Opinion of the Committee of the Regions 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
Date: 2006-10-11
Institutions: European Committee of the Regions
Subjects: advertising, approximation of laws, audiovisual communications policy, broadcasting, child protection, consumer protection, control of communications, cultural pluralism

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Opinion of the Committee of the Regions on the Proposal for a Directive of the European Parlia-
ment 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

(2007/C 51/02)

THE COMMITTEE OF THE REGIONS

Having regard to 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));

Having regard to the Council decision of 7 February 2006 to request its opinion on this subject, under
Article 265(1) of the Treaty establishing the European Community;

Having regard to the decision of its President of 16 February 2006 to instruct the Commission for Culture,
Education and Research to draw up an opinion on this subject;

Having regard to Council Directive 89/552/EEC of 3 October 1989 on the coordination of certain provi-
sions laid down by law, regulation or administrative action in Member States concerning the pursuit of tele-
vision broadcasting activities, amended by Directive 97/36/EC of the European Parliament and of the
Council, 30 June 1997;

Having regard to its opinion on the Communication from the Commission to the Council, the European Parlia-
ment, the European Economic and Social Committee and the Committee of the Regions on the Future of European
Regulatory Audiovisual Policy (1) (CdR 67/2004 fin) (2);

Having regard to its opinion on the Fourth Report from the Commission on the application of Directive
89/553/EEC ‘Television Without Frontiers’ (3) (CdR 90/2003 fin) (4);

Having regard to the European Parliament resolution on ‘Television without Frontiers’ (2003/2033(INI));

Having regard to the fifth report from the Commission to the Council, the European Parliament, the Euro-
pean Economic and Social Committee and the Committee of the Regions on the application of Directive
89/552/EEC ‘Television without Frontiers’ (COM(2006) 49 final);

Having regard to the seventh communication from the Commission to the Council, the European Parlia-
ment, the European Economic and Social Committee and the Committee of the Regions 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 2003-2004 (COM(2006) 459 final);

Having regard to the communication from the Commission to the Council, the European Parliament, the
European Economic and Social Committee and the Committee of the Regions on reviewing the interoper-
ability of digital interactive television services pursuant to Communication COM(2004) 541 of 30 July 2004
(COM(2006) 37 final);

Having regard to the communication from the Commission to the Council, the European Parliament, the
European Economic and Social Committee and the Committee of the Regions ‘European electronic commu-
nications regulation and markets 2005 (11th report)’ (COM(2006) 68 final);

Having regard to the draft opinion adopted by the Commission for Culture, Education and Research on 20
June 2006 (CdR 106/2006 rev. 2), (Rapporteur: Mr Lambertz, First Minister of the Government of the
Belgian German-speaking community (BE/PES));

Whereas:

1)

Since the issue of the TVWF Directive in 1989 and its amendment in 1997 further technological
advances have been made. Digitalisation and media convergence in particular have made it essential
to adapt the current legal framework. In the future it will be possible to transmit digitalised communi-
cation messages using various mediums, thereby providing the recipients, through any terminal, with
a comprehensive information and entertainment service.

(1) COM(2003) 784 final.
(2) OJ C 318 of 22.12.2004, p. 30.
(3) COM(2002) 778 final.
(4) OJ C 256 of 24.10.2003, p. 85.

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2)

3)

4)

The law must therefore take this development into account in order to avoid distortions of competi-
tion between traditional television broadcasters and other media services. The Committee of the
Regions and the European Parliament have on more than once occasion expressed their support for
the adaptation of the current TVWF Directive to meet structural changes and technological develop-
ments and called for the introduction of basic rules for all media services.

Because of the central role played by audiovisual media in preserving cultural diversity and developing
a pluralistic society in Europe, the European legal framework must be adapted in a way that facilitates
and promotes its continued progress. Collectively, the media play a key role in preserving regional
and local cultural diversity and identity. Furthermore, the presence of regional und local media contri-
interest and frequently also to the spread of
butes to the dissemination of information of local
minority languages.

The range of electronic services with which users today are continually confronted in various ways
has changed the perception of commercial communication. It would therefore be a good idea to
adapt the quantitative restrictions on advertising in the amended Directive in as far as this is appro-
priate and timely. However, specific qualitative restrictions must guarantee the editorial and program-
ming independence of audiovisual media services, which is vital for the democratic development of
informed opinion at national and regional level. The interests of young people and consumer protec-
tion interests should also be properly taken into account here.

adopted the following opinion at its 66th plenary session, held on 11 and 12 October 2006
(meeting of 11 October):

1. Views of the Committee of the Regions

Having regard to the State of transmission principle

The Committee of the Regions

Having regard to the scope of the Directive

In view of

increasing convergence,

1.1 welcomes the proposal to extend the scope of the Direc-
tive.
it is appropriate to
subject all media services to certain minimum standards as
regards protection of minors and human dignity, to promote
European and independent works, and to entitle them to use
news extracts about events of public interest;

believes, however, that the Commission proposal does
1.2
not go far enough in this respect and holds the view that,
owing to the technical convergence, which increasingly is also
leading to convergence of content the TVWF Directive should
be developed in a way that makes it even more platform
neutral, covering all electronically disseminated information
using moving images;

recommends that media services

that use moving
1.3
images in addition to sound or text be subject to minimum
standards in the area of minor protection and human dignity
and not just to purely economic regulations such as the Direc-
tive on Electronic Commerce;

1.5 welcomes the fact that the Commission continues to
support the State of transmission principle; requests however
that the receiving Member State has more effective options for
dealing with a media service provider that directs its activities
exclusively or predominantly at the territory of another Member
State outside the State of transmission;

Having regard to the self-regulation mechanisms

1.6 welcomes the fact that the Commission supports the
introduction of self-regulation mechanisms and is calling on
Member States to promote regulation in this area;

1.7
recommends, however, that on grounds of competence,
it should stop at this. For reasons of cultural diversity and subsi-
diarity, the actual provisions for self-regulation mechanisms in
Member States and regions should not be spelt out;

Having regard to the right to use news extracts

Having regard to the graduated regulation

1.4
Given the various choices and control options which the
user has, regards the Commission's graduated regulation
between linear and non-linear audiovisual media services as
appropriate and recommends that all audiovisual media services
be subject to certain basic standards;

1.8
supports the fact that in the future there will be a right
to use news extracts, which aims to guarantee the flow of
information across borders and unrestricted access to informa-
tion. This will make a significant contribution to diversity of
opinion and also to the flow of information across borders
concerning significant events in other regions. This will also
bring regulation concerned with television even closer into line
with the relevant Council of Europe agreement;

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reiterates its recommendation that the right to use
1.9
news extracts must also be guaranteed in particular for opera-
tors broadcasting in minority languages;

Having regard to promoting European and independent productions

categorically welcomes the maintenance of

the
1.10
quota system to support European productions as
these
productions make a significant contribution to the preservation
and development of regional
identities; requests, however, a
stricter and more uniform application of this system;

1.11
regards as necessary the obligation on Member States
to ensure that providers of non-linear media services under
their jurisdiction also promote, where practicable and by appro-
priate means, production of and access to European and inde-
pendent works;

Having regard to rules on advertising

takes the view that

the rules
1.12
concerning product placements permitted for the first time by
the draft Directive goes too far and clearly poses a considerable
risk to editorial independence, even if the intention of Article
3h (1)(a) of the proposal is to rule out this possibility;

the relaxation of

is of the opinion that the provisions of Article 11 on
1.13
the gap between advertising breaks and Article 18 on the limita-
tion of advertising time per hour are no longer appropriate and
therefore suggests a greater liberalisation of the quantitative
rules on advertising for providers of linear services;

believes that, in the event of provisions being deleted,
1.14
a ban should be introduced,
in the interests of youth and
consumer protection, on advertisement breaks during children's
and news programmes;

1.15
recommends that, on practical grounds, exceptions be
permitted to the regulation stipulating that isolated advertising
spots must be the exception;

Having regard to the independence of national regulatory authorities

for

supports the proposals

1.16
independent national
regulatory authorities; believes, however, that in principle
the organisation of media supervision should remain a matter
for Member States and, where necessary, regions with jurisdic-
tion, especially when their public service broadcasting is orga-
nised on an internal and pluralistic basis.

2. Recommendations of the Committee of the Regions

Recommendation 1

Point 2, new version of Article 1(a)

Text proposed by the Commission

CoR Amendment

(2) Article 1 is replaced by the following:

(2) Article 1 is replaced by the following:

‘Article 1

‘Article 1

For the purpose of this Directive:

For the purpose of this Directive:

(a) “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 Council.’

(a) “audiovisual media service” means a service as
defined by Articles 49 and 50 of the Treaty the
principal purpose of which is, among other things,
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 Council,
including accompanying tele-
text. It does not cover gambling activities which
involve wagering a stake with monetary value in
including lotteries and betting
games of chance,
transactions.’

Reason

Because of the technical convergence, which increasingly is also leading to convergence of content, it is not
expedient to include only media services whose main purpose is to broadcast moving images with or
without sound. Rather, in order to ensure undistorted competition, it would be appropriate if all media
services that use moving images were subject to the minimum standards of Article 3 d-h). Reasons for this
include, first of all, the fact that the boundaries between media services whose principal purpose is to
provide moving images with or without sound and media services whose secondary purpose is also to
provide moving images with or without sound (electronic press or radio broadcast over the Internet, for
example) are becoming increasingly blurred. In addition,
it is unfair that media services that use both
moving images and sound or text equally or that focus on sound or text will not be subject to minimum
standards in the area of minor protection and human dignity but only to purely economic regulations such
as the Directive on Electronic Commerce.

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The directive should also cover teletext accompanying audiovisual media services. Teletext is already covered
by the directive currently in force. Therefore accompanying teletext should be explicitly mentioned in Article
1(a).

Because of the need to ensure public safety and order, prevent crime and protect consumers, the gambling
industry is unlike any normal economic activity. In accordance with the provisions of the eCommerce Direc-
tive it is therefore necessary to make it clear in the directive on audiovisual media services that its provisions
to facilitate cross-border activities do not apply to all games of chance. Games of chance are not expressly
mentioned in the directive on audiovisual media services; however, it is not to be ruled out that gambling
services may be covered by the directive through the intended extension of its scope to include non-linear
audiovisual media services. Article 1(a) should therefore include a passage incorporating the wording of
Article 1(5) of the eCommerce Directive, which lists exceptions that do not come under the directive's
scope.

Recommendation 2

Point 2, new wording of Article 1(c)

Text proposed by the Commission

CoR Amendment

Article 1(c)

Article 1 c)

‘c)

“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;’

‘c)

“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 estab-
lishes the programme schedule; “linear service” (i.e.
television broadcast): an audio-visual media service,
which exists in the unencrypted or coded transmission
for an indefinite number of
of TV programmes
possible viewers,
to whom the same pictures are
conveyed or transferred at the same time irrespective
of the technology used for the picture transmission.’

Reason

A more precise definition of the term ‘linear service’ is possible by using the statements of the ECJ on the
term ‘television programme’ in its Mediakabel Judgment. In addition, in order to draw a better distinction
between the terms ‘linear’ and ‘non-linear service’, use should be made of the examples mentioned by the
EU Commission in the explanatory statement of the draft directive itself (see point 5 of the executive
summary in document COM 2005/646) and the examples of delimitation given in the recitals to its non-
paper of February 2006

Recommendation 3

Point 2, new wording for Article 1(h)

Text proposed by the Commission

CoR Amendment

Article 1(h)

Articles 1(h)

‘h) “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 repre-
sentation is intended by the broadcaster to serve adver-
tising 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;’

‘h) “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 repre-
sentation is intended by the broadcaster provider of an
audio-visual media service to serve advertising and
might mislead the public as to its nature. Such represen-
tation is considered to be intentional in particular if it is
done in return for payment or for similar consideration
or if an article, a service, a name, a trade mark or an
activity are inadmissibly emphasised. An emphasis is
inadmissible, if it is not justified by the editorial require-
ments of the programme, in particular for the represen-
tation of real life;’

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Reason

In accordance with the extension of scope, the prohibition of surreptitious advertising should also apply to
all providers of audio-visual media services, and not just to television broadcasters/ linear services. The word
‘broadcasters’ in Article 1(h) should thus be replaced by ‘provider of an audio-visual media service’.

The definition of prohibited surreptitious advertising in Article 1(h) should be made clearer by referring to
point 33 of the interpreting communication of the European Commission on television advertising (charac-
teristic of inadmissible emphasis). In this way, by expanding Article 3(h)(1), the strict conditions under
which the supply of products for audio-visual productions is permissible will be described exactly.

Recommendation 4

Point 4, add a new paragraph c

Text proposed by the Commission

CoR Amendment

c) The following paragraph 4 is inserted into Article 2a:

‘In the case of non-linear services Member States can
take measures under Article 3(3)-(5) and Article 12(3) of
Directive 2000/31/EC of the European Parliament and
of the Council (eCommerce Directive).’

Reason

The Committee of the Regions supports the country of origin principle as the basic principle of the direc-
tive. However, the Member States should also have the possibility of preventing the transmission of e.g. far
right views. The Member State could act against such views in linear services on the basis of Article 2a(2)(a),
but with non-linear services a regulatory loophole would develop, since the previous possibilities for action
on the basis of the eCommerce Directive would be superseded by the directive on audio-visual media
services. Therefore the Member States should be allowed the possibility of applying bans to non-linear
services on the basis of the eCommerce Directive, as before. In this regard an express reference should be
made in a new Article 2a(4), to the effect that the Member States may take action against non-linear services
in accordance with Article 3(3) to (5) and Article 12(3) of the eCommerce Directive.

Recommendation 5

Point 5, new wording of Article 3(3)

Text proposed by the Commission

CoR Amendment

Article 3(3)

Article 3(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 stake-
holders and provide for effective enforcement.

Member States shall encourage systems for self-regulation
and co-regulationory to implement and enforce the provi-
sions of this Directiveregimes in the fields coordinated by
this Directive. These systemsregimes shall be such that they
are broadly accepted by the main stakeholders in each
Member State and provide for effective enforcement.

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Reason

Implementation of the Directive by means of self-regulation and co-regulation should continue to be
possible. Therefore, the Directive's provisions, and possibly also the recitals, must make clear that self-regu-
lation is possible, as long as the state retains ultimate responsibility and has adequate means of intervention.
Moreover, it should be made clear that the phrase ‘broadly accepted’ relates to general acceptance at Member
State level, and not Community level.

Recommendation 6

Point 6, modification of Article 3b

Text proposed by the Commission

CoR Amendment

‘Article 3b

‘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, reason-
able and non-discriminatory basis to events of high interest
to the public which are transmitted by a broadcaster under
their jurisdiction.

Member States shall ensure that, for the purposes of
1.
short news
reports, broadcasters established in other
Member States or whose programmes are broadcast in a
minority language 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 broad-
caster 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.’

least

2.
Short news reports may be chosen freely by the
broadcasters from the transmitting broadcaster's signal with
at
their source. Alternatively,
broadcasters themselves can be granted access to the event
transmission in accordance with
for
Member State law.’

the identification of

the purpose of

Reason

It is crucial for the sake of regional and cultural diversity that domestic television operators broadcasting in
a minority language also have access to events of major public interest. This puts them on an equal footing
with television broadcasters based in another Member State.

From the point of view of diversity of opinion, granting right of access merely to an existing signal seems
insufficient. The Directive should, instead, allow the Member State to decide whether the right to broadcast
short news reports should be granted in the form of a physical right of access, or, simply, by providing
access to the signal. Art. 3b(2) should, therefore, also include the right to physical access, in accordance with
the laws of each Member State.

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Recommendation 7

Point 6, modification of Article 3e

Text proposed by the Commission

Article 3e

CoR Amendment

Article 3e

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

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

Reason

In the interest of a unified standard of protection the text should be harmonised with the primary law provi-
sions, namely Art. 13 of the EC Treaty. Moreover, protection of the paramount value of human dignity, as
set out in Art.1 of the Charter of Fundamental Rights of the European Union, should definitely not be left
out.

Recommendation 8

Point 6, insertion of Article 3h

Text proposed by the Commission

‘Article 3h

CoR Amendment

‘Article 3h

Audiovisual media services that are sponsored or that
following

1.
contain product placement
requirements:

shall meet

the

1.
Audiovisual media services that are sponsored or that
contain product placement shall meet the following require-
ments:

(…)

(…)

(c) 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
the sponsor such as a reference to its
symbol of
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.

(…)

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.’

(c) 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
the sponsor such as a reference to its
symbol of
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
clearly identified at the start, during and also at the end
of the programme in order to avoid any confusion on
the part of the viewer.

(…)

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. Product placements are permitted only in cine-
matographic works, films made for television and entertain-
ment series not intended for children.’

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Reason

In contrast to existing legislation, the draft Directive for the first time allows product placements to be
included among audiovisual forms of commercial communication. This relaxation of what were originally
strict requirements for the separation of advertisements and programmes goes too far. The risk that this
poses for programme autonomy and editorial independence has not been sufficiently taken into account.
The proposed Directive does rule out product placements for certain programmes, but this only applies to
news programmes, current affairs programmes, children's and documentary films. This means that product
placements are permitted, for example, in programmes about consumer protection or programmes that
provide information on travel or particular products. The risks associated with this also cannot be ruled out
by Article 3 h (1)(a) of the proposal. Past experience has shown that those who use product placements in a
programme also have an influence on the design of this programme. On the other hand, it cannot be
denied that traditional advertising has reached its limits and that for some time now there have been
product placements on a large scale in certain formats, feature films for example. For this reason, a limited
form of product placement in cinematographic works and films made for television is recommended. Films
produced in the USA, for example, already regularly feature product placements.

In return for a partial authorisation of product placements, the provisions in Article 3 (1) (c) of the Commis-
sion proposal governing the identification of programmes containing such placements should be tightened by
stipulating the continuous identification of the programmes in question so as to inform viewers who watch
only part of the programme about the advertising practices being used. Under these circumstances it is then
also possible to authorise product placing in entertainment series, too, provided they are not intended for
children.

Recommendation 9

Point 10, new version of Article 11

Text proposed by the Commission

CoR Amendment

(10) Article 11 is replaced by the following:

(10) Article 11 is replaced by the following:

‘Article 11

‘Article 11

series,

The transmission of films made for television
2.
(excluding
entertainment
serials,
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.

light

series,

serials,
light
and documentaries),

The transmission of films made for television
2.
entertainment
(excluding
programmes
and cinemato-
children's programmes and news
graphic works,
programmes may be interrupted by advertising and/or
teleshopping once for each period of 3530 minutes.

No advertising or
during religious services.’

teleshopping may be inserted

No advertising or
teleshopping may be inserted
during religious services, children's programmes and
news programmes.’

Reason

The proposed easing of the restrictions would give media service-providers greater flexibility in designing
their programmes. However, it is essential to amend the Commission proposal by including a ban on adver-
tising spots in children's and news programmes as well. In the case of children's programmes, a ban has
been proposed for the sake of the protection of minors, as children are still not able to properly distinguish
advertising from programmes or to evaluate advertising messages. A ban has also been proposed during
news programmes because of their special role in the development of independent thought.

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Recommendation 10

Point 20, modification of Article 23b

Text proposed by the Commission

CoR Amendment

(20) The following Article 23b is inserted:

(20) The following Article 23b is inserted:

‘Article 23 b

‘Article 23 b

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

National

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

1. Without prejudice to their regulations on public-
service media service providers, Member States shall
guarantee the independence of national and, where
they exist, regional regulatory authorities and ensure
that they exercise their powers impartially and trans-
parently.

National

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

Reason

Although the independence of national regulatory authorities is of fundamental importance and should be
welcomed, the organisation of media supervision must remain a matter for Member States and, where neces-
sary, regions with jurisdiction. Furthermore, Article 23 b must not affect the position of public-service
broadcasting and stipulate external regulation of all broadcasters. This is especially important for the various
Member States and regions which, under their constitution, organise public service broadcasting on an
internal and pluralistic basis, regulate it internally in other words, and subject it to only limited legal supervi-
sion by the state.

The guarantee of impartiality and transparency should also be extended to any regional regulatory authori-
ties that are or could be established in regions with legislative powers in the field of communications, or in
Member States with forms of federalism or autonomous communities. This does not affect the powers of
the national authorities; it aims merely to extend the same guarantees of impartiality and transparency to
the local level, in compliance with the principle of subsidiarity as enshrined in the Maastricht Treaty.

Brussels, 11 October 2006.

The President

of the Committee of the Regions

Michel DELEBARRE