Opinion of the European Economic and Social Committee on the 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 COM(2005) 646 final — 2005/0260 (COD)
Date: 2006-09-14
Institutions: European Economic and Social Committee
Subjects: advertising, approximation of laws, audiovisual co-production, audiovisual production, child protection, freedom to provide services, right of establishment

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Official Journal of the European Union

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Opinion of the European Economic and Social Committee on the Proposal for a Directive of the
European Parliament and of the Council amending Council Directive 89/552/EEC on the coordina-
tion of certain provisions laid down by law, regulation or administrative action in Member States
concerning the pursuit of television broadcasting activities

COM(2005) 646 final — 2005/0260 (COD)

(2006/C 318/33)

On 7 February 2006, the Council decided to consult the European Economic and Social Committee, under
Articles 47(2) and 55 of
the Treaty establishing the European Community, on the abovementioned
proposal.

The Section for Transport, Energy, Infrastructure and the Information Society, which was responsible for the
Committee's work on the subject, adopted its opinion on 18 July 2006. The rapporteur was Mr Hernández
Bataller.

At its 429th plenary session, held on 13 and 14 September 2006 (meeting of 14 September), the European
Economic and Social Committee adopted the following opinion by 53 votes to seven, with ten abstentions.

1. Introduction

certain legal, regulatory and administrative provisions relating to
the provision of audiovisual media services in Member States,
and would be known as the Audiovisual Media Services Direc-
tive, rather than the Television without Frontiers Directive.

On 13 December 2005,

1.1
the European Commission
presented a proposal intended to update the Community Direc-
tive on Television without Frontiers, the first version of which
dates from 1989 (1) and was amended in 1997 (2). The provi-
sions of this Directive are to prevail in the event of conflict with
general regulations on service provision, as regards those aspects
relating to access to and pursuit of a services activity (3).

The directive would continue

to exclude private
1.2.2
messages, electronic versions of newspapers or magazines,
websites not primarily devoted to broadcasting audiovisual
material, and radio broadcasts.

1.2
The stated aim of this amendment (provided for in the
procedures for monitoring and assessing compliance with the
regulation) is to bring the directive into line with the realities of
In this new context, audiovisual
technological convergence.
material and services go far beyond the traditional scope of tele-
vision broadcasting, creating new regulatory requirements in
order to guarantee the smooth running of the single market, the
existence of a strong, creative European industry, and citizens'
rights. The modernisation of EU rules on audiovisual media
content also falls within the i2010 strategy, which aims to build
an information society that will boost growth and jobs (4).

In the wake of

the Liverpool conference (5)

1.2.1
the
proposed amendment re-establishes the regulatory scope of the
directive (which originally covered all audiovisual services) to
cover so-called ‘audiovisual media services’, with different regula-
tory levels according to whether the service is linear or non-
the coordination of
linear. The directive would thus cover

(1) Directive 89/552/EEC — OJ L 298, 17.10.1989, p. 23.
(2) Directive 97/36/EC — OJ L 202, 30.7.1997, p. 60.
(3) COM (2006) 160 final.
(4) See IP/05/643.
(5) Liverpool Audiovisual Conference on the Television without Frontiers

Directive, organised by the Commission.

1.3
The proposed amendment falls within the scope of the
interinstitutional agreement on Better lawmaking, adopted in
2003, with a dual goal: firstly, to simplify, loosen and reduce
the regulatory obligations of European audiovisual service provi-
ders; secondly, to promote self-regulation and co-regulation in
the sector. The proposal also aims to lay down a more basic,
fundamental regulatory framework, strengthening the country-
of-origin principle after the directive has been incorporated into
Member States' legal systems.

2. Commission proposal

2.1
As mentioned, the Commission proposes to extend the
scope of the directive to all audiovisual media services (6), which
are understood to be moving image services, with or without
sound, designed to inform and entertain the public via so-called
electronic networks (7).

(6) See the definition of these services in Articles 49 and 50 of the Treaty.
(7) See the definition of these networks in Article 2(a) of Framework Direc-
tive 2002/21/EC of the European Parliament and of the Council of
7 March 2002 on a common regulatory framework for electronic
communications networks and services. OJ L 108 of 24.4.2002, p. 33.

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2.2

These audiovisual media services may be:

— it shall not place emphasis on high alcoholic content as

being a positive quality of the beverages.

— linear, when the user must meet the provider's established
time constraints for the broadcasting of services, whatever
the distribution channel (terrestrial, satellite or cable televi-
sion, Internet, mobile telephony, etc.);

— non-linear, when the user decides when to access the service

or specific content made available by the provider.

In accordance with this distinction, television broad-
2.2.1
casting is defined as ‘a linear audiovisual media service where a
media service provider decides upon the moment in time when
the
a specific programme
programme schedule’. The broadcaster
‘any
provider of linear audiovisual media services’.

transmitted and establishes
is defined as

is

In line with this extended scope, the proposed amend-
2.3
ment to the directive introduces the general concept of audiovi-
sual commercial communication, which refers
to moving
images, with or without sound, which accompany audiovisual
media services and are designed to promote, directly or indir-
ectly, the sale of goods or services. Television advertising is
understood as forming part of audiovisual commercial commu-
nication, when it relates to announcements broadcast on televi-
sion either to promote the supply of goods or services in return
for payment or for similar consideration, or for self-promotional
purposes by the broadcaster. The same applies to teleshopping.

The current ban on television advertising and televised
2.3.1
sales of cigarettes and other tobacco products is extended to all
forms of audiovisual commercial communication. The ban is
also upheld on advertising and televised sales of prescription
medicine, and the advertising restrictions on alcoholic drinks
are maintained in order to prevent the encouragement of immo-
derate consumption and to protect minors:

The proposal maintains the ban on surreptitious adver-
2.3.2
tising, which is understood to mean ‘the representation in words
or pictures of goods, services, the name, the trade mark or the
activities of a producer or provider when such representation is
intended by the broadcaster to serve advertising and might
mislead the public’ as to its nature, generally by failing to give
identification or warning. In this context, it is established that
television advertising must be ‘readily recognisable and kept
quite separate from other parts of the programme service by
optical and/or acoustic means.’

2.3.3
Nonetheless, a new definition is introduced for product
placement, which is distinguished from surreptitious audiovisual
commercial communication despite being defined in a similar
way: ‘the inclusion of or reference to a product, service or trade-
mark forming part of audiovisual media services, normally in
return for payment or for similar consideration’. In order to be
lawful, product placement must meet a series of requirements.
For instance:

— it ‘must not encourage the purchase or rental of goods or
services, in particular by making special promotional refer-
ences to those goods or services’;

— viewers must be clearly informed of

the existence of a
product placement agreement, and placement must be
clearly identified;

— 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’;

— it may not be aimed specifically at minors or, in particular,

depict minors consuming these beverages;

— product placement is banned from news and current affairs
programmes, documentaries and audiovisual media services
for children.

— it shall not link the consumption of alcohol to enhanced

physical performance or to driving;

— it shall not create the impression that the consumption of

alcohol contributes towards social or sexual success;

The proposal maintains the references to sponsorship
2.3.4
and the conditions under which it is allowed, with some basic
changes to bring the activity into line with the new field of
application. The ban is also maintained on the use of subliminal
techniques in audiovisual commercial communications.

— it shall not claim that alcohol has therapeutic qualities or
that it is a stimulant, a sedative or a means of resolving
personal conflicts;

2.4 With regard to Member States' rights and duties, and in
keeping with the current directive, the proposal stipulates that:

— it shall not encourage immoderate consumption of alcohol
or present abstinence or moderation in a negative light;

— Member States must ensure freedom of reception of audiovi-

sual communication media from other Member States;

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— they must ensure, within the framework of their legislation
and by appropriate means,
that media service providers
under their jurisdiction effectively comply with the directive;

tion, in order to produce short news reports with the indica-
tion of their source;

— they ‘remain free to require media service providers under
their jurisdiction to comply with more detailed or stricter
rules in the areas covered by [the] Directive’;

— they have the power to ensure that the public can freely
access events of high public interest, preventing them from
being retransmitted exclusively by broadcasters under their
jurisdiction;

— they must guarantee easy, direct and permanent access to
information on the name, postal and electronic address of
the audiovisual media service providers under their jurisdic-
tion, and the competent regulatory authority;

— they must guarantee that media service providers under their
jurisdiction promote, where practicable and by appropriate
means, production of and access to European works;

— they must ensure that media service providers under their
jurisdiction do not transmit cinematographic works outside
periods agreed with the rights holders;

— they must ensure that broadcasters under their jurisdiction
transmit cinematographic works outside periods

do not
agreed with the rights holders;

— they are expressly asked to encourage co-regulation in the
fields coordinated by the directive, so that it may be effec-
tively enforced and accepted by the main stakeholders.

their

— they must ensure (whenever possible and, in some cases, in
a progressive fashion) that broadcasters reserve a majority
proportion of
transmission time for European or
related works, and 10 % of this time (or 10 % of their sche-
duling budget) for European works by producers that are
independent from the broadcasters, with a sufficient propor-
tion being reserved for recent works. The time calculated
excludes certain content such as news, sports events, games,
advertising, teletext services and teleshopping.

It

remains possible for a Member State to adopt
2.4.1
measures against a media service provider established in another
Member State,
in order to prevent certain provisions of the
directive being breached, as long as the provider directs all or
most of its activity to the territory of the first Member State, the
Member State in which the provider is based does not take such
measures despite having been required to do so, and the
Commission's approval is received.

2.4.2
The proposal upholds the quotas set down by the
current directive for national and European audiovisual produc-
tions and independent audiovisual productions. These quotas
have been met satisfactorily in recent years, according to impact
assessment reports.

2.5
The proposal reformulates the current directive's provi-
sions on the regulation of the values broadcast by audiovisual
media service providers.

2.5.1

The proposal states that these services must not:

— seriously impair the physical, mental or moral development

of minors;

— contain any incitement to hatred based on sex, racial or
ethnic origin, religion or belief, disability, age or sexual
orientation.

The proposal maintains the current express reference to the
non-transmission of programmes that include scenes of porno-
graphy or gratuitous violence. Also, for programmes that might
impair the physical, mental or moral development of minors,
technical coding, watershed or content classification measures
must be adopted so as to guarantee that minors in the area of
transmission will not hear or see such broadcasts.

2.5.2

Audiovisual commercial communications must not:

— include any discrimination on grounds of race, sex, or

nationality;

2.4.3
concerning Member States:

The proposal

introduces

the

following provisions

— be offensive to religious or political beliefs;

— they must ensure that broadcasters based in other Member
States have access to events of high public interest, trans-
mitted by a broadcaster under the Member State's jurisdic-

— encourage behaviour prejudicial to the protection of

the

environment;

— encourage behaviour prejudicial to health or to safety;

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— cause moral or physical detriment to minors. Therefore, they
must not ‘exhort minors to buy a product or service by
exploiting their inexperience or credulity, encourage minors
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’.

Similarly, it regrets that the Commission has not seized
3.2
the opportunity to get rid of certain shortcomings and ambigu-
ities in the current directive, which have proved difficult to inter-
pret and apply, and have led to legal
insecurity both in the
implementation of the directive and in the laws transposing it
to the legal systems of the different Member States.

The proposed amendment reduces the legislative require-
2.6
ments for advertising breaks, simplifying and relaxing many of
the application criteria.

The exceptional nature of isolated advertising and tele-
2.6.1
shopping spots
is maintained, apart now from in sports
programmes. The preference is also maintained for advertising
breaks between programmes, although breaks are admitted
during programmes provided that
the
programmes and the rights of the right holders are not under-
mined.

integrity of

the

2.6.2
The various criteria for admissible advertising breaks,
the spacing between these breaks and exceptions depending on
the type of programme are replaced by a general rule, under
which the transmission of films made for television, cinemato-
graphic works, children's programmes and news programmes
may be interrupted by advertising or teleshopping once for each
period of 35 minutes. The insertion of advertising during the
transmission of religious services remains forbidden.

2.6.3 With regard to the transmission time devoted to adver-
tising in its various forms, the proposal only maintains the
general criterion of 20 % per clock hour for advertising, tele-
shopping and other short promotional formats, and continues
to exclude from this calculation ‘announcements made by the
broadcaster in connection with its own programmes and ancil-
lary products directly derived from those programmes,’ and
sponsorship, which now also includes product placement.

3. General comments

3.1
The EESC considers it necessary to amend the current
Television without Frontiers Directive in order to bring it into
line with the new context of technological convergence and the
new advertising and promotional practices. It also recognises
the need for more applicable, effective legislation that will help
to increase trade in audiovisual media services on the European
single market, strengthening and boosting its development.
However, it feels that the amendment should respond equally to
the demands of technological and economic development and
to the need to protect human dignity and personal integrity.

For example, no definition is given of the forms of
3.2.1
advertising regulated by the directive,
including some of the
unlawful practices covered therein. Although this matter will be
covered in greater detail in the specific comments below, it is
worth pointing out here, by way of example, that in recital 44,
telepromotions are excepted from the sphere of advertising;
however, at no point in the text are the characteristics and
limitations of this form of advertising defined.

The EESC does not believe there are any grounds for this omis-
sion and that, in any case, telepromotions should be included
within the sphere of advertising. Otherwise, this would serve
only to penalise advertising and transfer commercial communi-
cations to other formats, thus maintaining or even increasing
advertising saturation levels.

far

3.2.2 Moreover,
from promoting legislative harmony
between Member States, the combination of increasingly basic
regulations and the reinforcement of the country-of-origin prin-
ciple could cause major legislative differences in this area, parti-
cularly as regards advertising and the protection of minors,
hindering the development of the single market or substantially
reducing consumer protection.

3.3
Although the aim is to clarify the difference between
audiovisual media services (which would be regulated by the
amended directive) and other audiovisual services (which fall
within the general scope of electronic communications regula-
tions), it is likely that the scope of the directive will become
harder and harder to define as formats are developed with an
increasingly indiscriminate mix of text, sound and images.

3.4
The EESC believes that the amendment to the directive
should at least maintain (and, if possible, extend) the guarantees
protecting viewers of these audiovisual media services, particu-
larly minors. As pointed out,
in addition to the objectives
pertaining to the single audiovisual market, the directive must
promote a series of social and cultural values relating to diver-
(as
identity, personal development, human dignity
sity,
mentioned in the recitals of the proposal), and the rights to
information and freedom of expression, all of which are
enshrined in the EU Charter of Fundamental Rights (8). More-
over, the case law of the European Court of Justice (9) considers
television operation to be a service of general economic interest.

(8) OJ C 364 of 2000.
(9) Judgment of 30 April 1974 in case C-15/73, ECR 203 et seq. Judgment
of the Court of First Instance of 10 July 1991 in case T‑69/89, ECR II-
525. Judgment of the Court of First Instance of 18 September 2001 in
case T-112/99, ECR II-2549 et seq.

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The EESC believes that the proposed amendment should
3.5
go a step further, by proposing specific measures in areas such
as pluralism and concentration of the media. When it comes to
the promotion of European productions, the EESC would have
expected a more decisive stance vis-à-vis the Member States,
without making such promotion subject to ‘where practicable’,
and vis-à-vis the gradual application, to non-linear services, of
the criteria requiring productions to be European and indepen-
dent, as far as possible.

As

regards

the right of

reply provided for

3.6
in the
proposal, the Commission has not taken account of the EESC's
position (10) on the need to make provision for a ‘right of
correction’, with the same general scope and in the same condi-
tions, in order to combat false, incorrect or inaccurate content
that affects people's rights.

The EESC believes that

3.7
the proposal should make it
necessary or mandatory for there to be regulatory authorities in
all Member States, displaying not only impartiality and transpar-
ency, but also independence from governments in the way they
are created, established and exercise their functions. We are
convinced that in the future thought will have to be given as to
whether a European agency, institution or similar supranational
body should be set up.

4. Specific comments

the definition of

The EESC believes that

4.1
‘audiovisual
commercial communication’ proposed by the Commission is
too restrictive, mechanically reproducing the definition of
‘audiovisual media services’. It seems logical to define them as
‘moving images with or without sound’, making moving images
a necessary condition for these audiovisual media services, and
leaving the Internet-based press and radio broadcasting outside
the scope of the directive. However, as the scope has been
defined, audiovisual commercial communications
linked to
audiovisual media services can use static images (e.g. logos or
advertising posters) or sounds on their own, without images (e.
g. a spoken reference to a brand or an advertising jingle). It
would be preferable to define audiovisual commercial communi-
cation as ‘images and/or sounds accompanying audiovisual
media services designed to promote, whether directly or indir-
ectly, the goods, services or image of a physical or legal person
for economic purposes’.

The proposal maintains

4.2
the current criterion which
considers television advertising as material transmitted in return
for payment. The EESC believes that the intention to promote
products and services should be established as the defining
criterion, rather than payment, as this would be consistent with
other Community definitions
that used in the
Misleading Advertising Directive. This would avoid the risk of
transmitting advertisements for products banned from being

such as

(10) OJ C 221 of 8.9.2005, p. 17 (Rapporteur: Mr Pegado Liz).

advertised on television or unlawful advertisements, which can
currently be screened provided that
there is no conclusive
demonstration of payment and, therefore, of their nature as a
television advertisement. The same should apply to the reference
to the payment requirement in the definition of teleshopping.

4.2.1
If the proposed criterion is maintained, the directive
should allow Member States to empower courts (in the event of
civil or administrative proceedings) to demand that broadcasters
prove that no payment has been received for audiovisual
communication, as indicated in Directive 84/850/EEC. Other-
wise, this communication would be presumed to be commercial
in nature.

The proposal's definition of surreptitious advertising is
4.3
very similar to the current version. However, the EESC believes
that the definition of ‘surreptitious’ should be applied to audiovi-
sual commercial communication overall, and not just to televi-
sion advertising, given that the provision expressly prohibits
surreptitious audiovisual commercial communication.

The EESC also believes that the concept of surreptitious
4.3.1
audiovisual commercial communication should be extended
beyond that which is currently expressed in the proposal:

— it should include presentation or reference to goods and
services not just through words or images, but also through
sounds (e.g. an advertising jingle associated with a particular
brand or product);

— with regard to the content of this presentation or reference,
it should not just include the name, brand or activities of
the provider, but also other distinctive features of the goods
or services, if unequivocally related (e.g. a particular type of
packaging or a slogan, even when the brand is not
mentioned).

4.3.2
Furthermore, it should be clearly stated in the directive
that product placement will not be considered as surreptitious
audiovisual
it
complies with the legal requirements set down therein.

communication provided that

commercial

in the proposed amendment

The EESC welcomes the express reference to product
4.4
to the directive.
placement
Although at present any product placement can, theoretically,
be considered as surreptitious advertising and therefore prohib-
ited, in practice it has not even tended to be seen as television
advertising,
thus remaining outside the scope of regulation.
However, the EESC believes that the definition of product place-
ment should clearly indicate, as distinguishing features of this
practice,
intentional promotion by the broadcaster and the
failure to warn the public by visual or acoustic means of the
promotional nature of this placement for its duration (i.e. simul-
taneously), as is the case for other formats such as telepromo-
tions.

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The text

should stipulate that product placement
4.4.1
cannot influence scheduling to such an extent that its indepen-
dence and integrity are affected, in line with the provisions set
down for other promotional formats. The relevant restrictions
should be extended so that product placement is prohibited not
in the case of advertising bans, programmes aimed at
just
minors or news programmes, but also in the case of advertise-
ments
for medicine and, as mentioned below, alcoholic
beverages.

In line with the current directive, the proposal prohibits
4.5
the use of subliminal
techniques in audiovisual commercial
communication. However, at no point does the text define these
techniques. The EESC believes that the concept should be clearly
developed, making reference to the use of visual or acoustic
stimuli broadcast at levels that border on the limits of sensory
perception and are perceived subconsciously.

4.6
The proposal stipulates that the promotion of products
in audiovisual commercial communication can be direct or
indirect. In some instances, such as cigarettes and other tobacco
products, commercial communication is also prohibited when it
is indirect. However, the text gives no definition of this means
of audiovisual commercial communication. The EESC believes
that
it should be
pointed out that, even when products are not directly presented
or referred to, use is made of brands, symbols and other distinc-
tive features of products or companies whose main or known
activities include the production or marketing of these products.

the concept should be clearly developed;

4.7
Article 3g(c) of the amended directive sets out the list of
values with which audiovisual commercial communications
must comply. The list repeats the requirements for advertising
and teleshopping stipulated in the current text, but the reference
to human dignity has been removed. The EESC believes that, in
the light of the European Convention on Human Rights and the
EU Charter of Fundamental Rights, this important reference
should be maintained.

The EESC regrets that the Commission's proposal does
4.8.1
not include more tutelary protection schemes as have proved
effective in some Member States (for example, stepping up the
protection of minors from advertising content, or restricting
misleading advertising and teleshopping practices).

4.9 When it comes to establishing restrictions for audiovisual
media services and related audiovisual commercial communica-
tions, the proposal contains some differences which lack justifi-
cation. With regard to media services, the proposal mentions
‘incitement to hatred based on sex, racial or ethnic origin, reli-
gion or belief, disability, age or sexual orientation’, and in refer-
ence to commercial communications it mentions ‘discrimination
on grounds of race, sex, or nationality’. The reference to human
dignity has disappeared.
In relation to audiovisual media
services, the proposal mentions the serious impairment of ‘the
physical, mental or moral development of minors’; for audiovi-
sual commercial communications, this is limited to ‘moral or
physical’ detriment to minors. There is no ban on these commu-
nications encouraging or promoting violent and antisocial beha-
viour or cruelty to animals. The EESC believes that these restric-
tions should be extended as fully as possible to both audiovisual
media services and audiovisual commercial communications.

4.10 With regard to the basic information that broadcasters
must supply, the EESC believes that, when a regulatory authority
exists, they should be expressly required to provide at least their
postal and electronic addresses.

Audiovisual commercial communication for alcoholic
4.11
beverages is restricted in its target audience (it cannot be aimed
at young people) and its content, which must not promote
immoderate consumption of such drinks. However, the EESC
believes that the serious problems linked with alcohol consump-
tion, particularly among young people, would justify stricter
regulation by the Commission. This could be established in line
with:

— programmes/content (e.g. not just for programmes aimed

specifically at young people, but also sports);

4.8
The proposal maintains the requirement that Member
States 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.
It also maintains the time
constraints that must continue to apply to content that could
(even slightly) affect this development, and renews the extensive
ban on pornography and gratuitous violence. It would be useful
to examine the actual effectiveness of this ban by evaluating the
extent to which the directive has been followed since 1989, and
to consider whether the ban could be eliminated, basing the
protection of minors from violent or pornographic material on
the measures (encoding, watershed, warning) that are already
included in the text.

— broadcasting schedules in the case of linear services (e.g. no
audiovisual commercial communication relating to these
products before 10 p.m.);

— the alcohol content of products (e.g. prohibition of audiovi-
sual commercial communications for alcoholic beverages of
18o vol. or above);

— the concentration of advertisements in slots, in the case of
television advertising (e.g. no more than one per advertising
break/advertiser/programme);

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— the promotional and advertising format adopted (e.g. prohi-
bition of product placement and sponsorship by manufac-
turers of alcoholic beverages or, at least, the application of
scheduling restrictions as indicated above).

it

For example,

should mention the possibility of
4.12
the
seeking injunctions on the grounds of
provisions of
the directive (in accordance with Directive
98/27/EC) which, despite being mentioned in other relevant
legislation such as Directive 2005/29/EC on Unfair commercial
practices, is not even mentioned in the recitals of the proposal.

infringement of

4.13
Committee, in areas such as:

The proposal should increase the duties of the Contact

— establishment of common rules for identifying the regula-

tory body responsible for audiovisual media services;

— establishment of common rules for informing viewers of the

existence of product placement and sponsorship;

— establishment of common rules for developing self-regu-

lation and co-regulation schemes;

Brussels, 14 September 2006.

— establishment of common rules for transmission by other
broadcasters of events or summaries thereof, which are of
general interest;

— establishment of common rules to enable citizens to exercise

their right of reply and correction.

Consumers' and viewers' organisations should be recognised as
having an active role in both self-regulation and co-regu-
lation (11).

The proposal should require all Member States to set up
4.14
regulatory authorities with powers in the fields covered by the
directive, establishing their independence, impartiality and trans-
parency in their membership and the implementation of their
duties, under the criteria of Recommendation 23(2000) of the
Council of Europe.

4.15
Lastly, it would be advisable for the proposal to include
measures to promote the accessibility of digital television and its
interactive content to people with disabilities, thus harnessing
the potential brought by technological convergence.

The President

of the European Economic and Social Committee

Anne-Marie SIGMUND

(11) Information report on the Current state of co-regulation and self-regu-

lation in the Single Market (Rapporteur: Mr Vever).

23.12.2006

EN

Official Journal of the European Union

C 318/209

APPENDIX

to the opinion of the European Economic and Social Committee

The following amendments were rejected but received at least a quarter of the votes cast:

Point 4.1

Amend as follows:

‘4.1 The EESC believes that the definition of “audiovisual commercial communication” proposed by the Commission
is too restrictive unclear, mechanically reproducing the definition of “audiovisual media services”. It seems logical to
define them as services identical in nature to scheduled broadcast television. “moving images with or without sound”,
making moving images a sine qua none for these audiovisual media services, and leaving the Internet-based press and
radio broadcasting outside the scope of the directive. However, as As the scope has been defined, audiovisual
commercial communications linked to audiovisual media services can use static images (e.g. logos or advertising
posters) or sounds on their own, without images (e.g. a spoken reference to a brand or an advertising jingle). It would
be preferable to define audiovisual commercial communication as “images and/or sounds accompanying audiovisual
media services designed to promote, whether directly or indirectly, the goods, services or image of a physical or legal
person for economic purposes”’

Reason

In this area it is difficult to draw clear lines. The definitions proposed in 4.1. are even wider than those of the draft Direc-
tive, and therefore add to the difficulty of clear implementation. In order not to hamper the development of the services
in question, the definitions should be as clear as possible, while serving the objectives of protecting minors and human
dignity, clearly identifying commercial communications, provide a right of reply and providing basic identification require-
ments.

Voting:

For: 32

Against: 40

Abstentions: 3

Point 4.2.1

To be deleted:

‘4.2.1 If the proposed criterion is maintained, the directive should allow Member States to empower courts (in the
event of civil or administrative proceedings) to demand that broadcasters prove that no payment has been received
for audiovisual communication, as indicated in Directive 84/850/EEC. Otherwise, this communication would be
presumed to be commercial in nature.’

Reason

The proposal that courts could demand the broadcaster to produce evidence that no payment has been received for audio-
visual communication would open up for an easy possibility of abuse. It is furthermore practically impossible for a broad-
caster to present proof of not having received payment.

Voting:

For: 35

Against: 40

Abstentions: 1