 

   EN 

 
                                                 
(9) 

This Directive enhances compliance with fundamental rights and is fully in line with 
the  principles  recognised  by  the  Charter  of  Fundamental  Rights  of  the  European 
Union,  in  particular  Article  11  thereof.  In  this  regard,  this  Directive  does  not  in  any 
way  prevent  Member  States  from  applying  their  constitutional  rules  relating  to 
freedom of the press and freedom of expression in the media. 

(10)  Because of the introduction of a minimum set of harmonised obligations in Articles 3c 
to  3h  and  in  the  areas  harmonised  in  this  Directive  Member  States  can  no  longer 
derogate from the country of origin principle with regard to protection of minors and 
fight against any incitement to hatred on grounds of race, sex, religion or nationality, 
and  violation  of  human  dignity  concerning  individual  persons  or  protection  of 
consumers  as  provided  in  Article  3(4)  of  Directive  2000/31/EC  of  the  European 
Parliament and the Council10. 

(11)  Directive  2002/21/EC  of  the  European  Parliament  and  the  Council11  according  to  its 
Article 1(3) is without prejudice to measures taken at Community or national level, to 
pursue  general  interest  objectives,  in  particular  relating  to  content  regulation  and 
audiovisual policy.  

(12)  No provision of this Directive should require or encourage Member States to impose 
new systems of licensing or administrative authorisation on any type of media. 

(13)  The  definition  of  audiovisual  media  services  covers  all  audiovisual  mass-media 
services, whether scheduled or on-demand. However, its scope is limited to services as 
defined  by  the Treaty and therefore  covers  any form of economic activity, including 
that of public service enterprises, but does not cover non-economic activities, such as 
purely private websites. 

(14)  The  definition  of  audiovisual  media  services  covers  mass  media  in  their  function  to 
inform, entertain and educate, but excludes any form of private correspondence, such 
as  e-mails  sent  to  a  limited  number  of  recipients.  The  definition  also  excludes  all 
services  not  intended  for  the  distribution  of  audiovisual  content,  i.e.  where  any 
audiovisual  content  is  merely  incidental  to  the  service  and  not  its  principal  purpose. 
Examples  include  websites  that  contain  audiovisual  elements  only  in  an  ancillary 
manner; such as animated graphical elements,  small  advertising spots or  information 
related to a product or non-audiovisual service. 

(15)  This Directive does not cover electronic versions of newspapers and magazines. 

(16)  The  term  “audiovisual”  refers  to  moving  images  with  or  without  sound,  so  includes 

silent films but does not cover audio transmission or radio. 

(17)  The  notion  of  editorial  responsibility  is  essential  for  defining  the  role  of  the  media 
service  provider  and  thereby  for  the  definition  of  audiovisual  media  services.  This 
Directive  is  without  prejudice  to  the  liability  exemptions  established  in  Directive 
2000/31/EC. 

10 
11 

OJ L 178, 17. 7. 2000, p. 1. 
OJ L 108, 24.4.2002, p. 33. 

EN 

14 

   EN 

 
                                                 
(18) 

In  addition  to  advertising  and  teleshopping,  the  wider  definition  of  audiovisual 
commercial  communication  is  introduced.  It  comprises  moving  images  with  or 
without  sound  which  accompany  audiovisual  media  services  and  are  designed  to 
promote, directly or indirectly, the goods, services or image or a natural or legal entity 
pursuing  an  economic  activity  and  therefore  it  does  not  include  public  service 
announcements and charity appeals broadcast free of charge.  

(19)  The country of origin principle remains the core of this Directive, as it is essential for 
the  creation  of  an  internal  market.  This  principle  must  therefore  be  applied  to  all 
audiovisual  media  services  in  order  to  ensure  legal  certainty  for  media  service 
providers as the necessary basis for new business models and the deployment of these 
services.  It  is  also  essential  in  order  to  ensure  the  free  flow  of  information  and 
audiovisual programmes in the internal market. 

(20)  Technological  developments,  especially  with  regard  to  digital  satellite  programmes, 
mean that subsidiary criteria need to be adapted in order to ensure suitable regulation 
and effective implementation and to give players genuine power over the content of an 
audiovisual content service. 

(21)  As  this  Directive  concerns  services  offered  to  the  general  public  in  the  European 
Union, it should apply only to audiovisual media services that can be received directly 
or  indirectly  by  the  public  in  one  or  more  Member  States  with  standard  consumer 
equipment.  The  definition  of  “standard  consumer  equipment”  should  be  left  to  the 
competent national authorities. 

(22)  Articles  43  to  48  of  the  Treaty  lay  down  the  fundamental  right  to  the  freedom  of 
establishment.  Therefore,  audiovisual  media  service  providers  are  in  general  free  to 
choose the Member States where they are established. The European Court of Justice 
has also emphasised that “the Treaty does not prohibit an undertaking from exercising 
the  freedom  to  provide  services  if  it  does  not  offer  services  in  the  Member  State  in 
which it is established”12. 

(23)  Member  States  must  be  able  to  apply  stricter  rules  in  the  fields  coordinated  by  this 
Directive to media service providers under their jurisdiction. To ensure that such rules 
are  not  circumvented,  the  codification  of  the  case  law  of  the  European  Court  of 
Justice13,  combined  with  a  more  efficient  procedure,  is  an  appropriate  solution  that 
takes  account  of  Member  State  concerns  without  calling  into  question  the  proper 
application of the country of origin principle. 

(24)  Under  this  Directive,  notwithstanding  the  application  of  the  country  of  origin 
principle,  Member  States  may  still  take  measures  that  restrict  the  freedom  of 
movement  of  television  broadcasting,  but  only  under  certain  conditions  listed  in 
Article  2a  of  this  Directive  and  following  the  procedure  laid  down  in  this  Directive. 
However,  the  European  Court  of  Justice  has  consistently  held  that  any  restriction  of 

12 

13 

Case C-56/96 VT4, paragraph 22; Case C-212/97 Centros v. Erhvervs-og Selskabsstyrelsen; see also: 
Case C-11/95 Commission v Kingdom of Belgium and Case C-14/96 Paul Denuit. 
Case C-212/97 Centros v. Erhvervs-og Selskabsstyrelsen; Case C-33/74 Van Binsbergen v Bestuur van 
de Bedrijfsvereniging; Case C-23/93 TV 10 SA v. Commissariaat voor de Media, paragraph 21. 

EN 

15 

   EN 

 
                                                 
the freedom to provide services, such as any derogation from a fundamental principle 
of the Treaty, must be interpreted restrictively14. 

(25) 

In  its  Communication  to  the  Council  and  the  European  Parliament  on  Better 
Regulation for Growth and Jobs in the European Union15 the Commission stressed that 
a  careful  analysis  on  the  appropriate  regulatory  approach,  in  particular  whether 
legislation  is  preferable  for  the  relevant  sector  and  problem,  or  whether  alternatives 
such  as  co-regulation  or  self  regulation  should  be  considered.  For  co-regulation  and 
self-regulation,  the  Interinstitutional  Agreement  on  Better  Law-making16  provides 
agreed  definitions,  criteria  and  procedures.  Experience  showed  that  co-  and  self-
regulation  instruments  implemented  in  accordance  with  different  legal  traditions  of 
Member  States  can  play  an  important  role  in  delivering  a  high  level  of  consumer 
protection. 

(26)  Entertainment rights for events of public interest may be acquired by broadcasters on 
an exclusive basis. However, it is essential to promote pluralism through the diversity 
of  news  production  and  programming  across  the  European  Union  and  to  respect  the 
principles  recognised  by  Article  11  of  the  Charter  of  Fundamental  Rights  of  the 
European Union.  

(27)  Therefore, in order to safeguard the fundamental freedom to receive information and 
to  ensure  that  the  interests  of  viewers  in  the  European  Union  are  fully  and  properly 
protected,  those  exercising  exclusive  rights  concerning  an  event  of  public  interest 
should grant other broadcasters and intermediaries, where they are acting on behalf of 
broadcasters,  the  right  to  use  short  extracts  for  the  purposes  of  general  news 
programming on fair, reasonable and non-discriminatory terms taking due account of 
exclusive  rights.  Such  terms  should  be  communicated  in  a  timely  manner  before  the 
event  of  public  interest  takes  place  to  give  others  sufficient  time  to  exercise  such  a 
right. As a general rule, such short extracts should not exceed 90 seconds. 

(28)  Non-linear services are different from linear services with regard to choice and control 
the  user  can  exercise  and  with  regard  to  the  impact  they  have  on  society17.  This 
justifies imposing lighter regulation on non-linear services, which only have to comply 
with the basic rules provided for in Articles 3c to 3h.  

(29)  Because of the specific nature of audiovisual media services, especially the impact of 
these services on the way people form their opinions, it is essential for users to know 
exactly  who  is  responsible  for  the  content  of these services. It  is therefore important 
for  Member  States  to  ensure  that  media  service  providers  make  easily,  directly  and 
permanently accessible the  necessary  information on who has editorial responsibility 
for the content. It is for each Member State to decide the practical details as to how 
this  objective  can  be  achieved  without  prejudice  to  any  other  relevant  provisions  of 
Community law. 

14 

15 
16 
17 

Case C-355/98 Commission v Belgium [2000] ECR I-1221, paragraph 28; Case C-348/96 Calfa [1999] 
ECR I-0011, paragraph 23. 
COM(2005) 97. 
OJ C 321, 31.12.2003, p. 1. 
See e.g. Case C- 89/04, Mediakabel. 

EN 

16 

   EN 

 
                                                 
(30) 

In accordance with the principle of proportionality, the measures provided for in this 
Directive  are  strictly  limited  to  the  minimum  needed  to  achieve  the  objective  of  the 
proper  functioning  of  the  internal  market.  Where  action  at  Community  level  is 
necessary, and in order to guarantee an area which is truly without internal frontiers as 
far as audiovisual media services are concerned, the Directive must ensure a high level 
of  protection  of  objectives  of  general  interest,  in  particular  the  protection  of  minors 
and human dignity. 

(31)  Harmful content and conduct in audiovisual media services continue to be a concern 
for law-makers, industry and parents. There will also be new challenges, especially in 
connection with new platforms and new products. It is therefore necessary to introduce 
rules  to  protect  the  physical,  mental  and  moral  development  of  minors  as  well  as 
human  dignity  in  all  audiovisual  media  services  and  in  audiovisual  commercial 
communication.  

(32)  Measures taken to protect minors and human dignity must be carefully balanced with 
the  fundamental  right  to  freedom  of  expression  as  laid  down  in  the  Charter  on 
Fundamental Rights of the European Union. The aim of these measures should thus be 
to ensure an adequate level of protection of minors especially with regard to non-linear 
services but not to ban adult content as such. 

(33)  None  of  the  provisions  of  this  Directive  that  concern  the  protection  of  minors  and 
public  order  necessarily  requires  that  the  measures  in  question  be  implemented 
through prior control of audiovisual media services.  

(34)  Article  151(4)  of  the  Treaty  requires  the  Community  to  take  cultural  aspects  into 
account  in  its  action  under  other  provisions  of  this  Treaty,  in  particular  in  order  to 
respect and to promote the diversity of its cultures. 

(35)  Non-linear  audiovisual  media  services  have  the  potential  to  partially  replace  linear 
services.  Accordingly,  they  should  where  practicable  promote  the  production  and 
distribution  of  European  works  and  thus  actively  contribute  to  the  promotion  of 
cultural  diversity.  It  will  be  important  to  regularly  re-examine  the  application  of  the 
provisions relating to the promotion of European works by audiovisual media services. 
Within the framework of the reports set out in Article 3f paragraph 3, Member States 
shall also take into account notably the financial contribution by such services to the 
production and rights acquisition of European works; the share of European works in 
the  catalogue  of  audiovisual  media  services  as  well  as  in  the  effective  users’ 
consumption of European works proposed by such services. 

(36)  When implementing the provisions of Article 4 of Directive 89/552/EEC as amended, 
Member States should make provision for broadcasters to include an adequate share of 
co-produced European works or of European works of non-domestic origin. 

(37) 

It  is  important  to  ensure  that  cinematographic  works  are  transmitted  within  periods 
agreed between right holders and audiovisual media service providers. 

(38)  The availability of non-linear services increases the choice of the consumer. Detailed 
rules  governing  audiovisual  commercial  communication  for  non-linear  services  thus 
appear  neither  to  be  justified  nor  to  make  sense  from  a  technical  point  of  view. 
Nevertheless, all audiovisual commercial communication should respect not only the 

EN 

17 

   EN 

 
identification rules but also a basic tier of qualitative rules in order to meet clear public 
policy objectives. 

(39)  As  has  been  recognised  by  the  Commission  in  its  Interpretative  Communication  on 
certain  aspects  of  the  provisions  on  advertising  in  the  “Television  without  frontiers” 
Directive, the development of new advertising techniques and marketing innovations 
has created new effective opportunities for commercial communications in traditional 
broadcasting services, potentially enabling them to better compete on a level playing 
field with on-demand innovations18. This Interpretative Communication remains valid 
to  the  extent  that  it  refers  to  provisions  of  the  Directive  that  are  unaffected  by  the 
amending Directive. 

(40)  Commercial  and  technological  developments  give  users  increased  choice  and 
responsibility in their use of audiovisual media services. To remain proportionate with 
the goals of general interest, regulation must allow a certain degree of flexibility with 
regard to linear audiovisual media services: the separation principle should be limited 
to  advertising  and  teleshopping,  product  placement  should  be  allowed  under  certain 
circumstances and some quantitative restrictions should be abolished. However, where 
product  placement  is  surreptitious,  it  should  be  prohibited.  The  separation  principle 
should not prevent the use of new advertising techniques. 

(41)  Apart  from  the  practices  that  are  covered  by  the  present  Directive,  Directive 
2005/29/EC applies to unfair commercial practices, such as misleading and aggressive 
practices occurring in audiovisual media services. Moreover, as Directive 2003/33/EC, 
which prohibits advertising and sponsorship for cigarettes and other tobacco products 
in  printed  media,  information  society  services  and  radio  broadcasting,  is  without 
prejudice to 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,  in  view  of  the 
special  characteristics  of  audiovisual  media  services,  the  relation  between  Directive 
2003/33/EC  and  Directive  89/552/EEC  should  remain  the  same  after  the  entry  into 
force of the present Directive. Article 88(1) of Directive 2001/83/EC19 which prohibits 
advertising to the general public of certain medicine products applies, as provided in 
paragraph  5  of  the  same  Article,  without  prejudice  to  Article  14  of  Directive 
89/552/EEC;  the  relation  between  Directive  2001/83/EC  and  Directive  89/552/EEC 
should remain the same after the entry into force of the present Directive. 

(42)  As the increase in the number of new services has led to a greater choice for viewers, 
detailed  regulation  with  regard  to  the  insertion  of  spot  advertising  with  the  aim  of 
protecting  viewers  is  no  longer  justified.  While  the  Directive  does  not  increase  the 
hourly  amount  of  admissible  advertising,  it  gives  flexibility  to  broadcasters  with 
regard to its insertion where this does not unduly impede the integrity of programmes. 

(43)  The Directive is intended to safeguard the specific character of the European television 
landscape  and  therefore  limits  possible  interruptions  for  cinematographic  works  and 

18 
19 

OJ C 102, 28.4.2004, p. 2. 
As amended last by Directive 2004/27/EC of the European Parliament and of the Council of 31 March 
2004 amending Directive 2001/83/EC on the Community code relating to medicinal products for human 
use (OJ L 136, 30.4.2004 p. 34). 

EN 

18 

   EN 

 
                                                 
films made for television as well as for some categories of programmes that still need 
specific protection.  

(44)  The limitation on the amount of daily advertising was largely theoretical. The hourly 
limit  is  more  important  since  it  also  applies  during  prime  time.  Therefore  the  daily 
limit should be abolished, while the hourly limit should be maintained for advertising 
and  teleshopping  spots;  also  the  quantitative  restrictions  on  the  time  allowed  for 
teleshopping  or  advertising  channels  seem  no  longer  justified  given  increased 
consumer  choice.  However,  the  limit  of  20%  of  advertising  per  clock  hour  remains 
applicable,  except  for  more 
time  consuming  forms  of  advertising  such  as 
telepromotions and teleshopping windows that require more time on account of their 
inherent characteristics and method of presentation20. 

(45)  Surreptitious  advertising  is  a  practice  prohibited  by  this  Directive  because  of  its 
negative  effect  on  consumers.  The  prohibition  of  surreptitious  advertising  does  not 
cover legitimate product placement within the framework of this Directive. 

(46)  Product  placement  is  a  reality  in  cinematographic  works  and  in  audiovisual  works 
made for television, but Member States regulate this practice differently. To ensure a 
level  playing  field,  and  thus  enhance  the  competitiveness  of  the  European  media 
industry, it is necessary to adopt rules for product placement. The definition of product 
placement introduced here covers any form of audiovisual commercial communication 
consisting  of  the  inclusion  of  or  reference  to  a  product,  a  service  or  the  trade  mark 
thereof so that it is featured within a programme, normally in return for payment or for 
similar  consideration.  It  is  subject  to  the  same  qualitative  rules  and  restrictions 
applying to advertising.  

(47)  Regulators  should  be  independent  from  national  governments  as  well  as  from 
audiovisual  media  service  providers  in  order  to  be  able  to  carry  out  their  work 
impartially and transparently and to contribute to pluralism. Close cooperation among 
national regulatory authorities and the Commission is necessary to ensure the correct 
application of this Directive, 

HAVE ADOPTED THIS DIRECTIVE: 

Article 1 

Directive 89/552/EEC21 is hereby amended as follows:  

(1) 

The title is replaced by the following:  

“Directive [No] of the European Parliament and of the Council on the coordination 
of  certain  provisions  laid  down  by  law,  regulation  or  administrative  action  in 

20 

21 

Cases  Reti  Televisive  Italiane  SpA  (RTI)  C-320/94;  Radio  Torre  C-328/94;  Rete  A  Srl  C-329/94; 
Vallau  Italiana  Promomarket  Srl  C_337/94;  Radio  Italia  Solo  Musica  Srl  and  Others  C-338/94  and 
GETE Srl C_339/94 v Ministero delle Poste e Telecomunicazioni, ECR I-06471. 
OJ L 298, 17.10.1989, p. 23. Directive as last amended by Directive 97/36/EC (OJ L 202, 30.7.1997, p. 
60). 

EN 

19 

   EN 

 
                                                 
Member States concerning the provision of audiovisual media services (Audiovisual 
Media Services Directive)”. 

(2) 

Article 1 is replaced by the following: 

For the purpose of this Directive: 

“Article 1 

(a) 

(b) 

(c) 

‘audiovisual media service’ means a service as defined by Articles 49 and 50 
of the Treaty the principal purpose of which is the provision of moving images 
with or without sound, in order to inform, entertain or educate, to the general 
public  by  electronic  communications  networks  within  the  meaning  of  Article 
2(a) of Directive 2002/21/EC of the European Parliament and of the Council22, 

‘media  service  provider’  means  the  natural  or  legal  person  who  has  editorial 
responsibility  for  the  choice  of  the  audiovisual  content  of  the  audiovisual 
media service and determines the manner in which it is organised; 

‘television  broadcasting’  or  ‘television  broadcast’  mean  a  linear  audiovisual 
media service where a media service provider decides upon the moment in time 
when  a  specific  programme  is  transmitted  and  establishes  the  programme 
schedule; 

(d) 

‘broadcaster’ means provider of linear audiovisual media services; 

(e) 

(f) 

(g) 

(h) 

‘non-linear service’ means an audiovisual media service where the user decides 
upon  the  moment  in  time  when  a  specific  programme  is  transmitted  on  the 
basis of a choice of content selected by the media service provider; 

‘audiovisual  commercial  communication’  means  moving  images  with  or 
without sound which accompany audiovisual media services and are designed 
to promote, directly or indirectly, the goods, services or image of a natural or 
legal entity pursuing an economic activity; 

‘television advertising’ means any form of announcement broadcast whether in 
return  for  payment  or  for  similar  consideration  or  broadcast  for  self-
promotional purposes by a public or private undertaking in connection with a 
trade, business, craft or profession in order to promote the supply of goods or 
services,  including  immovable  property,  rights  and  obligations,  in  return  for 
payment; 

‘surreptitious  advertising’  means  the  representation  in  words  or  pictures  of 
goods,  services,  the  name,  the  trade  mark  or  the  activities  of  a  producer  of 
goods  or  a  provider  of  services  in  programmes  when  such  representation  is 
intended by the broadcaster to serve advertising and might mislead the public 
as to its nature. Such representation is considered to be intentional in particular 
if it is done in return for payment or for similar consideration; 

22 

OJ L 108, 24.4.2002, p. 33. 

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(i) 

(j) 

(k) 

‘sponsorship’ means any contribution made by a public or private undertaking 
not  engaged  in  providing  audiovisual  media  services  or  in  the  production  of 
audio-visual works, to the financing of audiovisual media services, with a view 
to promoting its name, its trade mark, its image, its activities or its products; 

‘teleshopping’  means  direct  offers  broadcast  to  the  public  with  a  view  to  the 
supply  of  goods  or  services,  including  immovable  property,  rights  and 
obligations, in return for payment. 

‘product  placement’  means 
audiovisual  commercial 
communication  consisting  of  the  inclusion  of  or  reference  to  a  product,  a 
service or the trade mark thereof so that it is featured within audiovisual media 
services, normally in return for payment or for similar consideration.” 

form  of 

any 

(3) 

Article 2 is amended as follows:  

(a) 

(b) 

(c) 

transmitted  by 
the  expression  “television  broadcasts 
In  paragraph  1, 
broadcasters”  is  replaced  by  the  expression  “audiovisual  media  services 
transmitted  by  media  service  providers”  and  the  expression  “broadcasts”  is 
replaced by the expression “audiovisual media services”; 

In paragraph 2, the word “broadcasters” is replaced by the expression “media 
service providers”; 

In  paragraph  3,  the  word  “broadcaster”  is  replaced  by  the  expression  “media 
service  provider”;  the  expression  “editorial  decision  about  programme 
schedules”  is  replaced  by  the  expression  “editorial  decision  about  the 
audiovisual media service”; the expression “television broadcasting activity” is 
replaced  by  the  expression  “audiovisual  media  service  activity”  and  the 
expression  “where  it  first  began  broadcasting”  is  replaced  by  the  expression 
“where  it  first  began  its  activity”,  the  expression  “decisions  on  programme 
schedules” is replaced by “decisions on audiovisual media service”. 

(d) 

Paragraph 4 is replaced by the following: 

“4.  Media  service  providers  to  whom  the  provisions  of  paragraph  3  are  not 
applicable  shall  be  deemed  to  be  under  the  jurisdiction  of  a  Member  State  in 
the following cases:  

(a) 

they use a satellite up-link situated in that Member State; 

(b) 

although they do not use a satellite up-link situated in a Member State, 
they use a satellite capacity appertaining to that Member State.” 

(e) 

 In  paragraph  5,  the  word  “broadcaster”  is  replaced  by  the  expression  “media 
service provider” and “Article 52” is replaced by “Article 43”.  

(f) 

 Paragraph 6 is replaced by the following: 

“6.  This  Directive  does  not  apply  to  audiovisual  media  services  intended 
exclusively  for  reception  in  third  countries  and  which  are  not  received  with 

EN 

21 

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standard  consumer  equipment  directly  or  indirectly  by  the  public  in  one  or 
more Member States.” 

(g) 

 The following new paragraphs 7, 8, 9 and 10 are added: 

“7.  A  Member  State  may,  in  order  to  prevent  abuse  or  fraudulent  conduct, 
adopt  appropriate  measures  against  a  media  service  provider  established  in 
another Member State that directs all or most of its activity to the territory of 
the first Member State. This shall be proven on a case by case basis by the first 
Member State.  

8. Member States may take measures pursuant to paragraph 7 only if all of the 
following conditions are met: 

(a) 

the receiving Member State asks the Member State in which the media 
service provider is established to take measures; 

(b) 

the latter Member State does not take such measures; 

(c) 

(d) 

the first Member State notifies the Commission and the Member State 
in  which  the  media  service  provider  is  established  of  its  intention  to 
take such measures and 

the  Commission  decides  that  the  measures  are  compatible  with 
Community law. 

9.  Any  measures  pursuant  to  paragraph  7  shall  be  objectively  necessary, 
applied in a non-discriminatory manner, be suitable for attaining the objectives 
which  they  pursue  and  may  not  go  beyond  what  is  necessary  to  attain  them.

10.  The  Commission  shall  decide  within  three  months  following  notification 
under  paragraph  8.  If  the  Commission  decides  that  the  measures  are 
incompatible with Community law, the Member State in question shall refrain 
from taking the proposed measures.” 

(4) 

Article 2a is amended as follows: 

(a)  Paragraph 1 is replaced by the following: 

“1.  Member  States  shall  ensure  freedom  of  reception  and  shall  not  restrict 
retransmissions on their territory of audiovisual media services from other Member 
States for reasons which fall within the fields coordinated by this Directive.” 

(b) In paragraph 2 “Article 22a” is replaced by “Article 3e”. 

EN 

22 

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(5) 

Article 3 is replaced by the following:  

“Article 3 

1.  Member States shall remain free to require media service providers under their 
jurisdiction to comply with more detailed or stricter rules in the areas covered 
by this Directive. 

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

3.  Member States shall encourage co-regulatory regimes in the fields coordinated 
by this Directive. These regimes shall be such that they are broadly accepted by 
the main stakeholders and provide for effective enforcement.” 

(6) 

The following Articles 3b to 3h are inserted:  

“Article 3b 

1.  Member  States  shall  ensure  that,  for  the  purposes  of  short  news  reports, 
broadcasters established in other Member States are not deprived of access on a 
fair,  reasonable  and  non-discriminatory  basis  to  events  of  high  interest  to  the 
public which are transmitted by a broadcaster under their jurisdiction. 

2. 

Short  news  reports  may  be  chosen  freely  by  the  broadcasters  from  the 
transmitting broadcaster’s signal with at least the identification of their source. 

Article 3c 

Member  States  shall  ensure  that  audiovisual  media  service  providers  under  their 
jurisdiction shall make easily, directly and permanently accessible to the recipients of 
the service at least the following information: 

(a) 

the name of the media service provider; 

(b) 

the geographic address at which the media service provider is established; 

(c) 

the details of the media service provider, including his electronic mail address 
or  website,  which  allow  him  to  be  contacted  rapidly  in  a  direct  and  effective 
manner; 

(d) 

where applicable, the competent regulatory authority. 

EN 

23 

   EN 

 
Article 3d 

Member  States  shall  take  appropriate  measures  to  ensure  that  audiovisual  media 
services  under  their  jurisdiction  are  not  made  available  in  such  a  way  that  might 
seriously impair the physical, mental or moral development of minors. 

Article 3e 

Member  States  shall  ensure  by  appropriate  means  that  audiovisual  media  services 
and  audiovisual  commercial  communications  provided  by  providers  under  their 
jurisdiction  do  not  contain  any  incitement  to  hatred  based  on  sex,  racial  or  ethnic 
origin, religion or belief, disability, age or sexual orientation. 

Article 3f 

1.  Member  States  shall  ensure  that  media  service  providers  under  their 
jurisdiction promote, where  practicable  and by appropriate  means,  production 
of and access to European works within the meaning of Article 6.  

2.  Member  States  shall  ensure  that  media  service  providers  under  their 
jurisdiction do not transmit cinematographic works outside periods agreed with 
the rights holders. 

3.  Member  States  shall  report  to  the  Commission,  no  later  than  the  end  of  the 
fourth year after adoption of this Directive and every three years thereafter on 
the implementation of the measure set out in paragraph 1.  

4. 

The  Commission  shall,  on  the  basis  of  the  information  provided  by  Member 
States, report to the European Parliament and the Council on the application of 
paragraph 1, taking into account the market and technological developments. 

Article 3g 

Member  States  shall  ensure  that  audiovisual  commercial  communications  provided 
by providers under their jurisdiction comply with the following requirements: 

(a) 

audiovisual  commercial  communications  must  be  clearly  identifiable  as  such. 
Surreptitious audiovisual commercial communication shall be prohibited; 

(b) 

audiovisual commercial communications must not use subliminal techniques; 

(c) 

audiovisual commercial communications must not:   

(i) 

include any discrimination on grounds of race, sex, or nationality;   

(ii) 

be offensive to religious or political beliefs;   

(iii) 

encourage behaviour prejudicial to health or to safety; 

EN 

24 

   EN 

 
 
 
 
 
(iv) 

encourage behaviour prejudicial to the protection of the environment. 

(d) 

(e) 

(f) 

all  forms  of  audiovisual  commercial  communications  and  teleshopping  for 
cigarettes and other tobacco products shall be prohibited; 

audiovisual  commercial  communications  for  alcoholic  beverages  must  not  be 
aimed  at  minors  and  may  not  encourage  immoderate  consumption  of  such 
beverages;  

audiovisual  commercial  communications  must  not  cause  moral  or  physical 
detriment  to  minors.  Therefore  they  shall  not  directly  exhort  minors  to  buy  a 
product  or  service  by  exploiting  their  inexperience  or  credulity,  directly 
encourage  them  to  persuade  their  parents  or  others  to  purchase  the  goods  or 
services  being  advertised,  exploit  the  special  trust  minors  place  in  parents, 
teachers  or  other  persons,  or  unreasonably  show  minors  in  dangerous 
situations. 

Article 3h 

1.  Audiovisual  media  services  that  are  sponsored  or  that  contain  product 

placement shall meet the following requirements: 

(a) 

(b) 

(c) 

the scheduling, where appropriate, and the content of such audiovisual 
media services may in no circumstances be influenced in such a way 
as to affect the responsibility and editorial independence of the media 
service provider; 

they  must  not  directly  encourage  the  purchase  or  rental  of  goods  or 
services,  in  particular  by  making  special  promotional  references  to 
those goods or services;  

viewers  must  be  clearly  informed  of  the  existence  of  a  sponsorship 
agreement  and/or  the  existence  of  product  placement.  Sponsored 
programmes  must  be  clearly  identified  as  such  by  the  name,  logo 
and/or  any  other  symbol  of  the  sponsor  such  as  a  reference  to  its 
product(s)  or  service(s)  or  a  distinctive  sign  thereof  in  a  appropriate 
way  for  programmes  at  the  beginning,  during  and/or  the  end  of  the 
programmes.  Programmes  containing  product  placement  must  be 
appropriately identified at the start of the programme in order to avoid 
any confusion on the part of the viewer. 

2.  Audiovisual  media  services  must  not  be  sponsored  by  undertakings  whose 
principal  activity  is  the  manufacture  or  sale  of  cigarettes  and  other  tobacco 
products.  Further,  audiovisual  media  services  must  not  contain  placement  of 
tobacco products or cigarettes or product placement from undertakings whose 
principal  activity  is  the  manufacture  or  sale  of  cigarettes  and  other  tobacco 
products. 

3. 

The  sponsorship  of  audiovisual  media  services  by  undertakings  whose 
activities  include  the  manufacture  or  sale  of  medicinal  products  and  medical 

EN 

25 

   EN 

 
 
treatment may promote the name or the image of the undertaking but may not 
promote  specific  medicinal  products  or  medical  treatments  available  only  on 
prescription  in  the  Member  State  within  whose  jurisdiction  the  media  service 
provider falls. 

4.  News  and  current  affairs  shall  not  be  sponsored  and  not  contain  product 
placement. Audiovisual media services for children and documentaries may not 
contain product placement.” 

(7) 

Article 6 is amended as follows: 

(a)  Paragraph 1(c) is replaced by the following:   

“works co-produced in the framework of agreements related to the audiovisual sector 
concluded  between  the  European  Community  and  third  countries  and  fulfilling  the 
conditions defined within each of these agreements.” 

(b 

Paragraph 3 is deleted. 

(c)  Paragraph 4 becomes paragraph 3.  

(d)  Paragraph 5 is deleted. 

(8) 

Article 7 is deleted. 

(9) 

Article 10 is replaced by the following: 

“Article 10 

1. 

2. 

Television advertising and teleshopping shall be readily recognizable and kept 
quite  separate  from  other  parts  of  the  programme  service  by  optical  and/or 
acoustic means. 

Isolated  advertising  and  teleshopping  spots,  other  than  in  sports  programmes, 
shall remain the exception.” 

(10)  Article 11 is replaced by the following: 

“Article 11 

1.  Member  States  shall  ensure,  where  advertising  or  teleshopping  is  inserted 
during programmes, that the integrity of the programmes and the rights of the 
right holders are not prejudiced.  

2. 

The  transmission  of  films  made  for  television  (excluding  series,  serials,  light 
entertainment  programmes  and  documentaries),  cinematographic  works, 
children’s  programmes  and  news  programmes  may  be  interrupted  by 
advertising and/or teleshopping once for each period of 35 minutes.  

No advertising or teleshopping may be inserted during religious services.” 

EN 

26 

   EN 

 
 
 
(11)  Articles 12 and 13 are deleted. 

(12)  Articles 16 and 17 are deleted. 

(13)  Article 18 is replaced by the following:  

“Article 18 

1. 

2. 

The  proportion  of  short  forms  of  advertising  such  as  advertising  spots  and 
teleshopping spots within a given clock hour shall not exceed 20%. 

Paragraph  1  does  not  apply  to  announcements  made  by  the  broadcaster  in 
connection  with  its  own  programmes  and  ancillary  products  directly  derived 
from those programmes, sponsorship announcements and product placement.” 

(14)  Article 18a is deleted. 

(15)  Article 19 is replaced by the following: 

“Article 19 

The provisions of this Directive shall apply mutatis mutandis to television broadcasts 
exclusively  devoted  to  advertising  and  teleshopping  as  well  as  to  television 
broadcasts  exclusively  devoted  to  self-promotion.  Chapter  3  as  well  as  Article  11 
(rules on insertion) and Article 18 (duration of advertising and teleshopping) do not 
apply to these broadcasts.” 

(16)  Article 19a is deleted. 

(17)  Article 20 is replaced by the following: 

“Article 20 

Without prejudice to Article 3, Member States may, with due regard for Community 
law, lay down conditions other than those laid down in Article 11(2) and Article 18 
in  respect  of  broadcasts  intended  solely  for  the  national  territory  which  cannot  be 
received, directly or indirectly by the public, in one or more other Member States and 
in respect of broadcasts having no significant impact in terms of audience share.” 

(18)  Articles 22a and 22b are deleted. 

(19)  Article 23a is amended as follows:  

In  paragraph  2  (e)  the  expression  “television  broadcasting  services”  is  replaced  by 
the expression “audiovisual media services”. 

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27 

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(20)  The following Article 23b is inserted: 

“Article 23 b  

1.  Member  States  shall  guarantee  the  independence  of  national  regulatory 
authorities  and  ensure  that  they  exercise  their  powers  impartially  and 
transparently. 

2.  National  regulatory  authorities  shall  provide  each  other  and  the  Commission 
with  the  information  necessary  for  the  application  of  the  provisions  of  this 
Directive.” 

(21)  Articles 25 and 25a are deleted. 

(22)  Article 26 is replaced by the following:  

“Article 26  

Not later than […], 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  audiovisual  media  services,  in 
particular in the light of recent technological developments and the competitiveness 
of the sector.” 

Regulation (EC) No 2006/200423 is hereby amended as follows: 

Article 2 

Annex  ‘Directives  and  Regulations’  covered  by  Article  3(a)  No  4  of  this  Regulation  is 
replaced by the following: 

“4. 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:  Articles  3g  to  3h24  and 
Articles 10 to 2025. Directive as last amended by Directive .../.../EC of the European 
Parliament and of the Council26.” 

Article 3  

Member  States  shall  bring  into  force  the  laws,  regulations  and  administrative 
provisions  necessary  to  comply  with  this  Directive  by  at  the  latest.  They  shall 

OJ L 364, 9.12.2004, p. 1. 
OJ L xxxx, p xxx. 
OJ L 298, 17.10.1989, p. 23. 
OJ L xxxxx, p. xxx. 

1. 

23 
24 
25 
26 

EN 

28 

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forthwith  communicate  to  the  Commission  the  text  of  those  provisions  and  a 
correlation table between those provisions and this Directive. 

When  Member  States  adopt  those  provisions,  they  shall  contain  a  reference  to  this 
Directive  or  be  accompanied  by  such  a  reference  on  the  occasion  of  their  official 
publication. Member States shall determine how such reference is to be made. 

2. 

Member States shall communicate to the Commission the text of the main provisions 
of national law which they adopt in the field covered by this Directive. 

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

Article 4 

Article 5 

This Directive is addressed to the Member States. 

Done at Brussels,  

For the European Parliament 
The President 

For the Council 
The President   

EN 

29 

   EN