Amended 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 ("Audiovisual media services without frontiers")
Date: 2007-03-29
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, 29.03.2007 
COM(2007) 170 final 

2005/0260 (COD) 

Amended 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 
("Audiovisual media services without frontiers") 

(presented by the Commission) 

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2005/0260 (COD) 

Amended 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 
("Audiovisual media services without frontiers") 

1. 

BACKGROUND 

Transmission of the Proposal to the Council and the European  
Parliament Ref. COM (2005)646 - 2005/0260(COD) 

15 December 2005 

Opinion of the European Economic and Social Committee 

13 September 2006 

Opinion of the Committee of Regions 

11 October 2006 

Opinion of the European Parliament - first reading 

13 December 2006 

2. 

OBJECTIVE OF THE COMMISSION PROPOSAL 

The  aim  of  the  proposal  is  to  deepen  the  internal  market  for  non-linear/on-demand 
audiovisual  services  (minimum  harmonisation  with  regard  to  protection  of  minors,  hate 
speech,  commercial  communication)  on  the  basis  of  the  country-of-establishment  principle 
and to modernize the rules, especially advertising rules, for linear/broadcast services. 

3. 

COMMISSION OPINION ON THE AMENDMENTS ADOPTED BY THE PARLIAMENT 

3.1. 

Amendments accepted by the Commission 

The  Commission  can  accept  a  number  of  Amendments  that  are  consistent  with  the 
Commissions'  proposal  and  also  in  line  with  Council's  General  Approach  of  13  November 
2006. For these reasons the Commission can accept the following adopted amendments in 
full: 

6, 11, 12, 14, 16, 20, 25, 30, 32, 41, 42, 43, 49, 56, 62, 67, 78, 79, 81, 84, 85, 89-92, 99, 115, 
117, 120-125, 133, 138, 144, 1991, 213, 221, 222, 224, 226. 

1 The split vote on Amendment 199, which the Commission originally rejected, meant that Amendment 215 fell, 
but nevertheless led to the adoption of an Amendment which is identical to Amendment 215which the 
Commission had accepted.  

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3.2. 

Amendments accepted in part or principle by the Commission 

Recitals: 

With regard to the Recitals the Commission can accept the following Amendments subject to 
rewording. These changes are mostly consequential to the changes in the operative part and 
intend to simplify the Amendments and make them more consistent: 

Amendment 1 (Recital 1): 

"(1)  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, the 
spread  of 
technological 
developments on business models, especially the financing of commercial broadcasting, and 
to ensure optimal conditions of competitiveness and legal certainty for Europe’s information 
technologies  and  its  media  industries  and  services,  as  well  as  respect  for  cultural  and 
linguistic diversity." 

information  and  communication 

technologies 

(ICT)  and 

Amendment 3 (Recital 3): 

"(3) Audiovisual media services are as much cultural services as they are economic services. 
Their  growing  importance  for  societies,  democracy  –  in  particular  by  ensuring  freedom  of 
information,  diversity  of  opinion  and  media  pluralism  –  education  and  culture  justifies  the 
application of specific rules to these services." 

Amendment 4 (Recital 3a): 

"In its resolutions of 1 December 2005, 4 April and 27 April 2006 the European Parliament 
has  underlined  the  international  dimension  of  audiovisual  services  and  the  fact  that  cultural 
activities, goods and services have both an economic and a cultural nature." 

Amendment 7 (Recital 5): 

"(5) The basic principles of Directive 89/552/EEC, namely the transmitting state principle and 
common minimum standards, have proved their worth and should therefore be retained. But 
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,  in  order  to  avoid  distortions  of  competition,  to  improve 
legal certainty, to help complete the internal market and to facilitate the emergence of a single 
information  area,  to  apply  to  all  audiovisual  media  services,  both  linear  and  non-linear,  a 
basic tier of coordinated rules." 

Amendment 8 (Recital 6): 

"(6)  The  Commission  has  adopted  a  Communication  on  the  future  of  European  regulatory 
audiovisual  policy,  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 importance of 
media  pluralism,  the  protection  of  minors  and  consumer  protection  and  action  to  enhance 
media skills." 

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Amendment 10 (Recital 6b)2: 

"(6a) The country of origin principle is crucial to the emergence and further development of a 
pan-European  audiovisual  market  with  a  strong  industry  producing  European  content. 
Moreover,  the  principle  safeguards  the  viewer's  rights  to  choose  from  a  wide  variety  of 
European programmes, and thus contributes to media pluralism." 

Amendment 13 and Amendment 1103 (Recital 9): 

"(9) This Directive enhances compliance with fundamental rights and is fully in line with the 
principles,  rights  and  freedoms  laid  down  in  the  Charter  of  Fundamental  Rights  of  the 
European Union, in particular Article 11 thereof. In this context, Member States should set up 
independent  regulatory  authorities  in  the  fields  covered  by  this  Directive,  if  they  have  not 
already  done  so.  Member  States  may  decide  whether  it  is  appropriate  to  have  a  single 
regulatory authority for all audiovisual media services or several separate authorities for each 
category  of  service  (linear  or  non-linear).  Furthermore,  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." 

Amendment 17 (Recital 12): 

"(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  audiovisual  media 
service." 

Amendment 18 (Recital 13): 

"(13)  The  definition  of  audiovisual  media  services  covers  only  audiovisual  media  services, 
whether  scheduled  or  on-demand,  which  are  mass  media,  that  is,  which  are  intended  for 
reception by, and which could have a clear impact on, a significant proportion of the general 
public.  Audiovisual  media  services  are  made  up  of  programmes.  Examples  of  programmes 
include  feature-length  films,  sports  events,  situation  comedy,  documentary,  children's 
programmes and original drama. The 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  activities  which  are  primarily  non-economic  and  which  are  not  in 
competition with television broadcasting, such as private websites and services consisting of 
the provision or distribution of audiovisual content generated by private users for the purposes 
of sharing and exchange within communities of interest. The definition 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." 

Amendment 23 (Recital 16): 

"(16) For the purposes of this Directive, the term “audiovisual” refers to moving images with 
or  without  sound,  so  includes  silent  films  but  does  not  cover  audio  transmission,  radio 
services  or  stand-alone  text-based  services  In  the  context  of  television  broadcasting,  the 
notion  of  simultaneous  viewing  also  entails  quasi  simultaneous  viewing  because  of  the 

2 Accepted in principle only because the original numbering was not correct. 
3  The  reference  to  the  Charter  was  proposed  by  the  EP  in  the  operative  part  and  therefore  accepted  only  in 

principle. 

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variations in the short timelag which occurs between the transmission and the reception of the 
broadcast due to technical reasons inherent in the transmission process." 

Amendment 27 (Recital 17b): 

"(17a)  The  criteria  laid  down  in  the  definition  of  audiovisual  media  services,  as  set  out  in 
Article  1(a)  of  Directive  89/552/EEC  and  expanded  in  Recitals  13  to  17  of  this  Directive, 
must all be fulfilled at the same time." 

Amendment 28 (Recital 18): 

"(18)  In  addition  to  advertising  and  teleshopping,  the  wider  definition  of  audiovisual 
commercial communication is introduced. It comprises images with or without sound which 
are  transmitted  as  part  of  an  audiovisual  media  service,  form  part  of  or  accompany 
programmes and are designed to promote, directly or indirectly, the goods, services or image 
of  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." 

Amendment 33 (Recital 23): 

"(23)  Member  States  must  be  able  to  apply  stricter  rules  in  the  fields  coordinated  by  this 
Directive to media service providers under their jurisdiction, while ensuring that those rules 
are  consistent  with  Community  Law.  To  prevent  abuse  and  fraudulent  conduct,  the 
codification of the case law of the European Court of Justice, 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." 

Amendment 34 (Recital 23a): 

"(23a)  In  order  for  a  Member  State  to  argue  on  a  case-by-case  basis  that  a  broadcast  by  a 
media  service  provider  established  in  another  Member  State  is  wholly  or  mostly  directed 
towards  its  territory,  that  Member  State  may  cite  indicators  such  as  the  origin  of  the 
advertising and/or subscription revenues, the main language of the service or the existence of 
programmes or commercial communications targeted specifically at the public in the Member 
State where they are received. In addition, in the context of the circumvention procedure, that 
Member  State  has  to  prove  the  abuse  or  fraudulent  conduct  of  the  media  service  provider 
established in the other Member State." 

Amendment 35 (Recital 24): 

"(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 or non-linear audiovisual media services, but only under certain conditions listed 
in  Article  2a  of  this  Directive  and  following  the  procedures  laid  down  in  this  Directive. 
However,  the  European  Court  of  Justice  has  consistently  held  that  any  restriction  of  the 
freedom  to  provide  services,  such  as  any  derogation  from  a  fundamental  principle  of  the 
Treaty, must be interpreted restrictively. With respect to non-linear audiovisual services, the 
possibility of taking measures under Article 2a of Directive 89/552/EEC replaces the possible 
measures which could have hitherto been taken by the Member State concerned as set out in 
Article  3(4)  and/or  Article  12  (3)  of  Directive  2000/31/EC  within  the  area  coordinated  by 
Articles 3d and 3e of Directive 89/552/EEC." 

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Amendment 36 (Recital 25): 

"(25) In its Communication to the Council and the European Parliament on Better Regulation 
for Growth and Jobs in the European Union 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.  Furthermore,  experience  showed  that  both  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. Measures aimed at 
achieving public interest objectives in the emerging audiovisual media services sector will be 
more effective if they are taken with the active support of the service providers themselves. 
Thus  self  regulation  constitutes  a  type  of  voluntary  initiative,  which  enables  the  economic 
operators,  social  partners,  non-governmental  organisations  or  associations  to  adopt  common 
guidelines amongst themselves and for themselves. Member States should, in accordance with 
their different legal traditions, recognise the role which effective self-regulation can play as a 
complement to the legislation and judicial and/or administrative mechanisms in place and its 
useful  contribution  to  the  achievement  of  the  objectives  of  this  Directive.  However,  while 
self-regulation might be a complementary method of implementing certain provisions of this 
Directive,  it  cannot  constitute  a  substitute  for  the  obligation  of  the  national  legislator.  Co-
regulation gives, in its minimal form, a "legal link" between self-regulation and the national 
legislator in accordance with the legal traditions of the Member States." 

Amendment 39 (Recital 26a): 

"(26a) Media literacy refers to skills, knowledge and understanding that allow consumers to 
use  media  effectively  and  safely.  Media-literate  people  will  be  able  to  exercise  informed 
choices, understand the nature of content and services and take advantage of the full range of 
opportunities  offered  by  new  communications  technologies.  They  will  be  better  able  to 
protect  themselves  and  their  families  from  harmful  or  offensive  material.  Therefore 
development of media literacy in all sections of society should be promoted and monitored." 

Amendment 218 (Recital 27): 

"(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 high public interest must 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 programmes 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. Broadcasters may freely choose short extract from the 
transmitting broadcasters' signal with, unless impossible for reasons of practicality, at least the 
identification  of  their  source.  Such  short  extracts  should  not  exceed  90  seconds  and  be 
transmitted before the event concludes, or for sports events before the end of a single day's 
play - whichever is the sooner. 

These provisions shall apply without prejudice to the obligation of individual broadcasters to 
respect the relevant community legislation and international conventions regarding copyright. 

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Typically,  Member  States  shall  facilitate  access  to  events  by  granting  access  to  the 
broadcaster's signal. However, they may choose other equivalent means. Such means include, 
inter alia, granting access to the venue of these events. 

The right to trans-frontier news access should apply only where it is necessary; accordingly, if 
another  broadcaster  in  the  same  Member  State has  acquired  exclusive  rights  to  the  event  in 
question, access must be sought from that broadcaster." 

Amendment 46 (Recital 32): 

"(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,  such  as  PIN  codes  (personal 
identification  numbers)  or  labelling,  should  however  be  to  ensure  an  adequate  level  of 
protection  of  minors  and  human  dignity,  especially  with  regard  to  non-linear  services,  by 
means of an obligation to clearly draw attention to the specific nature of certain programmes 
before they are transmitted and in accordance both with Article 1 and Art 24 of the Charter of 
Fundamental Rights of the European Union." 

Amendment 104[Art 3d (1d)] as new Recital 32 a: 

"(32a)  Audiovisual  media  service  providers  under  the  jurisdiction  of  one  of  the  Member 
States will in any case be subject to criminal law provision banning the dissemination of child 
pornography." 

Amendment 214 (Recital 35) 

"(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. Such 
support  for  European  works  might,  for  example,  take  the  form  of  a  minimum  share  of 
European  works  proportionate  to  economic  performance,  a  minimum  share  of  European 
works  in  video-on-demand  catalogues,  or  the  attractive  presentation  of  European  works  in 
electronic programme guides. 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." 

Amendment 57 (Recital 41): 

"(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 

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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/EC  which  prohibits  advertising  to  the  general  public  of  certain  medicinal  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. Furthermore, this 
Directive  is  without  prejudice  to  Regulation  .../...  of  the  European  Parliament  and  of  the 
Council on nutrition and health claims made on foods." 

Amendment 58 (Recital 42): 

"(42) Given the increased use of new technologies such as personal video recorders and the 
increased  choice  of  channels,  detailed  regulation  with  regard  to  the  insertion  of  spot 
advertising  with  the  aim  of  protecting  viewers  is  no  longer  justified.  This  Directive  gives 
flexibility to broadcasters with regard to its insertion where this does not unduly impede the 
integrity of programmes." 

Amendment 219 (Recital 46): 

"(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. It is useful to have a positive list which authorises product 
placement in the types of content whose paramount function is not to influence opinion and in 
cases in which no - or only negligible - consideration is provided in return. The definition of 
product placement 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.  It  should, 
furthermore, meet specific requirements. The editorial responsibility and independence of the 
media service provider must not be jeopardised. In particular, the way the product is included 
in  the  programme  must  not  create  the  impression  that  the  product  is  endorsed  by  the 
programme or its presenters. Furthermore, the product must not be given ‘undue prominence’. 
This means prominence which is not justified by the editorial requirements of the programme, 
or  the  need  to  lend  verisimilitude.  The  decisive  criterion  distinguishing  sponsorship  and 
product placement is the fact that in product placement the reference to a product is built into 
the  action  of  a  programme.  Sponsor  references  in  contrast  may  be  shown  during  the 
programme but are not part of the plot." 

Amendment 63 (Recital 47): 

"(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  between  competent  national 
authorities  and  the  Commission  is  necessary  to  ensure  the  correct  application  of  this 
Directive. Similarly, close cooperation between Member States and between Member States' 
regulatory  authorities  is  particularly  important  with  regard  to  the  impact  that  broadcasters 
established  in  one  Member  State  might  have  in  another  Member  State.  In  the  case  that 
licensing procedures are provided for in national law and if more than one Member State is 
concerned,  it  is  desirable  that  contacts  between  the  respective  authorities  take  place  before 

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licences  are  granted.  This  cooperation  should  cover  all  the  fields  coordinated  by  Directive 
89/552/EEC and in particular Articles 2, 2a and 3 thereof." 

Amendment 64 (Recital 47a): 

"(47a)  Cultural  diversity,  freedom  of  expression  and  media  pluralism  are  some  important 
aspects  of  the  European  audiovisual  sector  and  are  preconditions  for  democracy  and 
diversity." 

Amendment 65 (Recital 47b): 

"(47b) The right of persons with a disability and the elderly to participate and integrate in the 
social and cultural life of the community is inextricably linked to the provision of accessible 
audiovisual  media  services.  The  accessibility  of  audiovisual  media  services  includes,  but  is 
not restricted to, sign language, subtitling, audio-description and easily understandable menu 
navigation." 

Operative Part: 

With regard to the definitions in Article 1 the Commission can accept: 

Amendment 66 subject to the following rewording: "(a) ‘audiovisual media service’ means a 
service  as  defined  by  Articles  49  and  50  of  the  Treaty  which  is  under  the  editorial 
responsibility of a media service provider and the principal purpose of which is the provision 
of  programmes  in  order  to  inform,  entertain  or  educate  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. 

Such audiovisual media services are either television broadcasts as defined in paragraph (c) of 
this  Article  or  on-demand  services  as  defined  in  paragraph  (e)  of  this  Article  and/or 
audiovisual commercial communication;" The last sentence of the Amendment is deleted as 
the  criterion  of  "principal  purpose"  already  excludes  electronic  versions  of  newspapers  and 
magazines from the scope of the Directive as clearly stated in Recital 15. 

Amendment  68  subject  to  the  following  rewording:  "(c)  ‘television  broadcasting’  or 
‘television  broadcast’  (i.e.  a  linear  audiovisual  media  service)  means  an  audiovisual  media 
service provided by a media service provider for simultaneous viewing of programmes on the 
basis of a programme schedule;" 

Amendment  205  subject  to  the  following  rewording:  "(e)  'on-demand  service'  (i.e.  a  non-
linear  audiovisual  media  service)  means  an  audiovisual  media  service  provided  by  a  media 
service  provider  for  the  viewing  of  programmes  at  the  moment  chosen  by  the  user  and  at 
his/her  individual  request  on  the  basis  of  a  catalogue  of  programmes  selected  by  the  media 
service provider;" 

to 

Amendment  70  subject 
the  following  rewording:  "(f)  ‘audiovisual  commercial 
communication’ means images with or without sound which are designed to promote, directly 
or indirectly, the goods, services or image of a natural or legal entity pursuing an economic 
activity. Such images accompany or are included in a programme in return for payment or for 
similar  consideration  or  for  self-promotional  purposes.  Forms  of  audiovisual  commercial 
communication  include,  inter  alia,  television  advertising,  sponsorship,  teleshopping  and 
product placement;" 

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Amendment  71  subject  to  the  following  rewording:  "(h)  ‘surreptitious  audiovisual 
commercial communication' 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 media service provider to serve as 
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;" 

Amendment 73 subject to the following rewording: "(i) ‘sponsorship' means any contribution 
made  by  a  public  or  private  undertaking  or  natural  person  not  engaged  in  providing 
audiovisual  media  services  or  in  the  production  of  audio-visual  works,  to  the  financing  of 
audiovisual media services or programmes with a view to promoting its name, its trade mark, 
its image, its activities or its products;" 

Amendment 77 subject to the following rewording: "(aa) 'programme' means a set of moving 
images with or without sound constituting an individual item within a schedule or a catalogue 
established  by  a  media  service  provider  and  whose  form  and  content  is  comparable  to  the 
form and content of television broadcasting;" 

Amendment 137 proposes to enshrine in Art 6 of the Directive a definition which is already 
mentioned  in  Recital  36  of  Directive  97/36.  The  Commission  can  in  principle  accept  this 
definition in Art 1 subject to the following rewording: "(2) In defining the term 'independent 
producer’, Member States shall take account notably of the ownership and proprietary rights 
of the production firm and of the number of programmes provided to the same broadcaster." 

The  changes  to  the  definitions  are  made  to  better  align  the  Amendments  with  Council's 
General Approach. 

With regard to the procedure according to Article 2a of the Directive the Commission can 
accept in principle Amendment 82 subject to the following rewording:  

"2. Member States may, provisionally, derogate from paragraph 1 if the following conditions 
are fulfilled: 

(a)  an  audiovisual  media  service  coming  from  another  Member  State  manifestly,  seriously 
and gravely infringes Article 22 (1) or (2), Article 3d, or Article 3e; 

(b) during the previous 12 months, the media service provider has infringed the provision(s) 
referred to in (a) on at least two prior occasions; 

(c)  the  Member  State  concerned  has  notified,  in  writing,  the  media  service  provider,  the 
Member State in which it is established and the Commission of the alleged infringements and 
of the measures it intends to take should any such infringement occur again; 

(d)  consultations  with  the  Member  State  of  establishment  and  the  Commission  have  not 
produced an amicable settlement within 15 days of the notification provided for in (c), and the 
alleged infringement persists. 

The Commission shall, within two months following notification of the measures taken by the 
Member State, take a decision on whether the measures are compatible with Community law. 
If it decides that they are not, the Member State will be required to put an end to the measures 
in question as a matter of urgency." 

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With  regard  to  the  procedure  in  Art  3(1)  the  Commission  can  accept  in  part  Amendment 
220 subject to the following rewording:  

"(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, provided that such rules are in compliance with Community Law."  

With regard to short reporting [Art 3b] the Commission can accept in principle: 

Amendment 223 subject to the following rewording:  

"(1) Member States  shall ensure that  for  the  purpose of  short news reports, any broadcaster 
established in the Community has access on a fair, reasonable and non-discriminatory basis to 
events  of  high  interest  to  the  public  which  are  transmitted  on  an  exclusive  basis  by  a 
broadcaster under their jurisdiction."  

Amendment  97  subject  to  the  following  rewording:  "(3)Without  prejudice  to  the  other 
paragraphs of this Article, Member States shall ensure, in accordance with their legal systems 
and practices, that the modalities and conditions regarding the use of such short extracts are 
reasonably defined, in particular any compensation arrangements." 

Amendment 98 subject to the following rewording: 

"(4)  As  an  alternative  to  paragraph  2,  a  Member  State  may  establish  an  equivalent  system 
which  achieves  access  on  a  fair,  reasonable  and  non-discriminatory  basis  through  other 
means." 

With regard to the basic tier provisions the Commission can accept: 

In  order  to  better  align  the  Amendment  with  Council's  General  Approach  (Article  3b),  the 
Commission can accept in principle Amendment 107 subject to the following rewording:  

"Article 3e 

Member States shall ensure by appropriate means that audiovisual media services provided by 
providers under their jurisdiction do not contain any incitement to hatred based on race, sex, 
religion or nationality." 

Concerning the promotion of European production the Commission can accept in principle: 

Amendment 108 subject to the following rewording: 

"Article 3f 

"(1) Member States shall ensure that on-demand services provided by media service providers 
under their jurisdiction promote, where practicable and by appropriate means, production of 
and  access  to  European  works.  Such  promotion  could  relate,  inter  alia,  to  the  financial 
contribution  made  by  such  services  to  the  production  and  rights  acquisition  of  European 
works or to the share and/or prominence of European works in the catalogue of programmes 
proposed by the service." 

Amendment 109 subject to the following rewording: 

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"(4) The Commission shall, on the basis of the information provided by Member States and of 
an independent study, report to the European Parliament and the Council on the application of 
paragraph 1, taking into account the market and technological developments and the objective 
of cultural diversity." 

With regard to Commercial Communication the Commission can accept: 

Amendments 114 and 225 concerning Art 3g subject to the following rewording: 

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

audiovisual commercial communications must be readily recognizable as such and be 
(a) 
distinguishable  from  editorial  content.  Surreptitious  audiovisual  commercial  communication 
shall be prohibited.  

(b) 

audiovisual commercial communications must not use subliminal techniques; 

(c) 

audiovisual commercial communications must not: 

(i) 

prejudice respect for human dignity 

(ii) 

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

(iii)  be offensive to religious or political beliefs; 

(iv)  encourage behaviour prejudicial to health or to safety; 

(v) 

encourage behaviour grossly prejudicial to the protection of the environment;  

all forms of audiovisual commercial communications for cigarettes and other tobacco 

(d) 
products shall be prohibited;  

audiovisual  commercial  communications  for  alcoholic  beverages  must  not  be  aimed 

(e) 
specifically at minors and may not encourage immoderate consumption of such beverages; 

(f) 
audiovisual commercial communication for medicinal products and medical treatment 
available  only  on  prescription  in  the  Member  State  within  whose  jurisdiction  the  media 
service provider falls shall be prohibited; 

(g) 
audiovisual commercial communications must not cause moral or physical detriment 
to minors. Therefore they shall not directly exhort minors to buy or hire 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; 

(2)  Member  States  and  the  Commission  should  encourage  audiovisual  service  providers  to 
develop a code of conduct regarding children's programming containing or being interrupted 
by advertising, sponsorship or any marketing of unhealthy and inappropriate foods and drinks 
such as those high in fat, sugar and salt and of alcoholic beverages." 

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Concerning product placement (Art 3i) the Commission can accept: 

Amendments 227 subject to the following rewording: 

"(1) Product placement shall be prohibited.  

(2) By way of derogation from paragraph 1, unless Member States decide otherwise, product 
placement shall be admissible in  

–  cinematographic  works,  films  and  series  made  for  audiovisual  media  services,  light 

entertainment and sports programmes; or 

–  in cases where no payment is made but certain goods or services are merely provided free 

of charge. 

The derogation in the first indent shall not apply to programmes for children. 

(3)  The  programmes  that  contain  product  placement  shall  meet  at  least  all  of  the  following 
requirements: 

their content and, in the case of television broadcasting, their scheduling, shall 
(a) 
in no  circumstances  be influenced  in  such a way as to affect the responsibility  and 
editorial independence of the media service provider; 

they shall not directly encourage the purchase or rental of goods or services, in 

(b) 
particular by making special promotional references to those goods or services;  

(c) 

they shall not give undue prominence to the product in question; 

(d) 
viewers shall be informed of the existence of product placement. Programmes 
containing product placement shall be appropriately identified at the start and the end 
of  the  programme,  and  when  a  programme  resumes  after  an  advertising  break,  in 
order to avoid any confusion on the part of the viewer. 

In cases where the payment or similar consideration for the product placement has not 
been  paid  to  the  media  service  provider,  Member  States  may  choose  to  waive  the 
requirements set out in (d) above.  

(4) In any case programmes must not contain product 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; or 

- specific medicinal products or  medical treatments available only on prescription in 

the Member State within whose jurisdiction the media service provider falls. 

The  provisions  of  this  Article  apply  only  to  programmes  produced  after  [date: 

(5) 
transposition deadline for the Directive]." 

Concerning accessibility issues the Commission can accept Amendments 135 subject to the 
following rewording:  

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"Article 3j 

(1)  The  Member  States  shall  take  appropriate  measures  to  ensure  that  audio-visual  media 
services  under  their  jurisdiction  are  gradually  and  where  feasible  made  accessible  to  people 
with a visual or hearing disability. 

(2) In its report according to Article 26 the Commission shall also describe the progress made 
in achieving the objectives of paragraph 1." 

Concerning  the  insertion  of  spot  advertising  (Art  11)  the  Commission  can  accept  in  part 
Amendments 228 and 208 subject to the following rewording:  

"Article 11 

(1)  Member  States  shall  ensure,  where  advertising  or  teleshopping  is  inserted  during 
programmes, that the integrity of the programmes, taking into account natural breaks in and 
the  duration  and  the  nature  of  the  programme,  and  the  rights  of  the  right  holders  are  not 
prejudiced. 

transmission  of  films  made  for 

(2)  The 
television  (excluding  series,  serials  and 
documentaries),  cinematographic  works  and  news  programmes  may  be  interrupted  by 
advertising  and/or  teleshopping  once  for  each  scheduled  period  of  at  least  30  minutes.  The 
transmission of children’s programmes may be interrupted by advertising and/or teleshopping 
once for each scheduled period of at least 30 minutes, provided the scheduled duration of the 
programme is greater than 30 minutes. No advertising or teleshopping may be inserted during 
religious services." 

Concerning  teleshopping  the  Commission  can  accept  Amendment  229  subject  to  the 
following rewording:  

"Article 18a 

Teleshopping windows shall be clearly identified as such by optical and acoustic means and 
be of an uninterrupted minimum duration of 15 minutes." 

Concerning  regulatory  authorities  the  Commission  can  accept  Amendment  147  and  149 
subject to the following rewording:  

"Article 23b 

"(1)  Member  States  shall  take  appropriate  measures  to  establish  national  regulatory  bodies 
and  institutions  in  accordance  with  national  law,  to  guarantee  their  independence  and  to 
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.  National 
regulatory  authorities  shall  cooperate  closely  in  the  resolution  of  problems  arising  from  the 
application of this Directive." 

Concerning the general transposition provisions the Commission can accept: 

Amendment 150 subject to the following rewording:  

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"Article 26 

Not  later  than  […],  and  every  three  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.  This  report  shall  describe  the  general  level  of 
compliance with the Directive and to which extend the objectives of this Directive have been 
achieved in particular with regard to: 

–  European and independent production (Art 5, 6 and 3f) 

–  Accessibility for people with disabilities (Art 3 hc). 

If  necessary,  the  Commission  should  make  further  proposals  to  adapt  it  to  developments  in 
the  field  of  audiovisual  media  services,  in  particular  in  light  of  recent  technological 
developments,  the  competitiveness  of  the  sector  and  levels  of  media  literacy  in  all  Member 
States." 

Amendment 151 (Article 3 of the amending Directive) subject to the following rewording:  

"(1) Member States shall bring into force the laws, regulations and administrative provisions 
necessary  to  comply  with  this  Directive  by  [Two  years  after  the  entry  into  force  of  this 
Directive] at the latest. They shall 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." 

3.3.  Conclusion 

Pursuant to Article 250(2), of the EC Treaty, the Commission amends its proposals as set out 
above. 

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