Directive 2007/65/EC of the European Parliament and of the Council of 11 December 2007 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: 2007-12-11
Institutions: Council of the European Union, European Parliament
Subjects: access to information, advertising, approximation of laws, audiovisual industry, broadcasting, dissemination of information, provision of services, regulation of telecommunications, right of establishment, television

18.12.2007

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Official Journal of the European Union

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DIRECTIVES

DIRECTIVE 2007/65/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

of 11 December 2007

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)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE
EUROPEAN UNION,

Having regard to the Treaty
Community, and in particular Articles 47(2) and 55 thereof,

establishing the European

Having regard to the proposal from the Commission,

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

(2)

Having regard to the opinion of
Regions (2),

the Committee of

the

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

(3)

Whereas:

of
the
the regulatory framework to take account of
impact of structural change, the spread of information
and communication technologies (ICT) and technological
developments
the
on business models,
financing of commercial broadcasting, and to ensure
optimal
legal
certainty for Europe’s information technologies and its
media industries and services, as well as respect
for
cultural and linguistic diversity.

competitiveness

conditions

especially

and

of

are

already

activities

The laws, regulations and administrative measures in
Member States concerning the pursuit of
television
broadcasting
coordinated by
Directive 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
movement of
services within the European
Community and may distort competition within the
internal market.

those

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 appli-
cation of specific rules to these services.

(1)

Council Directive 89/552/EEC (4)
certain
provisions laid down by law, regulation or administrative
action in Member States concerning the pursuit of broad-
casting activities. However, new technologies in the trans-
mission of audiovisual media services call for adaptation

coordinates

(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 (not yet
published in the Official Journal), Council Common Position of 15
October 2007 (not yet published in the Official Journal), Position of
the European Parliament of 29 November 2007.

(4) Council Directive 89/552/EEC of 3 October 1989 on the coordi-
nation of certain provisions laid down by Law, Regulation or
Administrative Action in Member States concerning the pursuit of
television broadcasting 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).

(4)

(5)

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.

In its resolutions of 1 December 2005 (5) and 4 April
2006 (6) 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

(5) OJ C 285 E, 22.11.2006, p. 126.
(6) OJ C 293 E, 2.12.2006, p. 155.

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Official Journal of the European Union

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in particular

In its resolution of 27 April 2006 (1),

the GATS nego-
excluded from liberalisation under
the
tiations.
European Parliament supported the Unesco Convention
on the Protection and Promotion of the Diversity of
that
Cultural Expressions, which states
‘cultural activities, goods and services have both an
economic and a cultural nature, because they convey
identities, values and meanings, and must therefore not
solely having commercial value’. The
be treated as
Council Decision 2006/515/EC of 18 May 2006 on
the Convention on the Protection
the conclusion of
and
Cultural
of
Expressions (2) approved the Unesco Convention on
behalf of the Community. The Convention entered into
force on 18 March 2007. This Directive respects the
principles of that Convention.

the Diversity

Promotion

of

(9)

(10)

and

stimulate

Traditional audiovisual media services — such as tele-
vision — and emerging on-demand audiovisual media
services offer significant employment opportunities in
the Community, particularly in small and medium-sized
enterprises,
and
investment. Bearing in mind the importance of a level
playing-field and a true European market for audiovisual
media services,
the internal
market, such as free competition and equal treatment,
should be respected in order to ensure transparency
and predictability in markets
for audiovisual media
services and to achieve low barriers to entry.

the basic principles of

economic

growth

(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
is therefore
on-demand audiovisual media services.
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
broadcasting (i.e.
linear audiovisual media services) and
on-demand audiovisual media services (i.e. non-linear
audiovisual media services). The basic principles of
Directive 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
audiovisual policy,
in which it stressed that regulatory
policy in that sector has to safeguard certain public

(1) OJ C 296 E, 6.12.2006, p. 104.
(2) OJ L 201, 25.7.2006, p. 15.

interests, such as cultural diversity, the right to infor-
mation, 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

service broadcasting (3)

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

reaffirmed

that

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 strategy designed to encourage
the production of European content, the development of
the digital economy and the uptake of ICT, against the
background of the convergence 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
framework for
information society services and media services by
modernising
audiovisual
services, starting with a Commission proposal in 2005
to modernise the Television without Frontiers Directive
and transform it into a Directive on Audiovisual Media
Services. The goal of the i2010 initiative will 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.

internal market

framework

legal

the

for

(11)

The European Parliament adopted on 4 September
2003 (4), 22 April 2004 (5) and 6 September 2005 (6)
resolutions which called for the adaptation of Directive
89/552/EEC to reflect structural changes and techno-
logical 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 tele-
vision broadcasting.

(3) OJ C 30, 5.2.1999, p. 1.
(4) European Parliament

resolution on Television without Frontiers

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

(5) 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).

(6) 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, for the period 2001-2002 (OJ
C 193 E, 17.8.2006, p. 117).

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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.

information in the

This Directive should not affect
the obligations on
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
provision of
technical
standards and regulations (2) and of rules on Information
Society services. Accordingly, draft national measures
applicable 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 procedural obligations established under Article 8 of
Directive 98/34/EC.

field of

(17)

(18)

(14) Directive 2002/21/EC of the European Parliament and of
the Council of 7 March 2002 on a common regulatory
framework for electronic communications networks and
services (Framework Directive) (3) according to its Article
1(3)
taken at
Community or national level, to pursue general interest
objectives, in particular relating to content regulation and
audiovisual policy.

is without prejudice

to measures

i.e.

that

that

is characteristic of on-demand audiovisual media
It
they are ‘television-like’,
services
they
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
In the
light of
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 broad-
casting.

this and in order

this Directive.

and

public,

For the purposes of this Directive, the definition of an
audiovisual media service should cover mass media in
function to inform, entertain and educate the
their
general
audiovisual
should
include
should exclude any
commercial communication but
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
i.e. where any audiovisual
provision of programmes,
content is merely incidental to the service and not its
principal purpose. Examples include websites that contain
audiovisual elements only in an ancillary manner, such as
animated graphical elements, short advertising spots or
information related to a product or non-audiovisual
service. For these reasons, games of chance involving a
stake representing 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.

(15) No provision of

should require or
this Directive
encourage Member States to impose new systems of
licensing or administrative authorisation on any type of
audiovisual media service.

(19)

For the purposes 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.

(16)

that

For the purposes of this Directive, the definition of an
audiovisual media service should cover only audiovisual
media services, whether television broadcasting or on-
demand, which are mass media,
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 enter-
prises, but should not cover activities which are primarily
non-economic and which are not in competition with
television broadcasting, such as private websites and
services consisting of the provision or distribution of
audiovisual content generated by private users for the
purposes of sharing and exchange within communities
of interest.

(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. Directive as amended by Regulation

(EC) No 717/2007 (OJ L 171, 29.6.2007, p. 32).

(20)

is

example,

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

this Directive should apply to each of

the requirements of

(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
the provision of
service
an audiovisual media
is
the definition of such a service should
programmes,
also cover
text-based content which accompanies
programmes, such as subtitling services and electronic
programme
services
Stand-alone
this Directive,
should not
which should not affect Member States’
freedom to
regulate such services at national
in accordance
with the Treaty.

guides.
fall within the scope of

text-based

level

for

the definition of

for
The notion of editorial responsibility is essential
the media service provider and
defining the role of
therefore
audiovisual media
services. Member States may further specify aspects of
the definition 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 estab-
lished in Directive 2000/31/EC of
the European
the Council of 8 June 2000 on
Parliament and of
certain legal aspects of information society services,
in
particular electronic commerce,
in the Internal Market
(Directive on electronic commerce) (1).

(24)

In the context of television broadcasting, the notion of
simultaneous viewing should also cover quasi-simul-
taneous viewing because of the variations in the short
time lag which occurs between the transmission and the
reception of
reasons
inherent in the transmission process.

the broadcast due to technical

(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 communi-
cation should be introduced in this Directive, which
service
however
not
announcements and charity appeals broadcast
free of
charge.

include

should

public

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
for new business models and the
necessary basis
deployment of
in
such services.
order to ensure the free flow of information and audio-
visual programmes in the internal market.

is also essential

It

(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 audio-
infor-
visual media service provider and pluralism of
mation should be a fundamental principle of
the
European Union.

satellite programmes, mean that

Technological developments, especially with regard to
digital
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 funda-
mental right
to freedom of establishment. Therefore,
media service providers should in general be free to
choose the Member States in which they establish them-
selves. 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
the territory of
wholly or mostly directed towards
for Member
another Member State, a requirement
States to cooperate with one another and,
in cases of
circumvention, the codification of the case-law of the
Justice (3), combined with a more efficient
Court of
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 developed by the Court of Justice in its case law
the Treaty and
in relation to Articles 43 and 49 of
of
includes,
protection
the
alia,
and cultural
consumers,
cooperation
policy. The Member
should ensure
in
rules
question are objectively necessary, applied in a non-
discriminatory manner, and proportionate.

rules
the protection of minors
requesting
State
specific national

inter

that

the

on

(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
subscription revenues, the main language of the service
or the existence of programmes or commercial commu-
nications 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 on 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 on 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.

(37)

(36)

the relevant

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 necessary, in particular, in order to establish whether
legislation is preferable for
sector and
problem, or whether alternatives such as co-regulation
or self-regulation should be considered. Furthermore,
experience has shown that both co- and self-regulation
instruments,
implemented in accordance with the
different legal traditions of the Member States, can play
an important role in delivering a high level of consumer
protection. Measures aimed at achieving public interest
objectives in the emerging audiovisual media services
sector are more effective if
they are taken with the
active support of the service providers themselves.

economic operators,

self-regulation constitutes a type of voluntary
Thus
initiative which enables
social
partners, non-governmental organisations or associations
to adopt common guidelines amongst themselves and for
themselves. Member States should,
in accordance with
their different legal traditions, recognise the role which
effective self-regulation can play as a complement to the
legislative and judicial and/or administrative mechanisms
in place and its useful contribution to the achievement of

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

the objectives of this Directive. However, while self-regu-
imple-
lation might be a complementary method of
it should
menting certain provisions of this Directive,
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 of
State intervention in the event of its objectives not being
met. Without prejudice to Member States’ formal obli-
gations 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.

‘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 oppor-
tunities offered by new communications technologies.
They are better able to protect
themselves and their
families from harmful or offensive material. Therefore
the development of media literacy in all sections of
society should be promoted and its progress followed
closely.

and on-line

information services

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 audio-
industry (2)
visual
for
already contains a series of possible measures
example,
literacy
promoting media
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,
involving all
information on
communications media,
using the Internet responsibly.

to provide

such as,

for

(38)

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

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

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(39)

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 a timely manner before the event of high interest to
the public takes place to give others sufficient time to
exercise such a right. A broadcaster should be able to
exercise this right through an intermediary acting speci-
fically 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 90 seconds.

(41)

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

individual programme by omitting

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

the

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.

(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
regulation on on-demand audiovisual media
lighter
services, which should comply only with the basic rules
provided for in this Directive.

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

(43)

the different

supplying the

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
(i.e. giving
initial
access)
is established should apply. This is usually the
Member State in which the event concerned takes
established an
a Member State has
place. Where
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 established should apply.

signal

(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
commercial
services,
communications.

audiovisual

including

(40)

reports

The requirements of this Directive regarding access to
events of high interest to the public for the purpose of
short news
should be without prejudice to
Directive 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
this
Directive. However, they may choose other equivalent
means within the meaning of
this Directive. Such
inter alia, granting access to the venue
means include,

signal within

the meaning

of

fundamental

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

filtering systems or

(PIN codes),

right

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

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

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the benefit of minors,

The Recommendation on the protection of minors and
human dignity and on the right of
reply already
recognised the importance of
filtering systems and
labelling and included a number of possible measures
systematically
for
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 speci-
fically intended for children with automatic filtering
systems.

such as

(50) When implementing the provisions of Article 4 of
Directive 89/552/EEC, Member States should encourage
broadcasters 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
Framework Decision
Council
2004/68/JHA of 22 December 2003 on combating the
sexual exploitation of children and child pornography (1).

provisions

of

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

taken to protect

the measures

that

(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 to the promotion of cultural 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 rights in European
works, a minimum share of European works in video-on-
the attractive presentation of
demand catalogues, or
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
services. Within the
framework of the reports set out under this Directive,
Member States should also take into account notably
the financial
to the
production and rights acquisition of European works,
the share of European works in the catalogue of audio-
visual media services, and in the actual consumption of
European works offered by such services.

contribution by such services

audiovisual media

as

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

(52)

(53)

The availability of on-demand audiovisual media services
increases the choice of
the consumer. Detailed rules
governing audiovisual commercial communication for
on-demand audiovisual media
appear
to make sense from a
neither
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.

to be justified nor

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
provisions on televised advertising in the ‘Television
without frontiers’ Directive (2), the development of new
advertising techniques and marketing innovations has
created new effective opportunities
audiovisual
commercial communications in traditional broadcasting
services, potentially enabling them better to compete on
a level playing-field with on-demand innovations.

for

(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.
it
However, where product placement is surreptitious,
should be prohibited. The principle of
separation
should not prevent the use of new advertising techniques.

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

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

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(56) Apart

from the practices

in audiovisual media

that are covered by this
European
the
Directive, Directive 2005/29/EC of
the Council of 11 May 2005
Parliament and of
concerning
commercial
business-to-consumer
unfair
practices in the internal market (1) applies to unfair
commercial practices, such as misleading and aggressive
practices occurring
services.
Moreover, as Directive 2003/33/EC of
the European
Parliament and of the Council of 26 May 2003 on the
approximation of the laws, regulations and administrative
provisions of the Member States relating to the adver-
tobacco products (2), which
tising and sponsorship of
prohibits advertising and sponsorship for cigarettes and
information
other tobacco products in printed media,
is without
society services and radio broadcasting,
prejudice to Directive 89/552/EEC,
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
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 Directive.
Furthermore, this Directive should be without prejudice
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).

the European Parliament and of

in view of

(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)

intended to safeguard the specific
This Directive is
character of European television, where advertising is
preferably 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
still need
specific protection.

that

(59)

The limitation that existed on the amount of daily tele-
vision advertising was largely theoretical. The hourly limit
is more important since it also applies during ‘prime
time’. Therefore the daily limit should be abolished,

(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 Regu-

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

(4) OJ L 404, 30.12.2006, p. 9, as corrected by OJ L 12, 18.1.2007,

p. 3.

(60)

(61)

time

teleshopping or

allowed for
seem no longer

while the hourly limit should be maintained for television
advertising and teleshopping spots. The restrictions on
the
advertising
channels
justified given increased
consumer choice. However, the limit of 20 % of tele-
vision advertising spots and teleshopping spots per
clock hour remains applicable. The notion of a television
advertising spot
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 12 minutes.

should be understood as

Surreptitious audiovisual commercial communication is a
practice prohibited by this Directive because of
its
negative effect on consumers. The prohibition of surrep-
titious audiovisual commercial communication should
legitimate product placement within the
not cover
framework of
is
adequately
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.

this Directive, where

informed of

the viewer

the

the

audiovisual

any form of

regulate this practice differently.

Product placement is a reality in cinematographic works
television, but
and in audiovisual works made for
Member States
In
order to ensure a level playing field, and thus enhance
the competitiveness of the European media industry, it is
necessary to adopt rules for product placement. The defi-
nition of product placement introduced by this Directive
should cover
commercial
inclusion of or
communication consisting of
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. 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 significant value. Product placement should be
to the same qualitative rules and restrictions
subject
communication.
commercial
applying to audiovisual
The decisive criterion distinguishing sponsorship from
product
in product
the
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.

placement

that

fact

is

(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 State should be able to opt-out of these dero-
gations, 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
independence of
and the editorial
the media service
the case with regard to thematic
is
provider. This
placement.

(68)

the Interinstitutional
In accordance with point 34 of
Agreement on better law-making (1), Member States are
encouraged to draw up,
themselves and in the
for
interests 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
provision of accessible audiovisual media services. The
means to achieve accessibility should include, but need
not be limited to,
subtitling, audio-
description and easily understandable menu navigation.

sign language,

HAVE ADOPTED THIS DIRECTIVE:

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

Article 1

1. the title shall be replaced by the following:

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 regu-
latory bodies, in order to be able to carry out their work
in implementing this Directive impartially and trans-
parently. More specifically, the instruments chosen by
Member States should contribute to the promotion of
media pluralism.

(66)

(67)

the

correct

application of

Close cooperation between competent Member States’
regulatory bodies and the Commission is necessary to
ensure
this Directive.
Similarly close cooperation between Member States and
between Member States’ regulatory bodies is particularly
important with regard to the impact which 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,
is desirable that contacts between the
respective bodies take place before such licences are
granted. This cooperation should cover all fields coor-
dinated by Directive 89/552/EEC as amended by this
Directive and in particular Articles 2, 2a and 3 hereof.

it

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
this
Directive, be better achieved at Community level, the
Community 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 propor-
tionality, as set out in that Article, this Directive does not
go beyond what is necessary in order to achieve these
objectives.

the scale and effects of

‘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 admin-
istrative action in Member States concerning the provision
of audiovisual media services (Audiovisual Media Services
Directive)’;

2. Article 1 shall be replaced by the following:

‘Article 1

For the purpose of this Directive:

(a)

“audiovisual media service” means:

— a service as defined by Articles 49 and 50 of the
Treaty which is under the editorial responsibility of
a media service provider and the principal purpose
of which is the provision of programmes in order
to the general
to inform, entertain or educate,
public by electronic communications 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 audiovisual media
service as defined in point (g) of this Article,

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
situation comedies, documentaries,
children’s programmes and original drama;

events,

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

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(c)

(d)

(e)

their organisation either

“editorial responsibility” means the exercise of effective
control both over the selection of the programmes and
over
in a chronological
schedule, in the case of television broadcasts, or in a
catalogue, 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

“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
organised;

“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;

(f)

“broadcaster” means a media service provider of tele-
vision broadcasts;

(g)

(h)

(i)

“on-demand audiovisual media service”
(i.e. a non-
linear audiovisual media service) means an audiovisual
media service provided by a media service provider for
the viewing of programmes at the moment chosen by
the user and at his individual request on the basis of a
catalogue of programmes selected by the media service
provider;

commercial

“audiovisual
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
self-promotional
purposes. Forms of audiovisual commercial communi-
cation include,
inter alia, television advertising, spon-
sorship, teleshopping and product placement;

consideration or

similar

for

any

advertising” means

“television
form of
announcement 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
to
trade, business,
promote the supply of goods or services,
including
immovable property, rights and obligations, in return
for payment;

craft or profession in order

(j)

the name,

“surreptitious audiovisual commercial communication”
means the representation in words or pictures of
goods, services,
the trade mark or the
activities of a producer of goods or a provider of
services in programmes when such representation is
intended by the media service provider to serve as
advertising and might mislead the public as to its
in particular, be
nature. Such representation shall,
considered as intentional
if it is done in return for
payment or for similar consideration;

(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 audiovisual 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,
rights and
obligations, in return for payment;

including immovable property,

communication

(m) “product placement” means any form of audiovisual
commercial
the
inclusion of or reference to a product, a service or
the trade mark thereof so that it is featured within a
programme,
for similar
in return for payment or
consideration;

consisting

of

(n)

(i) “European works” means the following:

— works originating in Member States,

— works originating in European third States
party to the European Convention on Trans-
frontier 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;

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(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
they comply
indents of point
with one of the following three conditions:

(i) provided that

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

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

(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;

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

(iii) Works that are not European works within the
meaning of point
that are produced
(i) but
within the framework of bilateral co-production
treaties concluded between Member States and
third countries shall be deemed to be European
works provided that the co-producers from the
Community 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

If a significant part of

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

If a significant part of

in each of

(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 workforce 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) to whom paragraph 4 applies.

(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.

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

intended exclusively

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

4. Article 2a is hereby amended as follows:

including the protection
criminal offences,
of minors and the fight against any inci-
tement to hatred on grounds of race, sex,
religion or nationality, and violations of
individual
human
persons,

concerning

dignity

— the protection of public health,

— public security,

including the safeguarding

of national security and defence,

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

— the protection of

consumers,

including

investors;

‘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.’;

(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;

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

shall be replaced by the following:

(iii) proportionate to those objectives;

In respect of

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

(a) a television broadcast coming from another Member
seriously and gravely infringes

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

(c) the following paragraphs shall be added:

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

take measures

(a) the measures are:

(i) necessary for one of the following reasons:

— public policy,

in particular the prevention,
investigation, detection and prosecution of

(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 juris-
diction 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
intention to take such
measures.

falls of

its

5. Member States may,
in the case of urgency,
derogate from the conditions stipulated in paragraph
the measures shall be
4(b). Where this is the case,
notified
the
time
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.

possible

shortest

to

in

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6. Without prejudice to the Member State's possi-
bility of proceeding with the measures referred to in
the Commission shall examine
paragraphs 4 and 5,
the
the notified measures with
compatibility of
Community law in the shortest possible time. Where
the measures are
it comes to the conclusion that
incompatible with 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 juris-
diction shall request the broadcaster to comply with the
rules of general public interest in question. 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.

3. Where the first Member State assesses:

(a) that

the results achieved through the application of

paragraph 2 are not satisfactory; and

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 broadcaster
concerned.

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

4.
A Member State may take measures pursuant
paragraph 3 only if the following conditions are met:

to

(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.

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

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

their
their

7. Member States shall encourage co- and/or self-regu-
latory 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.

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
provision of
this
Directive shall prevail, unless otherwise provided for in
this Directive.’;

the provisions of

this Directive,

(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

6. Article 3a shall be deleted;

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7. the following Chapter shall be inserted:

(b) audiovisual commercial communications shall not use

subliminal techniques;

‘CHAPTER IIA

PROVISIONS APPLICABLE TO ALL AUDIOVISUAL MEDIA
SERVICES

(c) audiovisual commercial communications shall not:

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;

(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;

(b) the geographical address at which the media service

provider is established;

(iii) encourage behaviour prejudicial to health or safety;

(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 super-

visory bodies.

Article 3b

Member States shall ensure by appropriate means that
audiovisual media services provided by media service
providers under their jurisdiction do not contain any inci-
tement 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.

Article 3e

(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
products and medical
treatment available only on
prescription in the Member State within whose juris-
diction the media
shall be
prohibited;

service provider

falls

(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.

shall

States

1. Member
audiovisual
commercial communications provided by media service
providers under
jurisdiction comply with the
their
following requirements:

ensure

that

(a) audiovisual

commercial

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

communications

shall

accompanying

2. Member States and the Commission shall encourage
media service providers
to develop codes of conduct
regarding inappropriate audiovisual commercial communi-
children's
or
cation,
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

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Article 3f

Audiovisual media services or programmes that are

1.
sponsored shall meet the following requirements:

— in cinematographic works, films and series made for
sports programmes and

audiovisual media services,
light entertainment programmes, or

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

(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.

2.
Audiovisual media services or programmes shall not
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
on
prescription in the Member State within whose jurisdiction
the media service provider falls.

or medical

treatments

available

only

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

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

free of charge,

services

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

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;

(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
resumes after an advertising break,
in order to avoid
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.

Article 3g

1.

Product placement shall be prohibited.

In any event programmes shall not contain product

3.
placement of:

By way of derogation from paragraph 1, product
shall be admissible unless a Member State

2.
placement
decides otherwise:

— 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

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— specific medicinal products or medical

treatments
available only on prescription in the Member State
within whose jurisdiction the media service provider
falls.

4.
The provisions of paragraphs 1, 2 and 3 shall apply
only to programmes produced after 19 December 2009.’;

8. the following Chapter shall be inserted:

‘CHAPTER IIB

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
jurisdiction which
media service providers under
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

Article 3i

the production of and access

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

2. Member States shall report to the Commission no
later
than 19 December 2011 and every four years
thereafter on the implementation of paragraph 1.

9. the following Chapter shall be inserted:

‘CHAPTER IIC

PROVISIONS CONCERNING EXCLUSIVE RIGHTS AND
SHORT NEWS REPORTS IN TELEVISION BROADCASTING

Article 3j

Each Member State may take measures in accordance
1.
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.

are

shall

the Commission shall

compatible with Community

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
such
notification,
law and
measures
communicate them to the other Member States. It shall
the contact committee established
seek the opinion of
forthwith publish the
pursuant
measures
the European
Union and at least once a year the consolidated list of
the measures taken by Member States.

to Article 23a.
taken in the Official

Journal of

It shall

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
this Directive in such a way that a
publication of
substantial proportion of the public in another Member
State is deprived 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.

the possibility of

The Commission shall, on the basis of

the infor-
3.
mation 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.’;

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

Article 3k

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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 guar-
anteed by allowing broadcasters to freely choose short
extracts from the transmitting broadcaster's signal with,
unless impossible for reasons of practicality, at least the
identification 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
in
particular, any compensation arrangements, the maximum
length of short extracts and time limits regarding their
it
transmission. Where compensation is provided for,
shall not exceed the additional costs directly incurred in
providing access.’;

such short extracts are defined,

14. Article 11 shall be replaced by the following:

‘Article 11

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,

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
thirty minutes. The trans-
scheduled period of at
mission of children's programmes may be interrupted by
television advertising and/or teleshopping once for each
scheduled period of at
least 30 minutes, provided that
the scheduled duration of the programme is greater than
30 minutes. No television advertising or teleshopping shall
be inserted during religious services.’;

least

15. Articles 12 and 13 shall be deleted;

16. Article 14(1) shall be deleted;

17. Articles 16 and 17 shall be deleted;

10.

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

the phrase,

‘within the meaning of

18. Article 18 shall be replaced by the following:

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.

‘Article 18

The proportion of

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

2.
Paragraph 1 shall not apply to announcements made
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:

‘Article 18a

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

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

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20. Article 19 shall be replaced by the following:

notably through their competent independent regulatory
bodies.’;

‘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.’;

28. Articles 25 and 25a shall be deleted;

29. Article 26 shall be replaced by the following:

21. Article 19a shall be deleted;

22. Article 20 shall be replaced by the following:

‘Article 20

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
respect of
television broadcasts intended solely for the
territory which cannot be received directly or
national
indirectly by the public in one or more other Member
States.’;

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;

‘Article 26

Not later than 19 December 2011, 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 necessary, 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 competitiveness of the sector and levels
of media literacy in all Member States.

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
consumer protection laws (1) is hereby amended as follows:

responsible

authorities

the

for

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

‘RIGHT OF REPLY IN TELEVISION BROADCASTING’;

— Point 4 of Annex ‘Directives and Regulations covered by

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

26.

in Article 23a(2), point
following:

(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

27. the following Chapter shall be inserted:

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

administrative

the
European Parliament and of the Council on the coordi-
nation of certain provisions laid down by law, regu-
lation or
action in Member States
concerning the provision of audiovisual media services
(Audiovisual Media Services Directive) (*): Articles 3h
last
and 3i and Articles 10 to 20. Directive as
amended by Directive 2007/65/EC of
the European
Parliament and of the Council (**).

___________
(*) OJ L 298, 17.10.1989, p. 23.
(**) OJ L 332, 18.12.2007, p. 27.’

‘CHAPTER VIB

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
this
in particular Articles 2, 2a and 3 hereof,
Directive,

the provisions of

Article 3

1. Member States shall bring into force the laws, regulations
and administrative provisions necessary to comply with this
Directive by 19 December 2009 at
the latest. They shall
forthwith inform the Commission thereof.

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

2005/29/EC.

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When Member States adopt those provisions, they shall contain
a reference to this Directive or be accompanied by such a
reference on the occasion of
their official publication. 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.

This Directive is addressed to the Member States.

Article 5

Done at Strasbourg, 11 December 2007.

Article 4

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

For the European Parliament
The President

For the Council
The President

H.-G. PÖTTERING

M. LOBO ANTUNES