Communication from the Commission to the European Parliament pursuant to the second subparagraph of Article 251(2) of the EC Treaty concerning the Common Position of the Council on the adoption of a proposal for a Directive of the European Parliament and of the Council amending Council Directive 89/552/EEC on the coordination of certain provisions laid down by law, regulation or administrative Action in Member States concerning the pursuit of television broadcasting activities (Audiovisual Media Services Directive)
Date: 2007-10-18
Institutions: European Commission
Subjects: advertising, approximation of laws, audiovisual production, broadcasting, child protection, freedom to provide services, right of establishment

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COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 18.10.2007 
COM(2007) 639 final 

2005/0260 (COD) 

COMMUNICATION FROM THE COMMISSION 
TO THE EUROPEAN PARLIAMENT 

pursuant to the second subparagraph of Article 251(2) of the EC Treaty 

concerning the 

Common Position of the Council on the adoption of a proposal for a Directive of the 
European Parliament and of the Council amending Council Directive 89/552/EEC on 
the coordination of certain provisions laid down by law, regulation or administrative 
Action in Member States concerning the pursuit of television broadcasting activities 
(Audiovisual Media Services Directive) 

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   EN 

 
 
 
  
 
 
2005/0260 (COD) 

COMMUNICATION FROM THE COMMISSION 
TO THE EUROPEAN PARLIAMENT 

pursuant to the second subparagraph of Article 251(2) of the EC Treaty 

concerning the 

Common Position of the Council on the adoption of a proposal for a Directive of the 
European Parliament and of the Council amending Council Directive 89/552/EEC on 
the coordination of certain provisions laid down by law, regulation or administrative 
Action in Member States concerning the pursuit of television broadcasting activities 
(Audiovisual Media Services Directive) 

1. 

BACKGROUND 

Date of transmission of the proposal to the European Parliament and 
the Council [(document COM(2005) 646 -2005/0260(COD)]: 

15 December 2005 

Date  of  the  opinion  of  the  European  Economic  and  Social 
Committee: 

13 September 2006 
[CESC 1178/2006] 

Date of the opinion of the European Parliament, first reading: 

13 December 2006 

Date of transmission of the amended proposal: 

Date of adoption of the Common Position: 

29 March 2007 

15 October 2007 

2. 

OBJECTIVE OF THE COMMISSION PROPOSAL 

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

3. 

COMMENTS ON THE COMMON POSITION 

3.1 

General Comment on Common Position 

The (political agreement on the) Common Position is, in substance and to a large extent, in 
line with the Commission's proposal and therefore can be supported fully. This is especially 
true for rules on scope, commercial communication, product placement, short reports, media 
pluralism, media literacy and co-regulation.  

3.2 

Agreement at Common Position Stage 

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The Common Position is the result of intense inter-institutional negotiations. The Chair of the 
CULT  Committee,  Mr  Nikolaos  Sifunakis,  confirmed  the  agreement  in  a  letter  of  21  May 
2007 to Dr. P. Witt, President of the COREPER. 

At the Council meeting on 24 May, the Commission took note with satisfaction that the co-
legislators made the choice not to modify the rules that define the place of establishment of a 
media  service  provider  in  Article  2  and  reaffirmed  the  right  of  a  broadcaster  to  offer  its 
services  in  the  Internal  market  from  the  country  of  establishment  he  chooses.  As  concerns 
stricter national rules (Article 3), the Audiovisual Media Services Directive provides a new 
procedure regarding broadcasters possibly circumventing the stricter rules of a Member State 
having availed itself of the faculty to adopt such rules that are compatible with Community 
law.  

The Commission is confident that the first stage of the procedure, consisting of cooperation 
between  the  Member  States  concerned  on  a  "best  endeavours"  basis,  will  enable  most 
difficulties  to  be  solved  at  an  early  stage.  Should  the  non-binding  cooperation  stage  fail,  a 
second,  formal  stage  would  begin,  where  the  European  Commission  would  play  its  role 
according  to  the  new  procedure  set  in  place,  which  is  to  examine  the  compatibility  of  the 
Member  State's  proposed  measures  with  Community  law.  If  the  proposed  measures  are 
deemed  by  the  Commission  not  to  be  compatible  with  Community  Law,  the  Member  State 
concerned  must  refrain  from  taking  them.  The  Commission  considers  that  these  procedural 
provisions safeguard the "country of establishment" principle. 

With  regard  to  short  reporting  for  general  new  purposes  the  compromise  provision  is 
acceptable  for  the  Commission.  On  compensation  the  compromise  wording  reads:  "Where 
compensation  is  provided  for,  it  shall  not  exceed  the  additional  costs  directly  incurred  in 
providing access." This wording was chosen to ensure that the right to short reporting can not 
be  read  as  compulsory  license  which  would  have  given  the  receiving  broadcasters  wider 
rights.  This  solution  is  largely  supported  by  all  stakeholders,  broadcasters  as  well  as  rights 
owners.  

As regards the ban on discrimination in audiovisual commercial communications, Article 
3d(1)  c)  of  the  common  position,  the  Council  accepted,  in  response  to  Parliament's  request, 
that  the  compromise  text  should  refer  to  all  the  categories  of  discrimination  mentioned  in 
Article 13 of the Treaty and read "must not include or promote ---". This is acceptable for the 
Commission. 

With  regard  to  the  independence  of  regulatory  authorities  the  Presidency  proposed  a 
reference in a recital referring to the faculty for Member States to create independent national 
regulatory  bodies.  These  should  be  independent  from  national  governments  as  well  as  from 
operators. The EP and the Commission found it necessary that the reference to such bodies be 
included  in  the  operative  part  of  the  Directive.  The  compromise  in  Article  23b,  which  is 
acceptable  to  the  Commission,  reads:  "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  Directive,  in  particular  Articles  2,  2a  and  3  thereof,  notably  through 
their competent independent regulatory bodies."1 

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Original Commission Proposal (Art. 23b.): 
“1. Member States shall guarantee the independence of national regulatory authorities and ensure that 
they exercise their powers impartially and transparently. 2. National regulatory authorities shall provide 

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4. 

CONCLUSION 

The  Common  Position  meets  the  aims  of  the  Commission's  initial  and  modified  proposals. 
The Commission therefore supports the text. 

each other and the Commission with the information necessary for the application of the provisions of 
this Directive.” 

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