Common Position (EC) No 18/2007 of 15 October 2007 adopted by the Council, acting in accordance with the procedure referred to in Article 251 of the Treaty establishing the European Community, with a view to the adoption of a Directive of the European Parliament and of the Council amending Council Directive 89/552/EEC on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities Text with EEA relevance
Date: 2007-10-15
Institutions: Council of the European Union
Subjects: access to information, advertising, approximation of laws, audiovisual industry, broadcasting, dissemination of information, provision of services, regulation of telecommunications, right of establishment, television

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Official Journal of the European Union

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III

(Preparatory Acts)

COUNCIL

COMMON POSITION (EC) No 18/2007

adopted by the Council on 15 October 2007

with a view to adopting Directive 2007/…/EC of the European Parliament and of the Council of …
amending Council Directive 89/552/EEC on the coordination of certain provisions laid down by
law, regulation or administrative action in Member States concerning the pursuit of television
broadcasting activities

(Text with EEA relevance)

(2007/C 307 E/01)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE
EUROPEAN UNION,

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

Having regard to the proposal from the Commission,

Having regard to the opinion of the European Economic and
Social Committee (1),

Having regard to the opinion of
Regions (2),

the Committee of

the

(2)

Acting in accordance with the procedure
Article 251 of the Treaty (3),

laid down in

Whereas:

(1)

Council Directive 89/552/EEC (4) coordinates certain
provisions laid down by law, regulation or administrative
action in Member States concerning the pursuit of broad-
in the
casting activities. However, new technologies

(1) OJ C 318, 23.12. 2006, p. 202.
(2) OJ C 51, 6.3.2007, p. 7.
(3) Opinion of the European Parliament of 13 December 2006 (OJ C 317 E,
23.12.2006), Council Common Position of 15 October 2007, Position
of the European Parliament of … (not yet published in the Official
Journal).

(4) Council Directive 89/552/EEC of 3 October 1989 on the coordination
of certain provisions laid down by Law, Regulation or Administrative
Action in Member States concerning the pursuit of television broad-
casting activities. (OJ L 298, 17.10.1989, p. 23). Directive as last
amended by Directive 97/36/EC (OJ L 202, 30.7.1997, p. 60).

(3)

(4)

transmission of audiovisual media services call for adapta-
tion of the regulatory framework to take account of the
impact of structural change, the spread of information
and communication technologies (‘ICT’) and technological
developments on business models, especially the finan-
cing of commercial broadcasting, and to ensure optimal
conditions of competitiveness and legal certainty for
Europe's information technologies and its media indus-
tries and services, as well as respect for cultural and
linguistic diversity.

The laws, regulations and administrative measures in
Member States concerning the pursuit of
television
broadcasting activities are already coordinated by Direc-
tive 89/552/EEC, whereas the rules applicable to activities
such as on-demand audiovisual media services contain
disparities, some of which may impede the free move-
ment of those services within the European Community
and may distort competition within the internal market.

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 applica-
tion of specific rules to these services.

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

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In its resolutions of 1 December 2005 (1) and 4 April
2006 (2) on the Doha Round and on the WTO Minis-
terial Conferences, the European Parliament called for
basic public services, such as audiovisual services, to be
excluded from liberalisation under the GATS negotia-
tions. In its resolution of 27 April 2006 (3), the European
Parliament supported the Unesco Convention on the
Protection and Promotion of the Diversity of Cultural
Expressions, which states in particular that ‘cultural activ-
ities, goods and services have both an economic and a
cultural nature, because they convey identities, values and
meanings, and must therefore not be treated as solely
having commercial value’. The Council Decision of
18 May 2006 on the conclusion of the Convention on
the Protection and Promotion of the Diversity of Cultural
Expressions (4) approved the Unesco Convention on
behalf of the Community. The Convention entered into
force on 18 March 2007. This Directive respects the prin-
ciples of that Convention.

Traditional audiovisual media services — such as televi-
sion — and emerging on-demand audiovisual media
services offer significant employment opportunities in the
Community, particularly in small and medium-sized
enterprises, and stimulate economic growth and invest-
ment. Bearing in mind the importance of a level playing-
field and a true European market for audiovisual media
services, the basic principles of the internal market, such
as free competition and equal
treatment, should be
respected in order to ensure transparency and predict-
ability in markets for audiovisual media services and to
achieve low barriers to entry.

(9)

(10)

(5)

(6)

(7)

It

delivering

companies

Legal uncertainty and a non-level playing-field exist for
European
audiovisual media
services as regards the legal regime governing emerging
on-demand audiovisual media services.
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 infor-
mation area, that at least a basic tier of coordinated rules
apply to all audiovisual media services, both television
linear audiovisual media services) and
broadcasting (i.e.
on-demand audiovisual media services (i.e. non-linear
audiovisual media services). The basic principles of Direc-
tive 89/552/EEC, namely the country of origin principle
and common minimum standards, have proved their
worth and should therefore be retained.

(8)

On 15 December 2003,
the Commission adopted a
Communication on the future of European regulatory

(1) OJ C 285 E, 1.12.2006, p. 126.
(2) OJ C 293 E, 2.12.2006, p. 155.
(3) OJ C 296 E, 6.12. 2006, p. 104.
(4) OJ L 201, 25.7.2006, p. 15.

audiovisual policy,
in which it stressed that regulatory
policy in that sector has to safeguard certain public inter-
ests, such as cultural diversity, the right to information,
media pluralism, the protection of minors and consumer
protection and to enhance public awareness and media
literacy, now and in the future.

the Governments of

The Resolution of the Council and of the Representatives
of
the Member States, meeting
within the Council of 25 January 1999 concerning
public service broadcasting (5) reaffirmed that the fulfil-
ment of
the mission of public service broadcasting
requires that it continue to benefit from technological
progress. The co-existence of private and public audiovi-
sual media service providers is a feature which distin-
guishes the European audiovisual media market.

the

convergence of

strategy designed to encourage

The Commission has adopted the initiative ‘i2010:
European Information Society’ to foster growth and jobs
in the information society and media industries. This is a
comprehensive
the
production of European content, the development of the
digital economy and the uptake of ICT, against the back-
ground of
information society
services and media services, networks and devices, by
modernising and deploying all EU policy instruments:
regulatory instruments, research and partnerships with
industry. The Commission has committed itself
to
creating a consistent internal market framework for infor-
mation society services and media services by moder-
nising the legal
services,
starting with a Commission proposal in 2005 to moder-
nise the Television without Frontiers Directive and trans-
form it into a Directive on Audiovisual Media Services.
The goal of
in principle be
achieved by allowing industries to grow with only the
necessary regulation, as well as allowing small start-up
businesses, which are the wealth and job creators of the
future, to flourish, innovate and create employment in a
free market.

framework for audiovisual

the i2010 initiative will

(11)

The European Parliament adopted on 4 September
2003 (6), 22 April 2004 (7) and 6 September 2005 (8)
resolutions which called for the adaptation of Directive
89/552/EEC to reflect structural changes and technolo-
gical developments while fully respecting its underlying
principles, which remain valid. In addition, it in principle
supported the general approach of basic rules for all
audiovisual media services and additional rules for televi-
sion broadcasting.

(5) OJ C 30, 5.2.1999, p. 1.
(6) European Parliament

resolution on Television without Frontiers

(OJ C 76 E, 25.3.2004, p. 453).

(7) European Parliament Resolution on the risks of violation, in the EU and
especially in Italy, of
freedom of expression and information
(Article 11(2) of the Charter of Fundamental Rights) (OJ C 104 E,
30.4.2004, p. 1026).

(8) European Parliament resolution on the application of Articles 4 and 5
of Directive 89/552/EEC (‘Television without Frontiers’), as amended by
Directive 97/36/EC,
the period 2001-2002 (OJ C 193 E,
17.8.2006, p. 117).

for

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(12)

(13)

This Directive enhances compliance with fundamental
rights and is fully in line with the principles recognised
by the Charter of Fundamental Rights of the European
Union (1), in particular Article 11 thereof. In this regard,
this Directive should 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.

the obligations on
This Directive should not affect
Member States arising from the application of Directive
98/34/EC of the European Parliament and of the Council
of 22 June 1998 laying down a procedure for the provi-
sion of information in the field of technical standards
and regulations and of rules on Information Society
services (2). Accordingly, draft national measures applic-
able to on-demand audiovisual media services of a stricter
or more detailed nature than those required to simply
transpose this Directive should be subject to the proce-
dural obligations established under Article 8 of Direc-
tive 98/34/EC.

(17)

(18)

(14) Directive 2002/21/EC of the European Parliament and
the Council of 7 March 2002 on a common regulatory
framework for electronic communications networks and
services
to its
Article 1(3) is without prejudice to measures taken at
Community or national level, to pursue general interest
objectives, in particular relating to content regulation and
audiovisual policy.

(Framework Directive) (3)

according

i.e.

that

that

is characteristic of on-demand audiovisual media
It
services
they
they are ‘television-like’,
compete for the same audience as television broadcasts,
and the nature and the means of access to the service
would lead the user
reasonably to expect regulatory
protection within the scope of this Directive. In the light
of this and in order to prevent disparities as regards free
movement and competition, the notion of ‘programme’
should be interpreted in a dynamic way taking into
account developments in television broadcasting.

For the purpose of this Directive, the definition of an
audiovisual media service should cover mass media in
function to inform, entertain and educate the
their
general public, and should include audiovisual commer-
cial communication but should exclude any form of
private correspondence, such as e-mails sent to a limited
number of recipients. That definition should exclude all
services whose principal purpose is not the provision of
programmes, i.e. where any audiovisual content is merely
incidental to the service and not its principal purpose.
Examples
contain audiovisual
elements only in an ancillary manner, such as animated
graphical elements, short advertising spots or informa-
tion related to a product or non-audiovisual service. For
these reasons, games of chance involving a stake repre-
senting a sum of money, including lotteries, betting and
other forms of gambling services, as well as on-line
games and search engines, but not broadcasts devoted to
gambling or games of chance, should also be excluded
from the scope of this Directive.

include websites

that

(15) No provision of this Directive should require or encou-
rage Member States to impose new systems of licensing
or administrative authorisation on any type of audiovi-
sual media service.

(19)

For the purpose of this Directive, the definition of media
service provider should exclude natural or legal persons
who merely transmit programmes for which the editorial
responsibility lies with third parties.

(20)

(16)

should

this Directive,
service

the definition of
For
the purpose of
cover only
an audiovisual media
television broad-
audiovisual media services, whether
casting 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. Its scope should be limited to services as
defined by the Treaty and therefore should cover any
form of economic activity,
including that of public
service enterprises, but should not cover activities which
are primarily non-economic and which are not in compe-
tition with television broadcasting,
such as private
websites and services consisting of the provision or distri-
bution of audiovisual content generated by private users
for the purposes of sharing and exchange within commu-
nities of interest.

for

television broadcasting or

Television broadcasting, currently includes, in particular,
analogue and digital television, live streaming, webcasting
and near-video-on-demand, whereas video-on-demand,
for example, is an on demand audiovisual media service.
In general,
television
programmes which are also offered as on-demand audio-
visual media services by the same media service provider,
the requirements of this Directive should be deemed to
be met by the fulfilment of the requirements applicable
to the
transmission.
However, where different kinds of services are offered in
parallel, but are clearly separate services, this Directive
should apply to each of the services concerned.

television broadcast

linear

i.e.

(1) OJ C 364, 18.12.2000 p. 1.
(2) OJ L 204, 21.7.1998, p. 37. Directive as last amended by Council

Directive 2006/96/EC (OJ L 363, 20.12.2006, p. 81).

(3) OJ L 108, 24.4.2002, p. 33.

(21)

The scope of this Directive should not cover electronic
versions of newspapers and magazines.

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(22)

(23)

For the purpose of this Directive, the term ‘audiovisual’
should refer to moving images with or without sound,
thus including silent films but not covering audio trans-
mission or radio services. While the principal purpose of
an audiovisual media
the provision of
service
programmes, the definition of such a service should also
cover
accompanies
programmes, such as subtitling services and electronic
services
Stand-alone
programme
should not fall within the scope of this Directive, which
freedom to regulate
should not affect Member States'
such services at national
in accordance with the
Treaty.

text-based

text-based

content

guides.

which

level

is

The notion of editorial responsibility is essential
for
the media service provider and
defining the role of
thereby for the definition of audiovisual media services.
Member States may further specify aspects of the defini-
tion of editorial responsibility, notably the notion of
‘effective control’, when adopting measures to implement
this Directive. This Directive should be without prejudice
to the exemptions from liability established in Direc-
tive 2000/31/EC of the European Parliament and of the
Council of 8 June 2000 on certain legal aspects of infor-
electronic
mation
commerce, in the Internal Market (Directive on electronic
commerce) (1).

particular

services,

society

in

(24)

In the context of television broadcasting, the notion of
simultaneous viewing should also cover quasi simulta-
neous viewing because of the variations in the short time
lag which occurs between the transmission and the recep-
tion of the broadcast due to technical reasons inherent in
the transmission process.

(25) All the characteristics of an audiovisual media service set
out in its definition and explained in Recitals 16 to 23
should be present at the same time.

(26)

(27)

In addition to television advertising and teleshopping, a
wider definition of audiovisual commercial communica-
tion should be introduced in this Directive, which
however should not
include public service announce-
ments and charity appeals broadcast free of charge.

The country of origin principle should remain the core of
this Directive, as it is essential for the creation of an
internal market. This principle should therefore be
applied to all audiovisual media services in order to
ensure legal certainty for media service providers as the
necessary basis for new business models and the deploy-
ment of such services. It is also essential
in order to
information and audiovisual
ensure the free flow of
programmes in the internal market.

(1) OJ L 178, 17.7.2000, p. 1.

(28)

(29)

In order to promote a strong, competitive and integrated
industry
European audiovisual
and enhance media
pluralism throughout
the European Union, only one
Member State should have jurisdiction over an audiovi-
sual media service provider and the pluralism of informa-
tion should be a fundamental principle of the European
Union.

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

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

(31) Articles 43 to 48 of the Treaty lay down the fundamental
right to the freedom of establishment. Therefore, media
service providers should in general be free to choose the
Member States in which they establish themselves. The
Court of Justice has also emphasised that ‘the Treaty does
not prohibit an undertaking from exercising the freedom
to provide services if it does not offer services in the
Member State in which it is established’ (2).

(32) Member States should be able to apply more detailed or
stricter rules in the fields coordinated by this Directive to
media service providers under their jurisdiction, while
ensuring that those rules are consistent with general prin-
ciples of Community law. In order to deal with situations
where a broadcaster under
the jurisdiction of one
Member State provides a television broadcast which is
wholly or mostly directed towards
the territory of
another Member State, a requirement for Member States
to cooperate with one another and, in cases of circum-
vention, the codification of the case law of the Court of
Justice (3), combined with a more efficient procedure,
would be an appropriate solution that takes account of
Member State concerns without calling into question the
proper application of the country of origin principle. The
notion of rules of general public interest has been devel-
oped by the Court of Justice in its case law in relation to
Articles 43 and 49 of the Treaty and includes, inter alia,
rules on the protection of consumers, the protection of
minors and cultural policy. The Member State requesting
cooperation should ensure that
the specific national
rules in question are objectively necessary, applied in a
non-discriminatory manner, and proportionate.

(2) Case C-56/96 VT4, paragraph 22; Case C-212/97, Centros v
Erhvervs-og Selskabsstyrelsen; see also: Case C-11/95, Commission v
Kingdom of Belgium and Case C-14/96, Paul Denuit.

(3) Case C-212/97, Centros v Erhvervs-og Selskabsstyrelsen; Case C-33/74,
Van Binsbergen v Bestuur van de Bedrijfsvereniging; Case C-23/93, TV
10 SA v Commissariaat voor de Media, paragraph 21.

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(33) A Member State, when assessing on a case-by-case basis
whether a broadcast by a media service provider estab-
lished in another Member State is wholly or mostly
directed towards its territory, may refer to indicators such
as the origin of the television advertising and/or subscrip-
tion 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.

(34) Under this Directive, notwithstanding the application of
the country of origin principle, Member States may still
take measures that restrict freedom of movement of tele-
vision broadcasting, but only under the conditions, and
following the procedure laid down in this Directive.
However, the 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 (1).

(35) With respect to on-demand audiovisual media services,
restrictions upon their free provision should only be
possible in accordance with conditions and procedures
replicating those already established by Articles 3(4), (5)
and (6) of Directive 2000/31/EC.

(36)

the relevant

in particular,

In its Communication to the European Parliament and
the Council on Better Regulation for Growth and Jobs in
the European Union,
the Commission stressed that a
careful analysis of the appropriate regulatory approach is
in order to establish, whether
necessary,
legislation is preferable for
sector and
problem, or whether alternatives such as co-regulation or
self-regulation should be considered. Furthermore, experi-
ence has shown that both co- and self-regulation instru-
ments,
implemented in accordance with the different
legal traditions of the Member States, can play an impor-
tant role in delivering a high level of consumer protec-
tion. Measures aimed at achieving public interest objec-
tives in the emerging audiovisual media services sector
are more effective if
they are taken with the active
support of the service providers themselves.

Thus self-regulation constitutes a type of voluntary initia-
tive, which enables the economic operators, social part-
ners, non-governmental organisations or associations to
adopt common guidelines amongst themselves and for
in accordance with
themselves. Member States should,
their different legal traditions, recognise the role which
effective self-regulation can play as a complement to the
legislative and judicial and/or administrative mechanisms
in place and its useful contribution to the achievement of
the objectives of this Directive. However, while self-regu-
lation might be a complementary method of
imple-
menting certain provisions of this Directive, it should not
constitute a substitute for the obligations of the national
legislator.

form, a legal

in its minimal

link
Co-regulation gives,
legislator in
between self-regulation and the national
accordance with the legal
the Member
traditions of
States. Co-regulation should allow for the possibility for
State intervention in the event of its objectives not being
met. Without prejudice to Member States' formal obliga-
tions regarding transposition, this Directive encourages
the use of
co-regulation and self-regulation. This
should neither oblige Member States to set up co- and/or
self-regulatory regimes nor disrupt or jeopardise current
co- or self-regulatory initiatives which are already in place
within Member States and which are working effectively.

(37)

‘Media literacy’ refers to skills, knowledge and under-
standing that allow consumers to use media effectively
and safely. Media-literate people are able to exercise
informed choices, understand the nature of content and
services and take advantage of the full range of opportu-
nities offered by new communications technologies. They
are better able to protect themselves and their families
from harmful or offensive material. Therefore the devel-
opment of media literacy in all sections of society should
be promoted and its progress followed closely.

The Recommendation of the European Parliament and of
the Council of 20 December 2006 on the protection of
minors and human dignity and on the right of reply in
relation to the competitiveness of the European audiovi-
sual and on-line information services industry (2) already
contains a series of possible measures for promoting
media literacy such as, for example, continuing education
of teachers and trainers, specific Internet training aimed
at children from a very early age, including sessions open
to parents, or organisation of national campaigns aimed
at citizens,
to
involving all communications media,
provide information on using the Internet responsibly.

(38)

(39)

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

is essential

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 television broadcasting rights
to an event of high interest to the public should grant
other 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

(1) Case C-355/98, Commission v Belgium [2000] ECR I-1221, para-
graph 28; Case C-348/96, Calfa [1999] ECR I-0011, paragraph 23.

(2) OJ L 378, 27.12.2006, p. 72.

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a timely manner before the event of high interest to the
public takes place to give others sufficient time to exer-
cise such a right. A broadcaster should be able to exercise
this right through an intermediary acting specifically on
its behalf on a case-by-case basis. Such short extracts may
be used for EU-wide broadcasts by any channel including
dedicated sports channels and should not exceed ninety
seconds.

The right of access to short extracts should apply on a
trans-frontier basis only where it is necessary. Therefore a
broadcaster should first seek access from a broadcaster
established in the same Member State having exclusive
rights to the event of high interest to the public.

The notion of general news programmes should not
cover the compilation of short extracts into programmes
serving entertainment purposes.

the different

The country of origin principle should apply to both the
access to and the transmission of, the short extracts. In a
trans-frontier case,
laws
this means that
should be applied sequentially. Firstly, for access to the
short extracts the law of the Member State where the
broadcaster supplying the initial signal (i.e. giving access)
is established should apply. This is usually the Member
State in which the event concerned takes place. Where a
Member State has established an equivalent system of
access to the event concerned, the law of that Member
State should apply in any case. Secondly, for transmission
of the short extracts, the law of the Member State where
the broadcaster transmitting the short extracts is estab-
lished should apply.

granting access to the venue of these events prior to
granting access to the signal. Broadcasters should not be
prevented from concluding more detailed contracts.

(41)

It should be ensured that the practice of media service
live television broadcast
providers of providing their
news programmes in the on-demand mode after live
transmission is still possible without having to tailor the
individual programme by omitting the short extracts.
This possibility should be restricted to the on-demand
supply of the identical television broadcast programme
by the same media service provider, so it may not be
used to create new on-demand business models based on
short extracts.

(42) On-demand audiovisual media services are different from
television broadcasting with regard to the choice and
control the user can exercise, and with regard to the
impact they have on society (2). This justifies imposing
lighter
regulation on on-demand audiovisual media
services, which should comply only with the basic rules
provided for in this Directive.

(43)

(44)

Because of
the specific nature of audiovisual media
services, especially the impact of these services on the
way people form their opinions, it is essential for users to
know exactly who is responsible for the content of these
services. It is therefore important for Member States to
ensure that users have easy and direct access at any time
to information about the media service provider. It is for
each Member State to decide the practical details as to
how this objective can be achieved without prejudice to
any other relevant provisions of Community law.

The availability of harmful content in audiovisual media
services continues to be a concern for legislators, the
media industry and parents. There will also be new chal-
lenges, especially in connection with new platforms and
new products. It is therefore necessary to introduce rules
to protect the physical, mental and moral development of
minors as well as human dignity in all audiovisual media
including audiovisual commercial communica-
services,
tions.

(40)

The requirements of this Directive regarding access to
events of high interest to the public for the purpose of
short news reports should be without prejudice to Direc-
tive 2001/29/EC of the European Parliament and of the
Council of 22 May 2001 on the harmonisation of certain
aspects of copyright and related rights in the information
society (1) and the relevant international conventions in
the field of copyright and neighbouring rights. Member
States should facilitate access to events of high interests
to the public by granting access to the broadcaster's
signal within the meaning of this Directive. However,
they may choose other equivalent means within the
meaning of this Directive. Such means include, inter alia,

expression as

(45) Measures taken to protect the physical, mental and moral
development of minors and human dignity should be
carefully balanced with the fundamental right to freedom
of
laid down in the Charter on
Fundamental Rights of the European Union. The aim of
personal
as
those measures,
identification numbers (PIN codes), filtering systems or
labelling, should thus be to ensure an adequate level of
protection of the physical, mental and moral develop-
ment of minors and human dignity, especially with
regard to on-demand audiovisual media services.

such

use

the

of

(1) OJ L 167, 22.6.2001, p. 10.

(2) Case C-89/04, Mediakabel.

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The Recommendation on the protection of minors and
human dignity and on the right of reply already recog-
nised the importance of filtering systems and labelling
and included a number of possible measures for the
benefit of minors, such as systematically supplying users
with an effective, updatable and easy-to-use filtering
system when they subscribe to an access provider or
equipping the access to services specifically intended for
children with automatic filtering systems.

casters to include an adequate share of co-produced
European works or of European works of non-domestic
origin.

(51)

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

(46) Media service providers under the jurisdiction of

the
Member States should in any case be subject to a ban on
the dissemination of child pornography according to the
provisions of Council Framework Decision 2004/68/JHA
of 22 December 2003 on combating the sexual exploita-
tion of children and child pornography (1).

(47) None of the provisions introduced by this Directive that
concern the protection of physical, mental and moral
development of minors and human dignity necessarily
requires that the measures taken to protect those interests
should be implemented through prior verification of
audiovisual media services by public bodies.

(52)

(53)

of

to

the

cultural

promotion

(48) On-demand audiovisual media services have the potential
to partially replace television broadcasting. Accordingly,
they should, where practicable, promote the production
and distribution of European works and thus contribute
actively
diversity.
Such support for European works might, for example,
take the form of financial contributions by such services
to the production of and acquisition of
in
European works, a minimum share of European works in
video-on-demand catalogues, or the attractive presenta-
tion of European works in electronic programme guides.
It is important to regularly re-examine the application of
the provisions relating to the promotion of European
works by audiovisual media services. Within the frame-
work of the reports set out under this Directive Member
States should 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,
of
in
European works offered by such services.

consumption

actual

rights

and

the

as

(49) When defining ‘producers who are independent of broad-
referred to in Article 5 of Directive
casters’
89/552/EEC, Member States should take appropriate
account notably of criteria such as the ownership of the
production company,
amount of programmes
supplied to the same broadcaster and the ownership of
secondary rights.

the

The availability of on-demand audiovisual media services
the consumer. Detailed rules
increases the choice of
governing audiovisual commercial communication for
on-demand audiovisual media
appear
neither to be justified nor to make sense from a technical
point of view. Nevertheless, all audiovisual commercial
communication should respect not only the identification
rules but also a basic tier of qualitative rules in order to
meet clear public policy objectives.

services

thus

The right of reply is an appropriate legal remedy for
television broadcasting and could also be applied in the
on-line
environment. The Recommendation on the
protection of minors and human dignity and on the right
of reply already includes appropriate guidelines for the
implementation of measures in national law or practice
so as to ensure sufficiently the right of reply or equivalent
remedies in relation to on-line media.

(54) As has been recognised by the Commission in its Inter-
pretative Communication on certain aspects of the provi-
sions on advertising in the ‘Television without frontiers’
Directive (2), the development of new advertising techni-
ques and marketing innovations has created new effective
opportunities for audiovisual commercial communica-
in traditional broadcasting services, potentially
tions
enabling them better to compete on a level playing-field
with on-demand innovations.

(55)

Commercial and technological developments give users
increased choice and responsibility in their use of audio-
visual media services. In order to remain proportionate
with the goals of general interest, regulation should allow
a certain degree of flexibility with regard to television
separation should be
broadcasting. The principle of
limited to television advertising
and teleshopping,
product placement should be allowed under certain
circumstances, unless a Member State decides otherwise,
and some quantitative restrictions should be abolished.
However, where product placement is surreptitious,
it
should be prohibited. The principle of separation should
not prevent the use of new advertising techniques.

(50) When implementing the provisions of Article 4 of Direc-
tive 89/552/EEC, Member States should encourage broad-

(56) Apart from the practices that are covered by this Direc-
tive, Directive 2005/29/EC of the European Parliament
and of the Council of 11 May 2005 concerning unfair
the
commercial
business-to-consumer

practices

in

(1) OJ L 13, 20.1.2004, p. 44.

(2) OJ C 102, 28.4.2004, p. 2.

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and other

services. Moreover,

the European Parliament and of

internal market (1) applies to unfair commercial practices,
such as misleading and aggressive practices occurring in
audiovisual media
as Directive
the
2003/33/EC of
Council of 26 May 2003 on the approximation of the
laws, regulations and administrative provisions of
the
Member States relating to the advertising and sponsor-
ship of tobacco products (2), which prohibits advertising
tobacco
cigarettes
and sponsorship for
products in printed media, information society services
and radio broadcasting,
is without prejudice to Direc-
tive 89/552/EEC, in view of the special characteristics of
audiovisual media services, the relation between Directive
2003/33/EC and Directive 89/552/EEC should remain
the same after the entry into force of
this Directive.
Article 88(1) of Directive 2001/83/EC of the European
Parliament and of the Council of 6 November 2001 on
the Community code relating to medicinal products for
human use (3) which prohibits advertising to the general
public of certain medicinal products applies, as provided
in paragraph 5 of
that 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 this Direc-
tive. Furthermore, this Directive should be without preju-
dice to Regulation (EC) No 1924/2006 of the European
Parliament and of the Council of 20 December 2006 on
nutrition and health claims made on foods (4).

(57) Given the increased possibilities for viewers to avoid
advertising through use of new technologies such as
digital personal video recorders and increased choice of
channels, detailed regulation with regard to the insertion
of spot advertising with the aim of protecting viewers is
no longer
justified. While this Directive should not
increase the hourly amount of admissible advertising, it
should give flexibility to broadcasters with regard to its
insertion where this does not unduly impair the integrity
of programmes.

(58)

(59)

This Directive is intended to safeguard the specific char-
acter of European television, where advertising is prefer-
ably inserted between programmes, and therefore limits
possible interruptions to cinematographic works and
films made for television as well as interruptions to some
categories of programmes that still need specific protec-
tion.

The limitation that existed on the amount of daily televi-
sion advertising was largely theoretical. The hourly limit
is more important since it also applies during ‘prime
time’. Therefore the daily limit should be abolished, while
television
the hourly limit should be maintained for
advertising and teleshopping spots. The restrictions on

(1) OJ L 149, 11.6.2005, p. 22.
(2) OJ L 152, 20.6.2003, p. 16.
(3) OJ L 311, 28.11.2001, p. 67. Directive as last amended by Regulation

(EC) No 1901/2006 (OJ L 378, 27.12.2006, p. 1).

(4) OJ L 404, 30.12.2006, p. 9. Corrected version in OJ L 12, 18.1.2007,

p. 3.

(60)

(61)

the time allowed for teleshopping or advertising channels
seem no longer
justified given increased consumer
choice. However, the limit of 20 % of television adver-
tising spots and teleshopping spots per clock hour
remains applicable. The notion of a television advertising
spot should be understood as television advertising in the
sense of Article 1(i) of Directive 89/552/EEC as amended
by this Directive having a duration of not more than
twelve minutes.

Surreptitious audiovisual commercial communication is a
practice prohibited by this Directive because of its nega-
tive effect on consumers. The prohibition of surreptitious
audiovisual commercial communication should not cover
legitimate product placement within the framework of
this Directive, where the viewer is adequately informed of
the existence of product placement. This can be done by
signalling the fact that product placement is taking place
in a given programme, for example by means of a neutral
logo.

the European media industry,

Product placement is a reality in cinematographic works
television, but
and in audiovisual works made for
Member States regulate this practice differently. In order
to ensure a level playing field, and thus enhance the
competitiveness of
it is
necessary to adopt rules for product placement. The defi-
nition of product placement introduced by this Directive
should cover
commercial
any form of audiovisual
communication consisting of the inclusion of or refer-
ence to a product, a service or the trade mark thereof so
in return for
that it is featured within a programme,
payment or for similar consideration. The provision of
goods or services free of charge, such as production
props or prizes, should only be considered to be product
placement if the goods or services involved are of signifi-
cant value. Product placement should be subject to the
same qualitative rules and restrictions applying to audio-
visual commercial communication. The decisive criterion
distinguishing sponsorship from product placement
is
the fact that in product placement the reference to a
product is built into the action of a programme which is
why
the definition in Article 1(m) of Directive
89/552/EEC as amended by this Directive contains the
word ‘within’.
In contrast, sponsor references may be
shown during a programme but are not part of the plot.

(62)

Product placement should,
in principle, be prohibited.
However, derogations are appropriate for some kinds of
programme, on the basis of a positive list. A Member
these derogations,
State should be able to opt-out of
totally or partially, for example by permitting product
placement only in programmes which have not been
produced exclusively in that Member State.

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(63)

(64)

Furthermore, sponsorship and product placement should
be prohibited where they influence the content of
programmes in such a way as to affect the responsibility
the media service
independence of
and the editorial
provider. This is the case with regard to thematic place-
ment.

(68)

In accordance with point 34 of
the Interinstitutional
agreement on better law-making (1), Member States are
encouraged to draw up, for themselves and in the inter-
ests of the Community, their own tables illustrating, as
far as possible, the correlation between this Directive and
the transposition measures, and to make them public,

The right of persons with a disability and of the elderly
to participate and be integrated in the social and cultural
life of the Community is inextricably linked to the provi-
sion of accessible audiovisual media services. The means
to achieve accessibility should include, but need not be
limited to sign language, subtitling, audio-description and
easily understandable menu navigation.

HAVE ADOPTED THIS DIRECTIVE:

Article 1

legal

(65) According to the duties conferred upon Member States
by the Treaty, they are responsible for the transposition
and effective implementation of this Directive. They are
free to choose the appropriate instruments according to
their
traditions and established structures, and
notably the form of their competent independent regula-
tory bodies, in order to be able to carry out their work in
implementing this Directive impartially and transparently.
More specifically,
the instruments chosen by Member
States should contribute to the promotion of media plur-
alism.

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

1. the title shall be replaced by the following:

‘Directive 89/552/EEC of 3 October 1989 of the European
Parliament and of
the Council on the coordination of
certain provisions laid down by law, regulation or adminis-
trative action in Member States concerning the provision of
audiovisual media services
(Audiovisual Media Services
Directive)’;

2. Article 1 shall be replaced by the following:

(66)

(67)

Close cooperation between competent Member States'
regulatory bodies and the Commission is necessary to
ensure the correct application of this Directive. Similarly
close cooperation between Member States and between
Member States' regulatory bodies is particularly impor-
tant with regard to the impact broadcasters established in
one Member State might have on another Member State.
Where 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 bodies
take place before such licences are granted. This coopera-
tion should cover all
fields coordinated by Directive
89/552/EEC as amended by this Directive and in particu-
lar Articles 2, 2a and 3 thereof.

‘Article 1

For the purpose of this Directive:

(a) “audiovisual media service” means:

inform,

entertain

— 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
the
to
communications
general public by
networks within the meaning of Article 2(a) of
Directive 2002/21/EC. Such an audiovisual media
service is either a television broadcast as defined in
point (e) of this Article or an on-demand audiovi-
sual media service as defined in point (g) of this
Article,

or
electronic

educate,

Since the objectives of this Directive, namely creation of
an area without internal frontiers for audiovisual media
services whilst ensuring at the same time a high level of
protection of objectives of general interest, in particular
the protection of minors and human dignity as well as
promoting the rights of persons with disabilities, cannot
be sufficiently achieved by the Member States and can
therefore, by reason of the scale and effects of this Direc-
tive, be better achieved at Community level, the Com-
munity may adopt measures,
in accordance with the
principle of subsidiarity as set out in Article 5 of the
Treaty. In accordance with the principle of proportion-
ality, as set out in that Article, this Directive does not go
beyond what is necessary in order to achieve these objec-
tives.

and/or

— audiovisual commercial communication;

(b) “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.
Examples of programmes include feature-length films,
sports events, situation comedies, documentaries, chil-
dren's programmes and original drama;

(1) OJ C 321, 31.12.2003, p. 1.

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(c) “editorial responsibility” means the exercise of effective
control both over the selection of the programmes and
over their organisation either in a chronological sche-
dule, in the case of television broadcasts, or in a cata-
logue,
in the case of on-demand audiovisual media
services. Editorial responsibility does not necessarily
imply any legal
law for the
content or the services provided;

liability under national

(d) “media service provider” means the natural or legal
person who has editorial responsibility for the choice
of the audiovisual content of the audiovisual media
service and determines the manner in which it is orga-
nised;

considered as intentional
payment or for similar consideration;

if it is done in return for

(k) “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;

(l) “teleshopping” means direct offers broadcast

to the
public with a view to the supply of goods or services,
including immovable property, rights and obligations,
in return for payment;

(e) “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;

(m) “product placement” means 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,
in return for payment or for similar consideration;

(f) “broadcaster” means a media service provider of televi-

sion broadcasts;

(n)

(i) “European works” means the following:

— works originating in Member States,

(g) “on-demand

(i.e.

service”

audiovisual media

a
non-linear audiovisual media service) means an audio-
visual media service provided by a media service
provider
the
moment chosen by the user and at his individual
request on the basis of a catalogue of programmes
selected by the media service provider;

the viewing of programmes at

for

(h) “audiovisual

commercial

communication” means
images with or without sound which are designed to
promote, directly or indirectly, the goods, services or
legal entity pursuing an
image of a natural or
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
communication
commercial
inter alia, television advertising, sponsorship,
include,
teleshopping and product placement;

audiovisual

(i) “television advertising” means any form of announce-
ment broadcast whether in return for payment or for
similar consideration or broadcast for self-promotional
purposes by a public or private undertaking or natural
person in connection with a trade, business, craft or
profession in order to promote the supply of goods or
services,
rights and
obligations, in return for payment;

including immovable property,

the name,

(j) “surreptitious audiovisual commercial communication”
means the representation in words or pictures of
goods, services,
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
in particular, be
nature. Such representation shall,

the trade mark or

— works

in

European

originating

third
States- party to the European Convention on
Transfrontier Television of
the Council of
Europe and fulfilling the conditions of point
(ii),

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

Application of the provisions of the second
and third indents
shall be conditional on
works originating in Member States not being
the subject of discriminatory measures in the
third country concerned;

(ii) The works referred to in the first and second
indents of point (i) are works mainly made with
authors and workers residing in one or more of
the States referred to in the first and second
indents of point (i) provided that they comply
with one of the following three conditions:

— they are made by one or more producers
established in one or more of those States, or

— production of

the works is supervised and
actually controlled by one or more producers
established in one or more of those States, or

— the contribution of co-producers of

to the total co-production costs

those
is
States
preponderant and the co-production is not
controlled by one or more producers estab-
lished outside those States.

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(iii) Works that are not European works within the
meaning of point (i) but that are produced within
the framework of bilateral co-production treaties
concluded between Member States and third coun-
tries shall be deemed to be European works
provided that the co-producers from the Com-
munity supply a majority share of the total cost of
production and that
the production is not
controlled by one or more producers established
outside the territory of the Member States.’;

3. Article 2 shall be replaced by the following:

‘Article 2

Each Member State shall ensure that all audiovisual
1.
media services
transmitted by media service providers
under its jurisdiction comply with the rules of the system
of law applicable to audiovisual media services intended for
the public in that Member State.

2.
For the purposes of this Directive, the media service
providers under the jurisdiction of a Member State are
those:

(a) established in that Member State in accordance with

paragraph 3; or

(b) to whom paragraph 4 applies.

3.
For the purposes of this Directive, a media service
provider shall be deemed to be established in a Member
State in the following cases:

(a) the media service provider has its head office in that
Member State and the editorial decisions about
the
audiovisual media service are taken in that Member
State;

(b) if a media service provider has its head office in one
Member State but editorial decisions on the audiovisual
it
media service are taken in another Member State,
shall be deemed to be established in the Member State
where a significant part of the workforce involved in
the pursuit of
the audiovisual media service activity
operates. If a significant part of the workforce involved
in the pursuit of the audiovisual media service activity
operates in each of those Member States, the media
service provider shall be deemed to be established in
the Member State where it has its head office.
If a
significant part of the workforce involved in the pursuit
the audiovisual media service activity operates in
of
neither of
the media service
provider shall be deemed to be established in the
Member State where it first began its activity in accord-
ance with the law of that Member State, provided that
it maintains a stable and effective link with the
economy of that Member State;

those Member States,

(c) if a media service provider has its head office in a
Member State but decisions on the audiovisual media
service are taken in a third country, or vice-versa, it shall
be deemed to be established in the Member State
concerned, provided that a significant part of the work-

force involved in the pursuit of the audiovisual media
service activity operates in that Member State.

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

(a) they use a satellite up-link situated in that Member

State;

(b) although they do not use a satellite up-link situated in
that Member State, they use satellite capacity apper-
taining to that Member State.

5.
If the question as to which Member State has jurisdic-
tion cannot be determined in accordance with paragraphs 3
and 4, the competent Member State shall be that in which
is established within the
the media service provider
meaning of Articles 43 to 48 of the Treaty.

6.
This Directive does not apply to audiovisual media
services intended exclusively for reception in third countries
and which are not received with standard consumer equip-
ment directly or indirectly by the public in one or more
Member States.’;

4. Article 2a is hereby amended as follows:

(a) paragraph 1 shall be replaced by the following:

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

(b) in paragraph 2 the introductory phrase and point (a)

shall be replaced by the following:

In respect of

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

(a) a

television broadcast
Member State manifestly,
infringes Article 22(1) or (2) and/or Article 3(b);’;

from another
seriously and gravely

coming

(c) the following paragraphs shall be added:

‘4.
In respect of on-demand audiovisual media
services, Member States may take measures to derogate
from paragraph 1 in respect of a given service if the
following conditions are fulfilled:

(a) the measures are:

(i) necessary for one of the following reasons:

— public policy, in particular the prevention,
investigation, detection and prosecution of
criminal offences, including the protection
of minors and the fight against any incite-
ment to hatred on grounds of race, sex,
religion or nationality, and violations of
human
individual
persons,

concerning

dignity

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— the protection of public health,

— public security,

including the safeguarding

of national security and defence,

— the protection of consumers,

including

investors;

(ii) taken against an on-demand audiovisual media
service which prejudices the objectives referred
to in point (i) or which presents a serious and
grave risk of prejudice to those objectives;

(iii) proportionate to those objectives;

(b) before taking the measures in question and without
prejudice to court proceedings,
including preli-
in the
minary proceedings and acts carried out
framework of a criminal investigation, the Member
State has:

— asked the Member State under whose jurisdic-
tion the media service provider falls to take
measures and the latter did not
take such
measures, or they were inadequate,

— notified the Commission and the Member State
under whose jurisdiction the media service
provider
its intention to take such
measures.

falls of

5. Member States may, in the case of urgency, dero-
gate from the conditions stipulated in paragraph 4(b).
Where this is the case, the measures shall be notified in
the shortest possible time to the Commission and to
the Member State under whose jurisdiction the media
service provider falls, indicating the reasons for which
the Member State considers that there is urgency.

6. Without prejudice to the Member State's possibi-
lity of proceeding with the measures referred to in para-
graphs 4 and 5, the Commission shall examine the
compatibility of the notified measures with Community
law in the shortest possible time. Where it comes to the
the measures are incompatible with
conclusion that
Community law, the Commission shall ask the Member
State in question to refrain from taking any proposed
measures or urgently to put an end to the measures in
question.’;

5. Article 3 shall be replaced by the following:

‘Article 3

1. Member States shall remain free to require media
service providers under their jurisdiction to comply with
more detailed or stricter rules in the fields coordinated by
this Directive provided that such rules are in compliance
with Community law.

2.

In cases where a Member State:

(a) has exercised its freedom under paragraph 1 to adopt
more detailed or stricter rules of general public interest;
and

(b) assesses that a broadcaster under the jurisdiction of
another Member State provides a television broadcast
which is wholly or mostly directed towards its territory;

it may contact the Member State having jurisdiction
with a view to achieving a mutually satisfactory solution
to any problems posed. On receipt of a substantiated
request by the first Member State, the Member State
having jurisdiction shall
to
comply with the rules of general public interest in ques-
tion. The Member State having jurisdiction shall inform
the first Member State of the results obtained following
this request within two months. Either Member State
may invite the contact committee established under
Article 23a to examine the case.

the broadcaster

request

3. Where the first Member State assesses:

(a) that

the results achieved through the application of

paragraph 2 are not satisfactory; and

(b) that the broadcaster in question has established itself in
the Member State having jurisdiction in order
to
circumvent the stricter rules, in the fields coordinated
by this Directive, which would be applicable to it if it
were established within the first Member State,

it may adopt appropriate measures against the broad-
caster concerned.

Such measures shall be objectively necessary, applied in
a non-discriminatory manner and be proportionate to
the objectives which they pursue.

A Member State may take measures pursuant to para-

4.
graph 3 only if the following conditions are met:

(a) it has notified the Commission and the Member State
in which the broadcaster is established of its intention
to take such measures while substantiating the grounds
on which it bases its assessment; and

(b) the Commission has decided that

the measures are
compatible with Community law, and in particular that
assessments made by the Member State taking these
measures under paragraphs 2 and 3 are correctly
founded.

The Commission shall decide within three months
5.
following the notification provided for in paragraph 4(a). If
the Commission decides that the measures are incompatible
with Community law, the Member State in question shall
refrain from taking the proposed measures.

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

7. Member States shall encourage co- and/or self-regula-
tory regimes at national level in the fields coordinated by
this Directive to the extent permitted by their legal systems.
These regimes shall be such that they are broadly accepted
by the main stakeholders in the Member States concerned
and provide for effective enforcement.

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8.
Directive 2000/31/EC shall apply unless otherwise
provided for in this Directive. In the event of a conflict
between a provision of Directive 2000/31/EC and a provi-
sion of this Directive, the provisions of this Directive shall
prevail, unless otherwise provided for in this Directive.’;

6. Article 3a shall be deleted;

7. the following Chapter shall be inserted:

‘CHAPTER IIa

(b) audiovisual commercial communications shall not use

subliminal techniques;

(c) audiovisual commercial communications shall not:

(i) prejudice respect for human dignity;

(ii) include or promote any discrimination based on
sex, racial or ethnic origin, nationality, religion or
belief, disability, age or sexual orientation;

Provisions applicable to all audiovisual media services

(iii) encourage behaviour prejudicial to health or safety;

Article 3a

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

(a) the name of the media service provider;

(b) the geographical address at which the media service

provider is established;

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

(d) where applicable, the competent regulatory or supervi-

sory bodies.

Article 3b

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

Article 3c

Member States shall encourage media service providers
under their jurisdiction to ensure that their services are
gradually made accessible to people with a visual or hearing
disability.

Article 3d

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

(iv) encourage behaviour grossly prejudicial

to the

protection of the environment;

(d) all forms of audiovisual commercial communications
tobacco products shall be

for cigarettes and other
prohibited;

(e) audiovisual commercial communications for alcoholic
beverages shall not be aimed specifically at minors and
shall not encourage immoderate consumption of such
beverages;

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

(g) audiovisual

commercial

communications

shall not
cause physical or moral 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.

accompanying

2. Member States and the Commission shall encourage
media service providers
to develop codes of conduct
regarding inappropriate audiovisual commercial communi-
cation,
children's
or
programmes, of foods and beverages containing nutrients
and substances with a nutritional or physiological effect, in
particular those such as fat, trans-fatty acids, salt/sodium
and sugars, excessive intakes of which in the overall diet are
not recommended.

included

in

Article 3e

Article 3f

1. Member States shall ensure that audiovisual commer-
cial communications provided by media service providers
under their jurisdiction comply with the following require-
ments:

(a) audiovisual

commercial

shall be
readily recognisable as such. Surreptitious audiovisual
commercial communication shall be prohibited;

communications

Audiovisual media services or programmes that are

1.
sponsored shall meet the following requirements:

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

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(b) they shall not directly encourage the purchase or rental
in particular by making special

of goods or services,
promotional references to those goods or services;

(c) viewers shall be clearly informed of the existence of a
sponsorship agreement. Sponsored programmes shall
be clearly identified as such by the name, logo and/or
any other symbol of the sponsor such as a reference to
its product(s) or service(s) or a distinctive sign thereof
in a appropriate way for programmes at the beginning,
during and/or the end of the programmes.

Audiovisual media services or programmes shall not
2.
be sponsored by undertakings whose principal activity is
the manufacture or sale of cigarettes and other tobacco
products.

3.
The sponsorship of audiovisual media services or
programmes by undertakings whose activities include the
manufacture or sale of medicinal products and medical
treatment may promote the name or the image of
the
shall not promote specific medicinal
undertaking, but
products or medical treatments available only on prescrip-
tion in the Member State within whose jurisdiction the
media service provider falls.

News and current affairs programmes shall not be
the
children's

4.
sponsored. Member States may choose to prohibit
showing
programmes, documentaries and religious programmes.

sponsorship

during

logo

of

a

(c) they shall not give undue prominence to the product in

question;

(d) viewers shall be clearly 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
in order to avoid
resumes after an advertising break,
any confusion on the part of the viewer.

By way of exception, Member States may choose to waive
the requirements set out in point (d) provided that the
programme in question has neither been produced nor
commissioned by the media service provider itself or a
company affiliated to the media service provider.

In any event programmes shall not contain product

3.
placement of:

— tobacco products or cigarettes or product placement
from undertakings whose principal activity is the manu-
facture or sale of cigarettes and other tobacco products,
or

— specific medicinal products or medical treatments avail-
able only on prescription in the Member State within
whose jurisdiction the media service provider falls.

The provisions of paragraphs 1, 2 and 3 shall apply

4.
only to programmes produced after … (*).’;

Article 3g

1.

Product placement shall be prohibited.

‘CHAPTER IIb

8. the following Chapter shall be inserted:

2.
By way of derogation from paragraph 1, product
placement shall be admissible, unless a Member State
decides otherwise:

— in cinematographic works, films and series made for
audiovisual media services, sports programmes and
light entertainment programmes, or

— where there is no payment but only the provision of
certain goods or services free of charge, such as produc-
tion props and prizes, with a view to their inclusion in
a programme.

Provisions applicable only to on-demand audiovisual
media services

Article 3h

Member States shall take appropriate measures to ensure
that on-demand audiovisual media services provided by
media service providers under
jurisdiction which
might seriously impair the physical, mental or moral devel-
opment of minors are only made available in such a way
that ensures that minors will not normally hear or see such
on-demand audiovisual media services.

their

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

Article 3i

Programmes that contain product placement shall meet at
least all of the following requirements:

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

(b) they shall not directly encourage the purchase or rental
in particular by making special

of goods or services,
promotional references to those goods or services;

1. Member States shall ensure that on-demand audiovi-
sual media 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 finan-
cial 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 offered by the on-demand audiovisual media
service.

(*) Two years from the date of entry into force of this Directive.

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2. Member States shall report to the Commission no
later than… (*) and every four years thereafter on the
implementation of paragraph 1.

3.
The Commission shall, on the basis of the informa-
tion 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.’;

9. the following Chapter shall be inserted:

‘CHAPTER IIc

Provisions concerning exclusive rights and short news
reports in television broadcasting

Article 3j

1.
Each Member State may take measures in accordance
with Community law to ensure that broadcasters under its
jurisdiction do not broadcast on an exclusive basis events
which are regarded by that Member State as being of major
importance for society in such a way as to deprive a
substantial proportion of the public in that Member State
of the possibility of following such events by live coverage
or deferred coverage on free television. If it does so, the
Member State concerned shall draw up a list of designated
events, national or non-national, which it considers to be
of major importance for society. It shall do so in a clear
and transparent manner in due time.
In so doing the
Member State concerned shall also determine whether these
events should be available by whole or partial live coverage,
or where necessary or appropriate for objective reasons in
the public interest, whole or partial deferred coverage.

shall

the Commission shall

immediately notify to the
2. Member States
Commission any measures taken or to be taken pursuant to
paragraph 1. Within a period of three months from the
notification,
such
measures are compatible with Community law and commu-
nicate them to the other Member States. It shall seek the
opinion of the contact committee established pursuant to
Article 23a. It shall forthwith publish the measures taken in
the Official Journal of the European Union and at least once a
year
taken by
Member States.

the consolidated list of

the measures

verify

that

3. Member States shall ensure, by appropriate means
within the framework of their legislation, that broadcasters
under their jurisdiction do not exercise the exclusive rights
purchased by those broadcasters following the date of
publication of this Directive in such a way that a substantial
proportion of
the public in another Member State is
deprived of the possibility of following events which are
designated by that other Member State in accordance with
paragraphs 1 and 2 by whole or partial live coverage or,
where necessary or appropriate for objective reasons in the
public interest, whole or partial deferred coverage on free
television as determined by that other Member State in
accordance with paragraph 1.

(*) Four years from the date of entry into force of this Directive.

Article 3k

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

If

another broadcaster

same
2.
Member State as
seeking access has
the broadcaster
acquired exclusive rights to the event of high interest to the
public, access shall be sought from that broadcaster.

established in the

3. Member States shall ensure that such access is guaran-
teed by allowing broadcasters to freely choose short extracts
from the transmitting broadcaster's signal with, unless
impossible for reasons of practicality, at least the identifica-
tion of their source.

As an alternative to paragraph 3, Member States may
4.
establish an equivalent system which achieves access on a
fair, reasonable and non-discriminatory basis through other
means.

5.
Short extracts shall be used solely for general news
programmes and may be used in on-demand audiovisual
media services only if the same programme is offered on a
deferred basis by the same media service provider.

6. Without prejudice to paragraphs 1 to 5, Member
States shall ensure, in accordance with their legal systems
and practices, that the modalities and conditions regarding
the provision of such short extracts are defined, in particu-
lar, any compensation arrangements, the maximum length
of short extracts and time limits regarding their transmis-
sion. Where compensation is provided for,
it shall not
exceed the additional costs directly incurred in providing
access.’;

10.

in Article 4(1),
Article 6,’ shall be deleted;

the phrase ‘, within the meaning of

11. Articles 6 and 7 shall be deleted;

12. the title of Chapter IV shall be replaced by the following:

‘Television advertising and teleshopping’;

13. Article 10 shall be replaced by the following:

‘Article 10

1.
Television advertising and teleshopping shall be
readily recognisable and distinguishable from editorial
content. Without prejudice to the use of new advertising
techniques, television advertising and teleshopping shall be
kept quite distinct from other parts of the programme by
optical and/or acoustic and/or spatial means.

2.
Isolated advertising and teleshopping spots, other
than in transmissions of sports events, shall remain the
exception.’;

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14. Article 11 shall be replaced by the following:

22. Article 20 shall be replaced by the following:

‘Article 11

‘Article 20

1. Member States shall ensure, where television adver-
tising or teleshopping is inserted during programmes, that
the integrity of
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.

the programmes,

Without prejudice to Article 3, Member States may, with
due regard for Community law, lay down conditions other
than those laid down in Article 11(2) and Article 18 in
television broadcasts intended solely for the
respect of
territory which cannot be received, directly or
national
indirectly by the public,
in one or more other Member
States.’;

for

The

films made

transmission of

television
2.
(excluding series, serials and documentaries), cinemato-
graphic works and news programmes may be interrupted
by television advertising and/or teleshopping once for each
scheduled period of at least thirty minutes. The transmis-
sion of children's programmes may be interrupted by televi-
sion advertising and/or teleshopping once for each sched-
uled period of at least thirty minutes, provided that the
scheduled duration of the programme is greater than thirty
minutes. No television advertising or teleshopping shall be
inserted during religious services.’;

15. Articles 12 and 13 shall be deleted;

16. Article 14(1) shall be deleted;

17. Articles 16 and 17 shall be deleted;

18. Article 18 shall be replaced by the following:

23. the title of Chapter V shall be replaced by following:

‘Protection of minors in television broadcasting’;

24. Articles 22a and 22b shall be deleted;

25. the title of Chapter VI shall be replaced by the following:

‘Right of reply in television broadcasting’;

26.

in Article 23a,
following:

(2), point

(e) shall be replaced by the

‘(e) to facilitate the exchange of information between the
Member States and the Commission on the situation
and the development of regulatory activities regarding
audiovisual media services,
the
Community's audiovisual policy, as well as relevant
developments in the technical field;’;

taking account of

‘Article 18

27. the following Chapter shall be inserted:

The proportion of

television advertising spots and
1.
teleshopping spots within a given clock hour shall not
exceed 20 %.

‘CHAPTER VIb

Paragraph 1 shall not apply to announcements made
2.
by the broadcaster in connection with its own programmes
and ancillary products directly derived from those
programmes,
sponsorship announcements and product
placements.’;

19. Article 18a shall be replaced by the following:

Cooperation between Member States' regulatory bodies

Article 23b

Member States shall take appropriate measures to provide
each other and the Commission with the information
necessary for the application of the provisions of this Direc-
tive,
in particular Articles 2, 2a and 3 thereof, notably
through their competent independent regulatory bodies.’;

‘Article 18a

Teleshopping windows shall be clearly identified as such by
optical and acoustic means and shall be of a minimum
uninterrupted duration of fifteen minutes.’;

28. Articles 25 and 25a shall be deleted;

29. Article 26 shall be replaced by the following:

20. Article 19 shall be replaced by the following:

‘Article 26

‘Article 19

The provisions of this Directive shall apply mutatis mutandis
to television channels exclusively devoted to advertising and
teleshopping as well as to television channels exclusively
devoted to self-promotion. Chapter III as well as Article 11
and Article 18 shall not apply to these channels.’;

Not later than… (*), and every three years thereafter, the
Commission shall submit to the European Parliament, the
Council and the European Economic and Social Committee
a report on the application of this Directive and, if neces-
sary, make further proposals to adapt it to developments in
the field of audiovisual media services, in particular in the
light of recent technological developments, the competitive-
ness of the sector and levels of media literacy in all Member
States.

21. Article 19a shall be deleted;

(*) Four years from the date of entry into force of this Directive.

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This report shall also assess the issue of television adver-
tising accompanying or included in children's programmes,
and in particular whether the quantitative and qualitative
rules contained in this Directive have afforded the level of
protection required.’.

Article 2

Regulation (EC) No 2006/2004 of the European Parliament and
of the Council of 27 October 2004 on cooperation between
national
enforcement of
responsible
consumer protection laws (1) is hereby amended as follows:

authorities

the

for

When Member States adopt those provisions, they shall contain
a reference to this Directive or be accompanied by such a refer-
ence on the occasion of their official publication. The methods
of making such references shall be laid down by Member States.

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

Article 4

— Point 4 of Annex ‘Directives and Regulations covered by

Article 3(a)’ shall be replaced by the following:

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

‘4. Directive 89/552/EEC of 3 October 1989 of

the
European Parliament and of the Council on the coordi-
nation of certain provisions laid down by law, regulation
or administrative action in Member States concerning
the provision of audiovisual media services (Audiovisual
Media Services Directive) (2): Articles 3h and 3i and Arti-
cles 10 to 20. Directive as last amended by Directive
2007/…/EC (*).

Article 5

This Directive is addressed to the Member States.

(*) OJ L …’.

Article 3

Done at …

1. Member States shall bring into force the laws, regulations
and administrative provisions necessary to comply with this
Directive by … (*) at the latest. They shall forthwith inform the
Commission thereof.

For the European Parliament

The President

…

For the Council

The President

…

(1) OJ L 364, 9.12.2004, p. 1. Regulation as amended by Directive

2005/29/EC.

(2) OJ L 298, 17.10.1989, p.23.
(*) Two years from the date of entry into force of this Directive.

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STATEMENT OF THE COUNCIL'S REASONS

I. INTRODUCTION

The Commission adopted its proposal on 13 December 2005.

The European Parliament adopted its opinion in first reading at its plenary session of 11-14 Decem-
ber 2006.

The Commission adopted an amended proposal on 29 March 2007.

On 15 October 2007 the Council adopted its common position in accordance with Article 251 of the
Treaty.

In carrying out its work, the Council also took account of the opinions of the European Economic and
Social Committee and the Committee of the Regions adopted on 13 September 2006 and 11 October
2006 respectively.

II. ANALYSIS OF THE COMMON POSITION

The common position reflects the outcome of informal contacts between the Parliament, the Commis-
sion and the Council as foreseen by paragraphs 16 to 18 of the Joint Declaration on Practical Arrange-
ments for the Co-decision Procedure.

Although the common position contains some significant changes with regard to the Commission's
initial proposal, both in structure and substance, the basic approach proposed by the Commission, as
well as all the principal elements contained in its proposal, have been retained. The most significant
changes are set out in Sections A and B below.

A. STRUCTURAL CHANGES

The Commission proposed a new two-tier regulatory architecture comprising a core of rules applicable
to all audiovisual media services and an additional layer of obligations applicable only to television
broadcasting. The common position retains this basic philosophy but introduces significant structural
changes (introducing new Chapters and reordering certain Articles) to ensure that obligations applicable
to all service providers are grouped separately from those applicable only to on-demand services, which
are in turn grouped separately from those applicable only to televisions broadcasting. These structural
changes greatly improve the readability and legal clarity of the text.

B. SUBSTANTIVE CHANGES

(i) Scope (Article 1, points (a) to (e), Article 3(8) (1), Recitals 2, 13, 14, 16-25)

Relevant European Parliament amendments: 2, 15, 16, 18, 213, 20, 22, 23, 24, 25, 26, 27, 41, 51, 57, 66,
67, 68, 205, 77, 79, 92

The common position clarifies the extension to the scope of the Directive proposed by the Commission.
The underlying philosophy is set out in Recitals 16 to 25. The most significant change to the Commis-
sion's proposal in this regard is the introduction of the notion of a ‘programme’, whilst the notion of
‘editorial responsibility’ has also been emphasised further. The common position has also sought to
bring legal clarity regarding the relationship of the Directive with other legal instruments, in particular
Directive 2000/31/EC (the eCommerce Directive).

(1) The Article numbering is that of Directive 89/552/EEC as amended by this Directive.

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(ii) Jurisdiction and free movement of services (Articles 2, 2a and 3, Recitals 27 to 35)

Relevant European Parliament amendments: 10, 14, 29, 30, 32, 33, 34, 35, 80, 81, 82, 199, 84, 85, 220,
221, 222, 89, 90

The common position supports the basic approach of the Commission's proposal, i.e. that jurisdiction
should continue to be determined on the basis of the establishment of the service provider (country of
origin principle) but that there should be a mechanism for dealing with cases where a television broad-
cast is directed wholly or mostly towards a Member State other than the one where the broadcaster is
established. The common position text (Article 3) develops the mechanism proposed by the Commis-
sion, creating a first ‘cooperation’ phase, where mutually acceptable solutions are sought between the
Member States involved, followed by a second ‘circumvention’ phase where in certain well-defined cases
binding measures can be taken. This second phase, to which a Community procedure containing a
number of conditions is attached, effectively seeks to codify in secondary legislation existing case law of
the Court of Justice.

On the related question of free movement of services, and measures derogating from that principle,
Article 2a of the common position maintains the legal status quo. With regard to on-demand services,
the conditions and procedures for derogation (for a number of public policy reasons, including the need
to protect minors) are exactly those of the eCommerce Directive 2000/31/EC.

(iii) Co- and self-regulation (Article 3(7) and Recital 36)

Relevant European Parliament amendments: 36, 37, 78, 91

The common position recognises the important role of such ‘soft law’ by including in Article 3(7) an
obligation on Member States to encourage co- and/or self-regulatory regimes to the extent permitted by
their legal systems.

(iv) Product placement (Article 1(m), Article 3g, Recitals 60 to 63)

Relevant European Parliament amendments: 56, 219, 61, 62, 72, 75, 76, 227, 133

The common position establishes
the principle that product placement be prohibited for all
programmes produced after the transposition deadline for the Directive. However, exemptions to this
principle are provided for certain types of programme (films, series, sports and light entertainment)
subject to certain conditions. These exemptions will apply automatically unless a Member State opts out
of them. The requirement to identify product placement at the moment that a programme resumes
after an advertising break has also been added, and the specific case of ‘thematic placement’ has been
addressed in Recital 63.

(v) Other provisions on advertising, including that aimed at children (Articles 1, points (h) to (l), 3e,

3f, 10, 11, 18, 18a, 19, 20, Recitals 26, 52, 54 to 59)

Relevant European Parliament amendments: 28, 58, 59, 70, 71, 73, 74, 110, 189, 200, 112, 113, 114,
115, 116, 117, 225, 226, 120, 121, 122, 123, 124, 125, 134, 138, 228, 208, 202, 229, 143, 144

‘qualitative’

The common position essentially follows the philosophy of the Commission proposal, whereby a core
of
rules on audiovisual commercial communication are applied to all audiovisual
media services, whilst the ‘quantitative’ rules, which apply only to television broadcasting, have been
simplified and streamlined compared to the rules of the existing Directive, with a view to creating a
regulatory environment in which the ‘free-to-air’ broadcasting model can continue to compete with
subscription-based television channels.

The common position ensures additional protection for children. Article 3e(2) requires Member States
and the Commission to encourage the development of codes of conduct regarding advertising of ‘junk
food’ aimed at children, whilst the quantitative rules on interruption of programmes in Article 11(2) are
stricter for children's programmes.

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(vi) Short news reports (Article 3k, Recitals 38 to 40)

Relevant European Parliament amendments: 21, 218, 223, 224, 207, 97, 98

The Commission proposed a provision seeking to ensure the non-discriminative application of national
systems aimed at guaranteeing, for the purpose of short news reports, broadcasters' access to events of
high interest to the public. The common position text is more ambitious, in that it creates an obligation
on Member States to establish such a system, thus in effect creating a Community-wide right. The key
aspects of this right are harmonised by the text, whilst the detailed modalities and conditions of its
application are left to Member States to decide in accordance with the principle of subsidiarity.

(vii) Regulatory authorities (Article 23b, Recitals 65 and 66)

Relevant European Parliament amendments: 13, 63, 147, 148, 149

The common position text reflects a sensitive compromise between the European Parliament and the
Council on this issue. The heart of this compromise is found in the new Article 23b dealing with
cooperation and the exchange of information.

(viii) Protection of minors (Article 3h, Recitals 44 to 47)

Relevant European Parliament amendments: 46, 47, 100, 101, 103, 14, 105, 145, 146

Whilst leaving the current provisions applicable to television broadcasting intact, the common position
adds an obligation with regard to on-demand audiovisual media services. The obligation envisages that
minors are protected by ensuring that are not normally able to access services which might seriously
impair their physical, mental or moral development. The recitals refer to filtering systems and PIN codes
as examples of measures that could be used. The recitals also draw attention to the Recommendation of
the European Parliament and the Council of 20 December 2006 on the protection of minors and
human dignity and on the right to reply.

(ix) European Works (Article 3i and Recitals 48 to 50)

Relevant European Parliament amendments: 49, 214, 52, 53, 108, 109, 137, 150

The provisions of the existing Directive applicable to television broadcasting are left untouched by the
common position, although Recital 49 does recall the content of Recital 31 of the previous revision
(Directive 97/36/EC) regarding ‘independent producers’. With regard to on-demand audiovisual media
services, however, media service providers have a new obligation to promote production of and access
to European works.

(x) Access of disabled persons to services (Article 3c)

Relevant European Parliament amendments: 43, 65, 135

The common position contains an obligation on Member States to encourage service providers to
ensure that their services are gradually made accessible to people with a visual or hearing disability.

(xi) Media literacy (Article 26, Recitals 37)

Relevant European Parliament amendments: 5, 8, 39, 45, 54, 93, 150

Recital 37 underlines the vital role of media literacy and also recalls the Recommendation of the
European Parliament and the Council of 20 December 2006 which contains significant content relating
to media literacy. According to Article 26, the Commission is now required, as part of its reporting obli-
gations and when deciding on future proposals for adaptations of the Directive, to pay particular atten-
tion to media literacy levels in Member States.

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(xii) Right of reply (Recital 53)

Relevant European Parliament amendments: 55, 136

The existing obligations relating to television broadcasting (Article 23) remain untouched. Recital 53
explains that the right of reply could also be applied as a legal remedy in the online environment and
recalls the Recommendation on the protection of minors and human dignity and on the right to reply.

III. CONCLUSION

The common position, the result of
informal negotiations between the European Parliament, the
Council and the Commission, maintains the approach and legal architecture proposed by the Commis-
sion with a view to adapting the regulation of the audiovisual sector to market and technological
change. Important clarifications have been made to the scope of the Directive and to the provisions
dealing with jurisdiction, and a number of other important adjustments have been made, including on
sensitive questions such as product placement, advertising (particularly to children), extracts for short
news reports, regulatory authorities and access of disabled persons to services.