Proposal for a Directive of the European Parliament and of the Council on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services (Audiovisual Media Services Directive) (Codified version)
Date: 2009-04-21
Institutions: European Commission
Subjects: advertising, approximation of laws, audiovisual production, broadcasting, freedom to provide services, right of establishment

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COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 21.4.2009 
COM(2009) 185 final 

2009/0056 (COD) 

Proposal for a 

DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 

on the coordination of certain provisions laid down by law, regulation or administrative 
action in Member States concerning the provision of audiovisual media services 
(Audiovisual Media Services Directive) 

(Codified version) 

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EXPLANATORY MEMORANDUM 

In  the  context  of  a  people’s  Europe,  the  Commission  attaches  great  importance  to 
simplifying  and  clarifying  Community  law  so  as  to  make  it  clearer  and  more 
accessible to the ordinary citizen, thus giving him new opportunities and the chance 
to make use of the specific rights it gives him. 

This aim cannot be achieved so long as numerous provisions that have been amended 
several times, often quite substantially, remain scattered, so that they must be sought 
partly  in  the  original  instrument  and  partly  in  later  amending  ones.  Considerable 
research work, comparing many different instruments, is thus needed to identify the 
current rules. 

For  this  reason  a  codification  of  rules  that  have  frequently  been  amended  is  also 
essential if Community law is to be clear and transparent. 

On  1  April  1987  the  Commission  therefore  decided1  to  instruct  its  staff  that  all 
legislative acts should be codified after no more than ten amendments, stressing that 
this  is  a  minimum  requirement  and  that  departments  should  endeavour  to  codify  at 
even  shorter  intervals  the  texts  for  which  they  are  responsible,  to  ensure  that  the 
Community rules are clear and readily understandable. 

The  Conclusions  of 
the  Edinburgh  European  Council 
(December 1992) confirmed this2, stressing the importance of codification as it offers 
certainty as to the law applicable to a given matter at a given time. 

the  Presidency  of 

Codification  must  be  undertaken  in  full  compliance  with  the  normal  Community 
legislative procedure. 

Given  that  no  changes  of  substance  may  be  made  to  the  instruments  affected  by 
codification, the European Parliament, the Council and the Commission have agreed, 
by  an  interinstitutional  agreement  dated  20  December  1994,  that  an  accelerated 
procedure may be used for the fast-track adoption of codification instruments. 

The purpose of this proposal is to undertake a codification of Directive 89/552/EEC 
of the European Parliament and of the Council of 3 October 1989 on the coordination 
of  certain  provisions  laid  down  by  law,  regulation  or  administrative  action  in 
Member States concerning the provision of audiovisual media services (Audiovisual 
Media  Services  Directive)3.  The  new  Directive  will  supersede  the  various  acts 
incorporated in it4; this proposal fully preserves the content of the acts being codified 
and hence does no more than bring them together with only such formal amendments 
as are required by the codification exercise itself. 

The codification proposal was drawn up on the basis of a preliminary consolidation, 
in all official languages, of Directive 89/552/EEC and the instruments amending it, 

COM(87) 868 PV. 
See Annex 3 to Part A of the Conclusions. 
Carried out pursuant to the Communication from the Commission to the European Parliament and the 
Council – Codification of the Acquis communautaire, COM(2001) 645 final. 
See Annex I, Part A of this proposal. 

1. 

2. 

3. 

4. 

5. 

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carried out by the Office for Official Publications of the European Communities, by 
means  of  a  data-processing  system.  Where  the  Articles  have  been  given  new 
numbers,  the  correlation  between  the  old  and  the  new  numbers  is  shown  in  a  table 
contained in Annex II to the codified Directive. 

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(cid:208) 2007/65/EC Art. 1 pt. 1 

2009/0056 (COD) 

Proposal for a 

DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 

on the coordination of certain provisions laid down by law, regulation or administrative 
action in Member States concerning the provision of audiovisual media services 
(Audiovisual Media Services Directive) (codified version) 

(Text with EEA relevance) 

(cid:208) 89/552/EEC (adapted) 

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, 

Having regard to the Treaty establishing the European Community, and in particular Article 
⌦ 47(2) ⌫ and Article ⌦ 55 ⌫ thereof, 

Having regard to the proposal from the Commission, 

Having regard to the opinion of the European Economic and Social Committee5, 

Acting in accordance with the procedure laid down in Article 251 of the Treaty6, 

Whereas: 

(cid:208)  

(1) 

the  European  Parliament  and  of 

the  Council  of 
Directive  89/552/EEC  of 
3 October 1989 on the coordination of certain provisions laid down by law, regulation 
or  administrative  action  in  Member  States  concerning  the  provision  of  audiovisual 
media  services  (Audiovisual  Media  Services  Directive)7  has  been  substantially 
amended  several  times8.  In  the  interests  of  clarity  and  rationality  the  said  Directive 
should be codified. 

(2)  (cid:208) 89/552/EEC Recital 3 (adapted) 

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8 

OJ C […], […], p. […]. 
OJ C […], […], p. […]. 
OJ L 298, 17.10.1989, p. 23. 
See Annex I, Part A. 

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(3)  ⌦ Audiovisual  media  services  provided ⌫  across  frontiers  by  means  of  various 
technologies  are  one  of  the  ways  of  pursuing  the  objectives  of  the  Community. 
⌦ Certain ⌫ measures ⌦ are necessary ⌫ to permit and ensure the transition from 
national markets to a common programme production and distribution market and to 
⌦ guarantee ⌫ conditions of fair competition without prejudice to the public interest 
role to be discharged by the ⌦ audiovisual media ⌫ services. 

(4) 

The  Council  of  Europe  has  adopted  the  European  Convention  on  Transfrontier 
Television. 

(cid:208) 89/552/EEC Recital 4 

(cid:208) 2007/65/EC Recital 1 (adapted) 

(5)  ⌦ In  the  light  of ⌫  new  technologies  in  the  transmission  of  audiovisual  media 
services,  ⌦ a ⌫  regulatory  framework  ⌦ concerning  the  pursuit  of  broadcasting 
activities  should ⌫  take  account  of  the  impact  of  structural  change,  the  spread  of 
information  and  communication  technologies  (ICT)  and  technological  developments 
on  business  models,  especially  the  financing  of  commercial  broadcasting,  and 
⌦ should ⌫  ensure  optimal  conditions  of  competitiveness  and  legal  certainty  for 
Europe’s  information  technologies  and  its  media  industries  and  services,  as  well  as 
respect for cultural and linguistic diversity. 

(6) 

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

(cid:208) 2007/65/EC Recital 3 

(7) 

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. 

(cid:208) 2007/65/EC Recital 4 

(8) 

(cid:208) 2007/65/EC Recital 5 (adapted) 
In its resolutions of 1 December 20059 and 4 April 200610 on the Doha Round and on 
the  WTO  Ministerial  Conferences,  the  European  Parliament  called  for  basic  public 
services,  such  as  audiovisual  services,  to  be  excluded  from  liberalisation  under  the 
GATS  negotiations.  In  its  resolution  of  27  April  200611,  the  European  Parliament 
supported the Unesco Convention on the Protection and Promotion of the Diversity of 
Cultural  Expressions,  which  states  in  particular  that  ‘cultural  activities,  goods  and 
services have both an economic and a cultural nature, because they convey identities, 

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OJ C 285 E, 22.11.2006, p. 126. 
OJ C 293 E, 2.12.2006, p. 155. 
OJ C 296 E, 6.12.2006, p. 104. 

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values and meanings, and must therefore not be treated as solely having commercial 
value’.  Council  Decision  2006/515/EC  of  18  May  2006  on  the  conclusion  of  the 
Convention on the Protection and Promotion of the Diversity of Cultural Expressions12 
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. 

(cid:208) 89/552/EEC Recital 16 

(9) 

It is essential for the Member States to ensure the prevention of any acts which may 
prove  detrimental  to  freedom  of  movement  and  trade  in  television  programmes  or 
which  may  promote  the  creation  of  dominant  positions  which  would  lead  to 
restrictions on pluralism and freedom of televised information and of the information 
sector as a whole. 

(cid:208) 89/552/EEC Recital 17 
(adapted) 

(10)  This  Directive  is  without  prejudice  to  existing  or  future  Community  acts  of 
harmonisation,  in  particular  to  satisfy  mandatory  requirements  concerning  the 
protection of consumers and the fairness of commercial transactions and competition. 

(cid:208) 2007/65/EC Recital 6 

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

(cid:208) 2007/65/EC Recital 7 (adapted) 

(12) 

It is necessary, in order to avoid distortions of competition, to improve legal certainty, 
to  help  complete  the  internal  market  and  to  facilitate  the  emergence  of  a  single 
information area, 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).  

(13)  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 

(cid:208) 2007/65/EC Recital 8 

12 

OJ L 201, 25.7.2006, p. 15. 

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that sector has to safeguard certain public interests, such as cultural diversity, the right 
to information, media pluralism, the protection of minors and consumer protection and 
to enhance public awareness and media literacy, now and in the future. 

(cid:208) 2007/65/EC Recital 9 

(14)  The Resolution of the Council and of the Representatives of the Governments of the 
Member  States,  meeting  within  the  Council  of  25  January  1999  concerning  public 
service  broadcasting13  reaffirmed  that  the  fulfilment  of  the  mission  of  public  service 
broadcasting  requires  that  it  continue  to  benefit  from  technological  progress.  The 
co-existence  of  private  and  public  audiovisual  media  service  providers  is  a  feature 
which distinguishes the European audiovisual media market. 

(cid:208) 2007/65/EC Recital 10 
(adapted) 

(15)  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  internal  market  framework  for  information  society 
services  and  media  services  by  modernising  the  legal  framework  for  audiovisual 
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. 

(cid:208) 2007/65/EC Recital 11 
(adapted) 

(16)  The  European  Parliament  adopted  on  4 September 200314,  22 April 200415  and 
6 September 200516 resolutions which in principle supported the general approach of 
basic  rules  for  all  audiovisual  media  services  and  additional  rules  for  television 
broadcasting. 

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16 

OJ C 30, 5.2.1999, p. 1. 
European Parliament resolution on Television without Frontiers (OJ C 76 E, 25.3.2004, p. 453). 
European Parliament resolution on the risks of violation, in the EU and especially in Italy, of freedom 
of  expression  and 
the  Charter  of  Fundamental  Rights) 
(OJ C 104 E, 30.4.2004, p. 1026). 
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). 

(Article  11(2)  of 

information 

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(cid:208) 2007/65/EC Recital 12 

(17)  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 
Union17, 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. 

(cid:208) 2007/65/EC Recital 13 
(adapted) 

(18)  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 information in the field of 
technical  standards  and  regulations  and  of  rules  on  Information  Society  services18. 
Accordingly,  draft  national  measures  applicable  to  on-demand  audiovisual  media 
services of a stricter or more detailed nature than those ⌦ which are ⌫ required to 
simply transpose Directive 2007/65/EC should be subject to the procedural obligations 
established under Article 8 of Directive 98/34/EC. 

(cid:208) 2007/65/EC Recital 14 

(19)  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)19 according to its Article 1(3) is without prejudice to 
measures taken at Community or national level, to pursue general interest objectives, 
in particular relating to content regulation and audiovisual policy. 

(cid:208) 89/552/EEC Recital 13 
(adapted) 

(20)  This  Directive  does  not  affect  the  responsibility  of  the  Member  States  and  their 
authorities  with  regard  to  the  organisation  —  including  the  systems  of  licensing, 
administrative  authorisation  or  taxation  — ⌦ ,  the ⌫  financing  and  the  content  of 
programmes.  The  independence  of  cultural  developments  in  the  Member  States  and 
the preservation of cultural diversity in the Community therefore remain unaffected. 

(21)  No provision of this Directive should require or encourage Member States to impose 
new  systems  of  licensing  or  administrative  authorisation  on  any  type  of  audiovisual 
media service. 

(cid:208) 2007/65/EC Recital 15 

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19 

OJ C 364, 18.12.2000, p. 1. 
OJ L 204, 21.7.1998, p. 37. 
OJ L 108, 24.4.2002, p. 33. 

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(cid:208) 2007/65/EC Recital 16 

(22)  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,  that  is,  which  are  intended  for  reception  by,  and 
which could have a clear impact on, a significant proportion of the general public. Its 
scope should be limited to services as defined by the Treaty and therefore should cover 
any form of economic activity, including that of public service enterprises, but should 
not  cover  activities  which  are  primarily  non-economic  and  which  are  not  in 
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. 

(cid:208) 2007/65/EC Recital 18 

(23)  For  the  purposes  of  this  Directive,  the  definition  of  an  audiovisual  media  service 
should cover mass media in their function to inform, entertain and educate the general 
public, and should include audiovisual commercial communication but should exclude 
any  form  of  private  correspondence,  such  as  e-mails  sent  to  a  limited  number  of 
recipients. That definition should exclude all services whose principal purpose is not 
the provision of programmes, i.e. where any audiovisual content is merely incidental 
to  the  service  and  not  its  principal  purpose.  Examples  include  websites  that  contain 
audiovisual  elements  only  in  an  ancillary  manner,  such  as  animated  graphical 
elements,  short  advertising  spots  or 
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. 

information  related 

(cid:208) 2007/65/EC Recital 22 

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

(cid:208) 2007/65/EC Recital 17 
(adapted) 

(25) 

is  characteristic  of  on-demand  audiovisual  media  services 

It 
they  are 
‘television-like’, i.e. that 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 this Directive. In the light of this and 
in  order  to  prevent  disparities  as  regards  free  movement  and  competition,  the 

that 

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⌦ concept ⌫  of  ‘programme’  should  be  interpreted  in  a  dynamic  way  taking  into 
account developments in television broadcasting. 

(cid:208) 2007/65/EC Recital 23 
(adapted) 

(26)  The ⌦ concept ⌫ of editorial responsibility is essential for defining the role of the 
media service provider and therefore for the definition of audiovisual media services. 
Member States may further specify aspects of the definition of editorial responsibility, 
notably  the  ⌦ concept ⌫  of  ‘effective  control’,  when  adopting  measures  to 
implement  this  Directive.  This  Directive  should  be  without  prejudice  to  the 
the 
exemptions 
European Parliament  and  of  the  Council  of  8 June 2000  on  certain  legal  aspects  of 
information society services, in particular electronic commerce, in the Internal Market 
(Directive on electronic commerce)20. 

in  Directive 2000/31/EC 

established 

liability 

from 

of 

(27)  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. 

(cid:208) 2007/65/EC Recital 19 

(cid:208) 2007/65/EC Recital 20 

live 

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

(29)  The  scope  of  this  Directive  should  not  cover  electronic  versions  of  newspapers  and 

magazines. 

(cid:208) 2007/65/EC Recital 21 

(30)  All  the  characteristics  of  an  audiovisual  media  service  set  out  in  its  definition  and 

explained in Recitals 21 to 28 should be present at the same time. 

(cid:208) 2007/65/EC Recital 25 

20 

OJ L 178, 17.7.2000, p. 1. 

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(cid:208) 2007/65/EC Recital 24 
(adapted) 

(31) 

In the context of television broadcasting, the ⌦ concept ⌫ of simultaneous viewing 
should  also  cover  quasi-simultaneous  viewing  because  of  the  variations  in  the  short 
time lag which occurs between the transmission and the reception of the broadcast due 
to technical reasons inherent in the transmission process. 

(cid:208) 2007/65/EC Recital 26 
(adapted) 

(32)  A  wide  definition  of  audiovisual  commercial  communication  should  be  ⌦ laid 
down ⌫  in  this  Directive,  which  however  should  not  include  public  service 
announcements and charity appeals broadcast free of charge. 

(cid:208) 89/552/EEC Recital 21 
(adapted) 

(33)  For the purposes ⌦ of this Directive, ⌫ ‘European works’ should be defined without 
prejudice to the possibility of Member States laying down a more detailed definition 
as regards ⌦ media service providers ⌫ under their jurisdiction, in compliance with 
Community law and account being taken of the objectives of this Directive. 

(cid:208) 2007/65/EC Recital 27 
(adapted) 

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

(35) 

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

(cid:208) 2007/65/EC Recital 28 

(cid:208) 97/36/EC Recital 13 (adapted) 

(36)  The  fixing  of  a  series  of  practical  criteria  is  designed  to  determine  by  an  exhaustive 
procedure that one Member State and one only has jurisdiction over a broadcaster in 
connection  with  the  provision  of  the  services  which  this  Directive  addresses. 
Nevertheless,  taking  into  account  the  case  law  of  the  Court  of  Justice  ⌦ of  the 
European  Communities ⌫  and  so  as  to  avoid  cases  where  there  is  a  vacuum  of 
jurisdiction,  it  is  appropriate  to  refer  to  the  criterion  of  establishment  within  the 

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meaning of Articles 43 and following of the Treaty as the final criterion determining 
the jurisdiction of a Member State. 

(cid:208) 89/552/EEC Recital 15 

(37)  The  requirement  that  the  originating  Member  State  should  verify  that  broadcasts 
comply  with  national  law  as  coordinated  by  this  Directive  is  sufficient  under 
Community law to ensure free movement of broadcasts without secondary control on 
the  same  grounds  in  the  receiving  Member  States.  However,  the  receiving  Member 
State  may,  exceptionally  and  under  specific  conditions  provisionally  suspend  the 
retransmission of televised broadcasts. 

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

(cid:208) 2007/65/EC Recital 29 

(cid:208) 2007/65/EC Recital 30 

(39)  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. 

(cid:208) 2007/65/EC Recital 31 

(40)  Articles 43 to 48  of  the  Treaty  lay  down  the  fundamental  right  to  freedom  of 
establishment. Therefore, media service providers should in general be free to choose 
the Member States in which they establish themselves. The Court of Justice has also 
emphasised  that  ‘the  Treaty  does  not  prohibit  an  undertaking  from  exercising  the 
freedom to provide services if it does not offer services in the Member State in which 
it is established’21. 

(cid:208) 2007/65/EC Recital 32 
(adapted) 

(41)  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 principles of Community law. In 
order  to  deal  with  situations  where  a  broadcaster  under  the  jurisdiction  of  one 
Member State  provides  a  television  broadcast  which  is  wholly  or  mostly  directed 
towards  the  territory  of  another  Member  State,  a  requirement  for  Member  States  to 

21 

Case  C-56/96  VT4  Ltd  v.  Vlaamse  Gemeenschap  [1997]  ECR  I-3143,  paragraph  22;  Case  C-212/97 
Centros v. Erhvervs-og Selskabsstyrelsen [1999] ECR I-1459; see also: Case C-11/95 Commission v. 
Belgium [1996] ECR I-4115 and Case C-14/96 Paul Denuit [1997] ECR I-2785. 

EN 

12 

   EN 

 
 
 
 
 
 
                                                 
cooperate  with  one  another  and,  in  cases  of  circumvention,  the  codification  of  the 
case-law of the Court of Justice22, combined with a more efficient procedure, would be 
an  appropriate  solution  that takes  account  of  Member  State  concerns  without  calling 
into  question  the  proper  application  of  the  country  of  origin  principle.  The 
⌦ concept ⌫ of rules of general public interest has been developed by the Court of 
Justice in its case law in relation to Articles 43 and 49 of the Treaty and includes, inter 
alia, rules on the protection of consumers, the protection of minors and cultural policy. 
The  Member State  requesting  cooperation  should  ensure  that  the  specific  national 
rules  in  question  are  objectively  necessary,  applied  in  a  non-discriminatory  manner, 
and proportionate. 

(cid:208) 2007/65/EC Recital 33 

(42)  A  Member  State,  when  assessing  on  a  case-by-case  basis  whether  a  broadcast  by  a 
media  service  provider  established  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 communications targeted specifically at 
the public in the Member State where they are received. 

(cid:208) 2007/65/EC Recital 34 

(43)  Under  this  Directive,  notwithstanding  the  application  of  the  country  of  origin 
principle, Member States may still take measures that restrict freedom of movement of 
television 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 restrictively23. 

(cid:208) 2007/65/EC Recital 35 

(44)  With  respect  to  on-demand  audiovisual  media  services,  restrictions  on  their  free 
provision  should  only  be  possible  in  accordance  with  conditions  and  procedures 
of 
replicating 
Directive 2000/31/EC. 

by  Articles 3(4), (5) and (6) 

established 

already 

those 

(cid:208) 2007/65/EC Recital 36 

(45) 

In  its  Communication  to  the  European  Parliament  and  to  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 the relevant sector and problem, 
or whether alternatives such as co-regulation or self-regulation should be considered. 

22 

23 

Case  C-212/97  Centros v.  Erhvervs-og  Selskabsstyrelsen, cited  above;  Case  33/74 Van  Binsbergen  v. 
Bestuur van de Bedrijfsvereniging [1974] ECR 1299; Case C-23/93 TV 10 SA v. Commissariaat voor 
de Media [1994] ECR I-4795, paragraph 21. 
Case C-355/98 Commission v. Belgium [2000] ECR I-1221, paragraph 28; Case C-348/96 Calfa [1999] 
ECR I-11, paragraph 23. 

EN 

13 

   EN 

 
 
 
 
 
                                                 
Furthermore,  experience  has  shown  that  both  co-regulation  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. Thus self-regulation constitutes a type of 
voluntary 
initiative  which  enables  economic  operators,  social  partners,  non-
governmental  organisations  or  associations  to  adopt  common  guidelines  amongst 
themselves  and  for  themselves.  Member  States  should,  in  accordance  with  their 
different legal traditions, recognise the role which effective self-regulation can play as 
a complement to the legislative and judicial and/or administrative mechanisms in place 
and  its  useful  contribution  to  the  achievement  of  the  objectives  of  this  Directive. 
However,  while  self-regulation  might  be  a  complementary  method  of  implementing 
certain  provisions  of  this  Directive,  it  should  not  constitute  a  substitute  for  the 
obligations of the national legislator. Co-regulation gives, in its minimal form, a legal 
link  between  self-regulation  and  the  national  legislator  in  accordance  with  the  legal 
traditions of the Member States. Co-regulation should allow for the possibility of State 
intervention in the event of its objectives not being met. Without prejudice to formal 
obligations  of  the  Member  States  regarding  transposition,  this  Directive  encourages 
the use of co-regulation and self-regulation. This should neither oblige Member States 
to set up co-regulation and/or self-regulatory regimes nor disrupt or jeopardise current 
co-regulation or self-regulatory initiatives which are already in place within Member 
States and which are working effectively. 

(cid:208) 2007/65/EC Recital 43 

(46)  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. 

(cid:208) 2007/65/EC Recital 64 

(47)  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,  sign  language,  subtitling,  audio-description  and 
easily understandable menu navigation. 

(cid:208) 2007/65/EC Recital 37 

(48) 

‘Media literacy’ refers to skills, knowledge and understanding 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 opportunities 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 

EN 

14 

   EN 

 
 
 
 
its  progress  followed  closely.  The  Recommendation  of 

promoted  and 
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  audiovisual  and  on-line  information  services  industry24  already 
contains  a  series  of  possible  measures  for  promoting  media  literacy  such  as,  for 
example,  continuing  education  of  teachers  and  trainers,  specific  Internet  training 
aimed  at  children  from  a  very  early  age,  including  sessions  open  to  parents,  or 
organisation  of  national  campaigns  aimed  at  citizens,  involving  all  communications 
media, to provide information on using the Internet responsibly. 

(cid:208) 2007/65/EC Recital 38 

(49)  Television broadcasting rights for events of high interest to the public may be acquired 
by  broadcasters  on  an  exclusive  basis.  However,  it  is  essential  to  promote  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. 

(cid:208) 97/36/EC Recital 18 

(50) 

It is essential that Member States should be able to take measures to protect the right 
to  information  and  to  ensure  wide  access  by  the  public  to  television  coverage  of 
national or non-national events of major importance for society, such as the Olympic 
games,  the  football  World  Cup  and  European  football  championship.  To  this  end, 
Member  States  retain  the  right  to  take  measures  compatible  with  Community  law 
aimed at regulating  the exercise  by  broadcasters under their jurisdiction of exclusive 
broadcasting rights to such events. 

(51) 

It  is  necessary  to  make  arrangements  within  a  Community  framework,  in  order  to 
avoid  potential  legal  uncertainty  and  market  distortions  and  to  reconcile  the  free 
circulation  of  television  services  with  the  need  to  prevent  the  possibility  of 
circumvention of national measures protecting a legitimate general interest. 

(cid:208) 97/36/EC Recital 19 

(cid:208) 97/36/EC Recital 20 (adapted) 

(52) 

In particular, it is appropriate to lay down in this Directive provisions concerning the 
exercise  by  broadcasters  of  exclusive  broadcasting  rights  that  they  may  have 
purchased  to  events  considered  to  be  of  major  importance  for  society  in  a  Member 
State  other  than  that  having  jurisdiction  over  the  broadcasters.  In  order  to  avoid 
speculative rights purchases with a view to circumvention of national measures, it is 
necessary  to  apply  these  provisions  to  contracts  entered  into  after  the  publication  of 
Directive ⌦ 97/36/EC ⌫  and  concerning  events  which  take  place  after  the  date  of 
implementation. When contracts that predate the publication of ⌦ that ⌫ Directive 
are renewed, they are considered to be new contracts. 

24 

OJ L 378, 27.12.2006, p. 72. 

EN 

15 

   EN 

 
 
 
 
 
                                                 
(cid:208) 97/36/EC Recital 21 

(53)  Events of major importance for society should, for the purposes of this Directive, meet 
certain criteria, that is to say be outstanding events which are of interest to the general 
public  in  the  European  Union  or  in  a  given  Member  State  or  in  an  important 
component  part  of  a  given  Member  State  and  are  organised  in  advance  by  an  event 
organiser who is legally entitled to sell the rights pertaining to that event. 

(cid:208) 97/36/EC Recital 22 

(54)  For the purposes of this Directive, 'free television' means broadcasting on a channel, 
either public or commercial, of programmes which are accessible to the public without 
payment in addition to the modes of funding of broadcasting that are widely prevailing 
in  each  Member  State  (such  as  licence  fee  and/or  the  basic  tier  subscription  fee  to  a 
cable network). 

(55)  Member States are free to take whatever measures they deem appropriate with regard 
to ⌦ audiovisual media services ⌫ which come from third countries and which do 
not  satisfy  the  conditions  laid  down  in  Article  2  of  this  Directive,  provided  they 
comply with Community law and the international obligations of the Community. 

(cid:208) 97/36/EC Recital 23 (adapted) 

(cid:208) 2007/65/EC Recital 39 
(adapted) 

(56) 

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 specifically on its behalf on a case-by-case basis. 
Such  short  extracts  may  be  used  for  EU-wide  broadcasts  by  any  channel  including 
dedicated  sports  channels  and  should  not  exceed  90  seconds.  The  right  of  access  to 
short  extracts  should  apply  on  a  trans-frontier  basis  only  where  it  is  necessary. 
Therefore a broadcaster should first seek access from a broadcaster established in the 
same Member State having exclusive rights to the event of high interest to the public. 
The ⌦ concept ⌫ of general news programmes should not cover the compilation of 
short extracts into programmes serving entertainment purposes. The country of origin 
principle should apply to both the access to, and the transmission of, the short extracts. 
In  a  trans-frontier  case,  this  means  that  the  different  laws  should  be  applied 
sequentially. Firstly, for access to the short extracts the law of the Member State where 
the  broadcaster  supplying  the  initial  signal  (i.e.  giving  access)  is  established  should 
apply.  This  is  usually  the  Member  State  in  which  the  event  concerned  takes  place. 
Where  a  Member  State  has  established  an  equivalent  system  of  access  to  the  event 
concerned,  the  law  of  that  Member  State  should  apply  in  any  case.  Secondly,  for 

EN 

16 

   EN 

 
 
 
 
 
transmission of the short extracts, the law of the Member State where the broadcaster 
transmitting the short extracts is established should apply. 

(cid:208) 2007/65/EC Recital 40 

(57)  The  requirements  of  this  Directive  regarding  access  to  events  of  high  interest  to  the 
public  for  the  purpose  of  short  news  reports  should  be  without  prejudice  to 
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  society25  and  the  relevant  international  conventions  in  the  field  of 
copyright and neighbouring rights. Member States should facilitate access to events of 
high  interest  to  the  public  by  granting  access  to  the  broadcaster’s  signal  within  the 
meaning of this Directive. However, they may choose other equivalent means within 
the  meaning  of  this  Directive.  Such  means  include,  inter  alia,  granting  access  to  the 
venue of these events prior to granting access to the signal. Broadcasters should not be 
prevented from concluding more detailed contracts. 

(cid:208) 2007/65/EC Recital 41 
(adapted) 

(58) 

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  possible  without  having  to  tailor  the  individual  programme  by  omitting  the  short 
extracts. This possibility should be restricted to the on-demand supply of the identical 
television broadcast programme by the same media service provider, so it may not be 
used to create new on-demand business models based on short extracts. 

(cid:208) 2007/65/EC Recital 42 

(59)  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  society26.  This  justifies  imposing  lighter  regulation  on  on-demand 
audiovisual media services, which should comply only with the basic rules provided 
for in this Directive. 

(cid:208) 2007/65/EC Recital 44 
(adapted) 

(60)  The availability of harmful content in audiovisual media services ⌦ is ⌫ a concern 
for  legislators,  the  media  industry  and  parents.  There  will  also  be  new  challenges, 
in  connection  with  new  platforms  and  new  products.  Rules 
especially 
⌦ protecting ⌫  the  physical,  mental  and  moral  development  of  minors  as  well  as 
human  dignity  in  all  audiovisual  media  services,  including  audiovisual  commercial 
communications ⌦ , are therefore necessary ⌫. 

25 
26 

OJ L 167, 22.6.2001, p. 10. 
Case C-89/04 Mediakabel BV v. Commissariaat voor de Media [2005] ECR I-4891. 

EN 

17 

   EN 

 
 
 
 
 
                                                 
(cid:208) 2007/65/EC Recital 45 

(61)  Measures taken to protect the physical, mental and moral development of minors and 
human dignity should be carefully balanced with the fundamental right to freedom of 
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 
(PIN codes), filtering systems or 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.  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  for  the  benefit  of  minors,  such  as 
systematically  supplying  users  with  an  effective,  updatable  and  easy-to-use  filtering 
system when they subscribe to an access provider or equipping the access to services 
specifically intended for children with automatic filtering systems. 

(62)  Media  service  providers  under  the  jurisdiction  of  the  Member  States  should  in  any 
case  be  subject  to  a  ban  on  the  dissemination  of  child  pornography  according  to  the 
provisions  of  Council  Framework  Decision 2004/68/JHA  of  22 December 2003  on 
combating the sexual exploitation of children and child pornography27. 

(cid:208) 2007/65/EC Recital 46 

(cid:208) 2007/65/EC Recital 47 
(adapted) 

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

(cid:208) 89/552/EEC Recital 18 
(adapted) 

(64)  Co-ordination  is  needed  to  make  it  easier  for  persons  and  industries  producing 

programmes having a cultural objective to take up and pursue their activities. 

(cid:208) 89/552/EEC Recital 19 
(adapted) 

(65)  Minimum  requirements  in  respect  of  all  public  or  private  Community  television 
⌦ broadcasts ⌫  for  European  audio-visual  productions  have  been  a  means  of 
promoting production, independent production and distribution in the abovementioned 
industries  and  are  complementary  to  other  instruments  which  are  already  or  will  be 
proposed to favour the same objective. 

27 

OJ L 13, 20.1.2004, p. 44. 

EN 

18 

   EN 

 
 
 
 
 
 
                                                 
(cid:208) 89/552/EEC Recital 20 
(adapted) 

(66) 

It  is  therefore  necessary  to  promote  markets  of  sufficient  size  for  television 
productions  in  the  Member  States  to  recover  necessary  investments  not  only  by 
establishing  common  rules  opening  up  national  markets  but  also  by  envisaging  for 
European  productions  where  practicable  and  by  appropriate  means  a  majority 
proportion in television ⌦ broadcasts ⌫ of all Member States. In order to allow the 
monitoring of the application of these rules and the pursuit of the objectives, Member 
States ⌦ should ⌫ provide the Commission with a report on the application of the 
proportions  reserved  for  European  works  and  independent  productions  in  this 
Directive.  For  the  calculation  of  such  proportions,  account  should  be  taken  of  the 
specific  situation  of  the  Hellenic  Republic  and  the  Portuguese  Republic.  The 
Commission  ⌦ should ⌫  inform  the  other  Member  States  of  these  reports 
accompanied,  where  appropriate  by  an  opinion  taking  account  of,  in  particular, 
progress  achieved  in  relation  to  previous  years,  the  share  of  first  broadcasts  in  the 
programming,  the  particular  circumstances  of  new  television  broadcasters  and  the 
specific situation of countries with a low audio-visual production capacity or restricted 
language area. 

(cid:208) 97/36/EC Recital 29 

(67)  Channels  broadcasting  entirely  in  a  language  other  than  those  of  the  Member  States 
should  not  be  covered  by  the  provisions  of  Articles 16 and 17  of  this  Directive. 
Nevertheless, where such a language or languages represent a substantial part but not 
all of the channel's transmission time, the provisions of Articles 16 and 17 should not 
apply to that part of transmission time. 

(68)  The  proportions  of  European  works  must  be  achieved  taking  economic  realities  into 
account. Therefore, a progressive system for achieving this objective is required. 

(cid:208) 97/36/EC Recital 30 

(cid:208) 89/552/EEC Recital 24 
(adapted) 

(69)  A  commitment,  where  practicable,  to  a  certain  proportion  of  broadcasts  for 
independent  productions,  created  by  producers  who  are  independent  of  broadcasters, 
will  stimulate  new  sources  of  television  production,  especially  the  creation  of  small 
and  medium-sized  enterprises.  It  will  offer  new  opportunities  and  ⌦ marketing ⌫ 
outlets to creative talents, to cultural professions and to employees in the cultural field.  

(cid:208) 2007/65/EC Recital 48 

(70)  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 

EN 

19 

   EN 

 
 
 
 
 
 
acquisition  of  rights  in  European  works,  a  minimum  share  of  European  works  in 
video-on-demand  catalogues,  or  the  attractive  presentation  of  European  works  in 
electronic programme guides. It is important to regularly re-examine the application of 
the  provisions  relating  to  the  promotion  of  European  works  by  audiovisual  media 
services.  Within  the  framework  of  the  reports  set  out  under  this  Directive, 
Member States should also take into account notably the financial contribution by such 
services  to  the  production  and  rights  acquisition  of  European  works,  the  share  of 
European  works  in  the  catalogue  of  audiovisual  media  services,  and  in  the  actual 
consumption of European works offered by such services. 

(cid:208) 89/552/EEC Recital 22 

(71) 

It  is  important  to  seek  appropriate  instruments  and  procedures  in  accordance  with 
Community  law  in  order  to  promote  the  implementation  of  these  objectives  with  a 
view  to  adopting  suitable  measures  to  encourage  the  activity  and  development  of 
European audio-visual production and distribution, particularly in countries with a low 
production capacity or a restricted language area. 

(72)  When  implementing  the  provisions  of  Article  16 of  this  Directive ,  Member  States 
should encourage broadcasters to include an adequate share of co-produced European 
works or of European works of non-domestic origin. 

(cid:208) 2007/65/EC Recital 50 

(73)  When  defining  ‘producers  who  are  independent  of  broadcasters’  as  referred  to  in 
Article 17  of  this  Directive ,  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. 

(cid:208) 2007/65/EC Recital 49 

(74)  National support schemes for the development of European production may be applied 

in so far as they comply with Community law. 

(cid:208) 89/552/EEC Recital 23 

(cid:208) 97/36/EC Recital 45 (adapted) 

(75)  The objective of supporting audiovisual production in Europe can be pursued  within 
the  Member  States  in  the  framework  of  the  organisation  of  their  ⌦ audiovisual 
media ⌫  services,  inter  alia,  through  the  definition  of  a  public  interest  mission  for 
certain  ⌦ media  service  providers ⌫,  including  the  obligation  to  contribute 
substantially to investment in European production. 

(76)  ⌦ Media  service  providers ⌫,  programme  makers,  producers,  authors  and  other 
experts should be encouraged to develop more detailed concepts and strategies aimed 

(cid:208) 97/36/EC Recital 27 (adapted) 

EN 

20 

   EN 

 
 
 
 
 
 
 
at developing European audiovisual fiction films that are addressed to an international 
audience. 

(77) 

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

(cid:208) 2007/65/EC Recital 51 

(78)  The  question  of  specific  time  scales  for  each  type  of  showing  of  cinematographic 
works  is  primarily  a  matter  to  be  settled  by  means  of  agreements  between  the 
interested parties or professionals concerned. 

(cid:208) 97/36/EC Recital 32 (adapted) 

(cid:208) 89/552/EEC Recital 26 

(79) 

In order to allow for an active policy in favour of a specific language, Member States 
remain  free  to  lay  down  more  detailed  or  stricter  rules  in  particular  on  the  basis  of 
language criteria, as long as these rules are in conformity with Community law, and in 
particular  are  not  applicable  to  the  retransmission  of  broadcasts  originating  in  other 
Member States. 

(cid:208) 2007/65/EC Recital 52 

(80)  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  services  thus  appear  neither  to  be  justified  nor  to  make 
sense  from  a  technical  point  of  view.  Nevertheless,  all  audiovisual  commercial 
communication should respect not only the identification rules but also a basic tier of 
qualitative rules in order to meet clear public policy objectives. 

(cid:208) 2007/65/EC Recital 54 

(81)  As  has  been  recognised  by  the  Commission  in  its  interpretative  communication  on 
certain  aspects  of  the  provisions  on  televised  advertising  in  the  ‘Television  without 
frontiers’  Directive28,  the  development  of  new  advertising  techniques  and  marketing 
innovations  has  created  new  effective  opportunities  for  audiovisual  commercial 
communications  in  traditional  broadcasting  services,  potentially  enabling  them  to 
compete better on a level playing-field with on-demand innovations. 

(82)  Commercial  and  technological  developments  give  users  increased  choice  and 
responsibility  in  their  use  of  audiovisual  media  services.  In  order  to  remain 
proportionate  with  the  goals  of  general  interest,  regulation  should  allow  a  certain 

(cid:208) 2007/65/EC Recital 55 
(adapted) 

28 

OJ C 102, 28.4.2004, p. 2. 

EN 

21 

   EN 

 
 
 
 
 
 
 
                                                 
degree of flexibility with regard to television broadcasting. The principle of separation 
should  be  limited  to  television  advertising  and  teleshopping,  ⌦ and ⌫  product 
placement  should  be  allowed  under  certain  circumstances,  unless  a  Member  State 
decides  otherwise.  However,  where  product  placement  is  surreptitious,  it  should  be 
prohibited. The principle of separation should not prevent the use of new advertising 
techniques. 

(cid:208) 2007/65/EC Recital 56 
(adapted) 

(83)  Apart from the practices that are covered by this Directive, Directive 2005/29/EC of 
the  European  Parliament  and  of  the  Council  of  11 May 2005  concerning  unfair 
business-to-consumer  commercial  practices  in  the  internal  market29  applies  to  unfair 
commercial  practices,  such  as  misleading  and  aggressive  practices  occurring  in 
audiovisual  media  services.  In  addition,  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 
advertising  and  sponsorship  of  tobacco  products30,  which  prohibits  advertising  and 
sponsorship  for  cigarettes  and  other  tobacco  products  in  printed  media,  information 
society  services  and  radio  broadcasting,  ⌦ should  be ⌫  without  prejudice  to  this 
Directive , in view of the special characteristics of audiovisual media services. Article 
88(1)  of  Directive 2001/83/EC  of  the  European  Parliament  and  of  the  Council  of 
6 November 2001  on  the  Community  code  relating  to  medicinal  products  for  human 
use31, which prohibits advertising to the general public of certain medicinal products 
applies, as provided in paragraph 5 of that Article, without prejudice to Article  21 of 
this  Directive .  Furthermore, 
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 foods32. 

this  Directive  should  be  without  prejudice 

(cid:208) 89/552/EEC Recital 27 

(84) 

In  order  to  ensure  that  the  interests  of  consumers  as  television  viewers  are  fully  and 
properly  protected,  it  is  essential  for  television  advertising  to  be  subject  to  a  certain 
number of minimum rules and standards and that the Member States must maintain the 
right  to  set  more  detailed  or  stricter  rules  and  in  certain  circumstances  to  lay  down 
different conditions for television broadcasters under their jurisdiction. 

(85)  Member  States,  with  due  regard  to  Community  law  and  in  relation  to  broadcasts 
intended  solely  for  the  national  territory  which  may  not  be  received,  directly  or 
indirectly, in one or more Member States, ⌦ should ⌫ be able to lay down different 

(cid:208) 89/552/EEC Recital 28 
(adapted) 

29 
30 
31 
32 

OJ L 149, 11.6.2005, p. 22. 
OJ L 152, 20.6.2003, p. 16. 
OJ L 311, 28.11.2001, p. 67. 
OJ L 404, 30.12.2006, p. 9. 

EN 

22 

   EN 

 
 
 
 
                                                 
conditions  for  the  insertion  of  advertising  and  different  limits  for  the  volume  of 
advertising in order to facilitate these particular broadcasts. 

(cid:208) 2007/65/EC Recital 57 
(adapted) 

(86)  Given  the  increased  possibilities  for  viewers  to  avoid  advertising  through  the  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  ⌦ not ⌫  justified.  While  the  hourly  amount  of 
admissible  advertising  ⌦ should  not  be  increased ⌫,  ⌦ this  Directive ⌫  should 
give flexibility to broadcasters with regard to its insertion where this does not unduly 
impair the integrity of programmes. 

(cid:208) 2007/65/EC Recital 58 
(adapted) 

(87)  This Directive is intended to safeguard the specific 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 that need specific protection. 

(cid:208) 2007/65/EC Recital 59 
(adapted) 

(88)  ⌦ A ⌫ limit of 20 % of television advertising spots and teleshopping spots per clock 
hour  ⌦ ,  also  applying  during  ‘prime  time’,  should  be  laid  down ⌫  .  The 
⌦ concept ⌫  of  a  television  advertising  spot  should  be  understood  as  television 
advertising  in  the  sense  of  Article 1(1)(i)  of  this  Directive  having  a  duration  of  not 
more than 12 minutes. 

(cid:208) 89/552/EEC Recital 29 
(adapted) 

(89) 

It  is  necessary  to  prohibit  all  ⌦ audiovisual  commercial  communication ⌫ 
promoting  cigarettes  and  other  tobacco  products  including  indirect  forms  of 
⌦ audiovisual commercial communication ⌫ which, whilst not directly mentioning 
the  tobacco  product,  seek  to  circumvent  the  ban  on  ⌦ audiovisual  commercial 
communication  for  cigarettes  and  other  tobacco  products ⌫  by  using  brand  names, 
symbols  or  other  distinctive  features  of  tobacco  products  or  of  undertakings  whose 
known or main activities include the production or sale of such products. 

(cid:208) 89/552/EEC Recital 30 
(adapted) 

(90) 

It is also necessary to prohibit all ⌦ audiovisual commercial communication ⌫ for 
medicinal  products  and  medical  treatment  available  only  on  prescription  in  the 
Member State within whose jurisdiction the broadcaster falls and to ⌦ lay down ⌫ 
strict criteria relating to the television advertising of alcoholic products. 

EN 

23 

   EN 

 
 
 
 
 
 
(cid:208) 2007/65/EC Recital 60 

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

(cid:208) 2007/65/EC Recital 61 
(adapted) 

(92)  Product  placement  is  a  reality  in  cinematographic  works  and  in  audiovisual  works 
made  for  television.  In  order  to  ensure  a  level  playing  field,  and  thus  enhance  the 
competitiveness  of  the  European  media  industry,  rules  for  product  placement ⌦ are 
necessary ⌫. The definition of product placement ⌦ laid down in ⌫ this Directive 
should  cover  any  form  of  audiovisual  commercial  communication  consisting  of  the 
inclusion of or reference to a product, a service or the trade mark thereof so that it is 
featured within a programme, in return for payment or for similar consideration. 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 subject to the same qualitative 
rules  and  restrictions  applying  to  audiovisual  commercial  communication.  The 
decisive criterion distinguishing sponsorship from product placement is the fact that in 
product placement the reference to a product is built into the action of a programme, 
which  is  why  the  definition  in  Article  1(1)(m)  of  this  Directive  contains  the  word 
‘within’.  In  contrast,  sponsor  references  may  be  shown  during  a  programme  but  are 
not part of the plot. 

(cid:208) 2007/65/EC Recital 62 

(93)  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 derogations, totally or partially, for example by 
permitting  product  placement  only  in  programmes  which  have  not  been  produced 
exclusively in that Member State. 

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

(cid:208) 2007/65/EC Recital 63 

EN 

24 

   EN 

 
 
 
 
 
(cid:208) 2007/65/EC Recital 65 
(adapted) 

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

(cid:208) 2007/65/EC Recital 66 
(adapted) 

(96)  Close cooperation between competent regulatory bodies of the Member States and the 
Commission is necessary to ensure the correct application of this Directive. Similarly 
close  cooperation  between  Member  States  and  between  their  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,  it  is 
desirable that contacts between the respective bodies take place before such licences 
are granted. This cooperation should cover all fields coordinated by this Directive . 

(97) 

It  is  necessary  to  make  clear  that  self-promotional  activities  are  a  particular  form  of 
advertising in which the broadcaster promotes its own products, services, programmes 
or  channels.  In  particular,  trailers  consisting  of  extracts  from  programmes  should  be 
treated as programmes.  

(cid:208) 97/36/EC Recital 39 (adapted) 

(cid:208) 97/36/EC Recital 34 (adapted) 

(98)  Daily  transmission  time  allotted  to  announcements  made  by  the  broadcaster  in 
connection  with  its  own  programmes  and  ancillary  products  directly  derived  from 
these, or to public service announcements and charity appeals broadcast free of charge, 
⌦ should ⌫  not  to  be  included  in  the  maximum  amounts  of  daily  or  hourly 
transmission time that may be allotted to advertising and teleshopping. 

(cid:208) 97/36/EC Recital 35 (adapted) 

(99) 

In order to avoid distortions of competition, this derogation ⌦ should be ⌫ limited 
to  announcements  concerning  products  that  fulfil  the  dual  condition  of  being  both 
ancillary to and directly derived from the programmes concerned. The term ancillary 
refers  to  products  intended  specifically  to  allow  the  viewing  public  to  benefit  fully 
from or to interact with these programmes. 

EN 

25 

   EN 

 
 
 
 
 
 
(100)  In  view  of  the  development  of  teleshopping,  an  economically  important  activity  for 
operators  as  a  whole  and  a  genuine  outlet  for  goods  and  services  within  the 
Community, it is essential to ensure a high level of consumer protection by putting in 
place appropriate standards regulating the form and content of such broadcasts. 

(cid:208) 97/36/EC Recital 36 (adapted) 

(cid:208) 97/36/EC Recital 37 

(101)  It 

is 

important  for 

the 
the  competent  national  authorities, 
implementation  of  the  relevant  provisions,  to  be  able  to  distinguish,  as  regards 
channels not exclusively devoted to teleshopping, between transmission time devoted 
to teleshopping spots, advertising spots and other forms of advertising on the one hand 
and, on the other, transmission time devoted to teleshopping windows. It is therefore 
necessary and sufficient that each window be clearly identified by optical and acoustic 
means at least at the beginning and the end of the window. 

in  monitoring 

(cid:208) 97/36/EC Recital 38 (adapted) 

(102)  This Directive ⌦ should apply ⌫ to channels exclusively devoted to teleshopping or 
self-promotion, without conventional programme elements such as news, sports, films, 
documentaries and drama, solely for the purposes of ⌦ this ⌫ Directive and without 
prejudice  to  the  inclusion  of  such  channels  in  the  scope  of  other  Community 
instruments. 

(cid:208) 89/552/EEC Recital 33 

(103)  Although  television  broadcasters  are  normally  bound  to  ensure  that  programmes 
present facts and events fairly, it is nevertheless important that they should be subject 
to specific obligations with respect to the right of reply or equivalent remedies so that 
any person whose legitimate interests have been damaged by an assertion made in the 
course  of  a  broadcast  television  programme  may  effectively  exercise  such  right  or 
remedy. 

(cid:208) 2007/65/EC Recital 53 

(104)  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. 

(105)  Since the objectives of this Directive, namely the 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 

(cid:208) 2007/65/EC Recital 67 

EN 

26 

   EN 

 
 
 
 
 
 
 
and human dignity as well as promoting the rights of persons with disabilities, cannot 
be  sufficiently  achieved  by  the  Member  States  and  can  therefore,  by  reason  of  the 
scale  and  effects  of  this  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 proportionality, as 
set out in that Article, this Directive does not go beyond what is necessary in order to 
achieve these objectives. 

(106)  This  Directive  should  be  without  prejudice  to  the  obligations  of  the  Member  States 
relating to the time-limits for transposition into national law of the Directives set out in 
Annex I, Part B, 

(cid:208)  

EN 

27 

   EN 

 
 
HAVE ADOPTED THIS DIRECTIVE: 

(cid:208) 89/552/EEC 

CHAPTER I 

Definitions 

Article 1 

(cid:208) 2007/65/EC Art. 1 pt. 2 

1. For the purposes of this Directive, the following definitions shall apply: 

(a) 

“audiovisual media service” means: 

(cid:208) 2007/65/EC Art. 1 pt. 2 
(adapted) 

(i) 

a  service  as  defined  by  Articles 49 and 50  of  the  Treaty  which  is  under  the 
editorial responsibility of a media service provider and the principal purpose of 
which is the provision of programmes, in order to inform, entertain or educate, 
to  the  general  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 paragraph 
or  an  on-demand  audiovisual  media  service  as  defined  in  point  (g)  of  this 
paragraph; 

(ii) 

audiovisual commercial communication; 

(cid:208) 2007/65/EC Art. 1 pt. 2 

(b) 

(c) 

“programme”  means  a  set  of  moving  images with or without sound constituting an 
individual  item  within  a  schedule  or  a  catalogue  established  by  a  media  service 
provider  and  whose  form  and  content  is  comparable  to  the  form  and  content  of 
television  broadcasting.  Examples  of  programmes  include  feature-length  films, 
sports  events,  situation  comedies,  documentaries,  children’s  programmes  and 
original drama; 

“editorial  responsibility”  means  the  exercise  of  effective  control  both  over  the 
selection  of  the  programmes  and  over  their  organisation  either  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 liability under national law for the content or the services provided; 

EN 

28 

   EN 

 
 
 
 
 
(d) 

(e) 

(f) 

(g) 

(h) 

(i) 

(j) 

(k) 

“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; 

“broadcaster” means a media service provider of television broadcasts; 

“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; 

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

“television  advertising”  means  any  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 
trade,  business,  craft  or  profession  in  order  to  promote  the  supply  of  goods  or 
services,  including  immovable  property,  rights  and  obligations,  in  return  for 
payment; 

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

(cid:208) 2007/65/EC Art. 1 pt. 2 
(adapted) 

“sponsorship” means any contribution made by public or private ⌦ undertakings ⌫ 
or natural ⌦ persons ⌫ 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  ⌦ their ⌫  name,  trade  mark,  image, 
activities or products;  

EN 

29 

   EN 

 
 
(cid:208) 2007/65/EC Art. 1 pt. 2 

(l) 

(m) 

“teleshopping” means direct offers broadcast to the public with a view to the supply 
of goods or services, including immovable property, rights and obligations, in return 
for payment; 

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

(n) 

 “European works” means the following: 

(i)  works originating in Member States; 

(ii)  works  originating  in  European  third  States  party  to  the  European  Convention 
on  Transfrontier  Television  of  the  Council  of  Europe  and  fulfilling  the 
conditions of paragraph 3; 

(iii)  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. 

2.  The  application  of  the  provisions  of  paragraph  1  (n)  (ii)  and  (iii)  shall  be  conditional  on 
works originating in Member States not being the subject of discriminatory measures in the 
third country concerned. 

3. The works referred to in paragraph 1 (n) (i) and (ii) are works mainly made with authors 
and  workers  residing  in  one  or  more  of  the  States  referred  to  in  paragraph  1  (n)  (i)  and  (ii) 
provided that they comply with one of the following three conditions: 

(cid:208) 2007/65/EC Art. 1 pt. 2 
(adapted) 

(i) 

(ii) 

(iii) 

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

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

the  contribution  of  co-producers  of  those  States  to  the  total  co-production  costs  is 
preponderant  and  the  co-production  is  not  controlled  by  one  or  more  producers 
established outside those States. 

(cid:208) 2007/65/EC Art. 1 pt. 2 

4. Works that are not European works within the meaning of paragraph 1 (n) or paragraph 2 
but  that  are  produced  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 

EN 

30 

   EN 

 
 
 
 
production  and  that  the  production  is  not  controlled  by  one  or  more  producers  established 
outside the territory of the Member States. 

(cid:208) 89/552/EEC 

CHAPTER II 

General provisions 

(cid:208) 2007/65/EC Art. 1 pt. 3 

Article 2 

1. Each Member State shall ensure that all audiovisual 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. 

(cid:208) 2007/65/EC Art. 1 pt. 3 
(adapted) 

2. For the purposes of this Directive, the media service providers under the jurisdiction of a 
Member State are ⌦ any of the following ⌫ : 

(a)  ⌦ those ⌫ established in that Member State in accordance with paragraph 3;  

(b)  ⌦ those ⌫ to whom paragraph 4 applies. 

(cid:208) 2007/65/EC Art. 1 pt. 3 

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

(a) 

(b) 

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; 

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 State where a significant part of the 
workforce involved in the pursuit of the audiovisual media service activity operates. 
If a significant part of the workforce involved in the pursuit of the audiovisual media 
service activity operates in each of those Member States, the media service provider 
shall be deemed to be established in the Member State where it has its head office. If 
a significant part of the workforce involved in the pursuit of the audiovisual media 
service  activity  operates  in  neither  of  those  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; 

EN 

31 

   EN 

 
 
 
 
 
(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) 

(b) 

they use a satellite up-link situated in that Member State; 

although they do not use a satellite up-link situated in that Member State, they use 
satellite capacity appertaining to that Member State. 

5.  If  the  question  as  to  which  Member  State  has  jurisdiction  cannot  be  determined  in 
accordance with paragraphs 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. 

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

(cid:208) 97/36/EC Art. 1 pt. 3 

Article 3 

(cid:208) 2007/65/EC Art. 1 pt. 4(a) 

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. 

(cid:208) 2007/65/EC Art. 1 pt. 4(b) 

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

(a) 

a television broadcast coming from another Member State manifestly, seriously and 
gravely infringes Article 27(1) or (2) and/or Article 6; 

(cid:208) 97/36/EC Art. 1 pt. 3 

(b) 

(c) 

during  the  previous  12  months,  the  broadcaster  has  infringed  the  provision(s) 
referred to in point (a) on at least two prior occasions; 

the  Member  State  concerned  has  notified  the  broadcaster  and  the  Commission  in 
writing of the alleged infringements and of the measures it intends to take should any 
such infringement occur again; 

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(d) 

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

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

3.  Paragraph 2  shall  be  without  prejudice  to  the  application  of  any  procedure,  remedy  or 
sanction to the infringements in question in the Member State which has jurisdiction over the 
broadcaster concerned. 

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

(cid:208) 2007/65/EC Art. 1 pt. 4(c) 

(a) 

the measures are: 

(i) 

necessary for one of the following reasons: 

– 

– 

– 

– 

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

the protection of public health; 

public  security,  including  the  safeguarding  of  national  security  and 
defence; 

the protection of consumers, including investors; 

(ii) 

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

(iii)  proportionate to those objectives; 

(b) 

before  taking  the  measures  in  question  and  without  prejudice  to  court  proceedings, 
including  preliminary  proceedings  and  acts  carried  out  in  the  framework  of  a 
criminal investigation, the Member State has: 

(i) 

asked  the  Member  State  under  whose  jurisdiction  the  media  service  provider 
falls to take measures and the latter did not take such measures, or they were 
inadequate; 

(ii)  notified  the  Commission  and  the  Member  State  under  whose  jurisdiction  the 

media service provider falls of its intention to take such measures. 

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

6.  Without  prejudice  to  the  Member  State's  possibility  of  proceeding  with  the  measures 
referred  to  in  paragraphs  4  and  5,  the  Commission  shall  examine  the  compatibility  of  the 
notified measures with Community law in the shortest possible time. Where it comes to the 
conclusion  that  the  measures  are  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. 

(cid:208) 2007/65/EC Art. 1 pt. 5 

Article 4 

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) 

(b) 

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

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

it  may  contact  the  Member  State  having  jurisdiction  with  a  view  to  achieving  a  mutually 
satisfactory solution to any problems posed. On receipt of a substantiated request by the first 
Member State, the Member State having jurisdiction shall 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 29 
to examine the case. 

(cid:208) 2007/65/EC Art. 1 pt. 5 
(adapted) 

3.  The  first  Member  State  ⌦ may  adopt  appropriate  measures  against  the  broadcaster 
concerned where it ⌫ assesses ⌦ that ⌫ : 

(a) 

(b) 

 the results achieved through the application of paragraph 2 are not satisfactory; and 

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

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(cid:208) 2007/65/EC Art. 1 pt. 5 

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  to  paragraph  3  only  if  the  following 
conditions are met: 

(a) 

(b) 

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 

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  incompatible  with 
Community  law,  the  Member  State  in  question  shall  refrain  from  taking  the  proposed 
measures. 

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

7.  Member  States  shall  encourage  co-regulation  and/or  self-regulatory  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, the provisions of this Directive shall prevail, unless otherwise provided for in this 
Directive. 

EN 

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(cid:208) 2007/65/EC Art. 1 pt. 7 

CHAPTER III 

Provisions applicable to all audiovisual media services 

Article 5 

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) 

(b) 

(c) 

the name of the media service provider; 

the geographical address at which the media service provider is established; 

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 supervisory bodies. 

Article 6 

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

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 7 

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

Article 8 

Article 9 

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

(a) 

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

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36 

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(b) 

(c) 

(d) 

(e) 

(f) 

(g) 

audiovisual commercial communications shall not use subliminal techniques; 

audiovisual commercial communications shall not: 

(i) 

prejudice respect for human dignity; 

(ii) 

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

(iii)  encourage behaviour prejudicial to health or safety; 

(iv)  encourage behaviour grossly prejudicial to the protection of the environment; 

all forms of audiovisual commercial communications for cigarettes and other tobacco 
products shall be prohibited; 

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

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

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. 

2.  Member  States  and  the  Commission  shall  encourage  media  service  providers  to  develop 
codes  of  conduct  regarding 
inappropriate  audiovisual  commercial  communications, 
accompanying  or  included  in  children's  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. 

Article 10 

1.  Audiovisual  media  services  or  programmes  that  are  sponsored  shall  meet  the  following 
requirements: 

(a) 

(b) 

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; 

they  shall  not  directly  encourage  the  purchase  or  rental  of  goods  or  services,  in 
particular by making special promotional references to those goods or services; 

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37 

   EN 

 
(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 undertaking, but shall not promote specific medicinal 
products  or  medical  treatments  available  only  on  prescription  in  the  Member  State  within 
whose jurisdiction the media service provider falls. 

4. News and current affairs programmes shall not be sponsored. Member States may choose 
to prohibit the showing  of  a  sponsorship logo during children's programmes,  documentaries 
and religious programmes. 

(cid:208) 2007/65/EC Art. 1 pt. 7 
(adapted) 

Article 11 

⌦ 1.  Paragraphs  2,  3  and  4  shall  apply  only 
19 December 2009. ⌫ 

to  programmes  produced  after 

2. Product placement shall be prohibited. 

3. By way of derogation from paragraph 2, product placement shall be admissible ⌦ in the 
following cases ⌫ unless a Member State decides otherwise: 

(a) 

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

(cid:208) 2007/65/EC Art. 1 pt. 7 

(b) 

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

The derogation provided for in point (a) 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; 

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38 

   EN 

 
 
 
(b) 

(c) 

(d) 

they  shall  not  directly  encourage  the  purchase  or  rental  of  goods  or  services,  in 
particular by making special promotional references to those goods or services; 

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

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. 

4. In any event programmes shall not contain product placement of: 

(cid:208) 2007/65/EC Art. 1 pt. 7 
(adapted) 

(a) 

(b) 

tobacco  products  or  cigarettes  or  product  placement  from  undertakings  whose 
principal activity is the manufacture or sale of cigarettes and other tobacco products;  

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

(cid:208) 2007/65/EC Art. 1 pt. 8 

CHAPTER IV 

Provisions applicable only to on-demand audiovisual media 
services 

Article 12 

Member States shall take appropriate measures to ensure that on-demand audiovisual media 
services  provided  by  media  service  providers  under  their  jurisdiction  which  might  seriously 
impair the physical, mental or moral development 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. 

Article 13 

1. Member States shall ensure that on-demand audiovisual media services provided by media 
service  providers  under  their  jurisdiction  promote,  where  practicable  and  by  appropriate 
means, the production of and access to European works. Such promotion could relate,  inter 
alia,  to  the  financial  contribution  made  by  such  services  to  the  production  and  rights 

EN 

39 

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acquisition  of  European  works  or  to  the  share and/or  prominence  of  European  works  in  the 
catalogue of programmes offered by the on-demand audiovisual media service. 

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. 

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

(cid:208) 2007/65/EC Art. 1 pt. 9 

CHAPTER V 

Provisions concerning exclusive rights and short news reports in 
television broadcasting 

Article 14 

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

2.  Member  States  shall  immediately  notify  to  the  Commission  any  measures  taken  or  to  be 
taken  pursuant  to  paragraph 1.  Within  a  period  of  three  months  from  the  notification,  the 
Commission  shall  verify  that  such  measures  are  compatible  with  Community  law  and 
communicate  them  to  the  other  Member  States.  It  shall  seek  the  opinion  of  the  contact 
committee established pursuant to Article  29. It shall forthwith publish the measures taken in 
the Official Journal of the European Union and at least once a year the consolidated list of the 
measures taken by Member States. 

(cid:208) 2007/65/EC Art. 1 pt. 9 
(adapted) 

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  ⌦ after  18  December  2007 ⌫  in  such  a  way  that  a 
substantial proportion of the public in another Member State is deprived of the possibility of 

EN 

40 

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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. 

(cid:208) 2007/65/EC Art. 1 pt. 9 

Article 15 

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

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

3.  Member  States  shall  ensure  that  such  access  is  guaranteed  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. 

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

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

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

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(cid:208) 89/552/EEC 
(cid:206)1 97/36/EC Art. 1 pt. 5 

CHAPTER VI 

Promotion of distribution and production of television 
programmes 

Article 16 

1. Member States shall ensure, where practicable and by appropriate means, that broadcasters 
reserve  for  European  works  a  majority  proportion  of  their  transmission  time,  excluding  the 
time  appointed  to  news,  sports  events,  games,  advertising  (cid:206)1 ,  teletext  services  and 
teleshopping .  This  proportion,  having  regard 
informational, 
educational,  cultural  and  entertainment  responsibilities  to  its  viewing  public,  should  be 
achieved progressively, on the basis of suitable criteria. 

the  broadcaster's 

to 

2.  Where  the  proportion  laid  down  in  paragraph 1  cannot  be  attained,  it  must  not  be  lower 
than the average for 1988 in the Member State concerned. 

However,  in  respect  of  the  Hellenic  Republic  and  the  Portuguese  Republic,  the  year  1988 
shall be replaced by the year 1990. 

3. Member States shall provide the Commission every two years ⌦ , starting from 3 October 
1991, ⌫ with a report on the application of this Article and Article 17. 

(cid:208) 89/552/EEC (adapted) 

(cid:208) 89/552/EEC 

That  report  shall  in  particular  include  a  statistical  statement  on  the  achievement  of  the 
proportion  referred  to  in  this  Article  and  Article 17  for  each  of  the  television  programmes 
falling within the jurisdiction of the Member State concerned, the reasons, in each case, for 
the failure to attain that proportion and the measures adopted or envisaged in order to achieve 
it. 

The  Commission  shall  inform  the  other  Member  States  and  the  European  Parliament  of  the 
reports,  which  shall  be  accompanied,  where  appropriate,  by  an  opinion.  The  Commission 
shall ensure the application of this Article and Article 17 in accordance with the provisions of 
the  Treaty.  The  Commission  may  take  account  in  its  opinion,  in  particular,  of  progress 
achieved in relation to previous years, the share of first broadcast works in the programming, 
the  particular  circumstances  of  new  television  broadcasters  and  the  specific  situation  of 
countries with a low audiovisual production capacity or restricted language area. 

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(cid:208) 89/552/EEC 
(cid:206)1 97/36/EC Art. 1 pt. 6 

Article 17 

Member  States  shall  ensure,  where  practicable  and  by  appropriate  means,  that  broadcasters 
reserve at least 10 % of their transmission time, excluding the time appointed to news, sports 
events,  games,  advertising  (cid:206)1 ,  teletext  services  and  teleshopping ,  or  alternately,  at  the 
discretion  of  the  Member  State,  at  least  10 %  of  their  programming  budget,  for  European 
works  created  by  producers  who  are  independent  of  broadcasters.  This  proportion,  having 
regard to broadcasters' informational, educational, cultural and entertainment responsibilities 
to  its  viewing  public,  should  be  achieved  progressively,  on  the  basis  of  suitable  criteria;  it 
must be achieved by earmarking an adequate proportion for recent works, that is to say works 
transmitted within five years of their production. 

(cid:208) 97/36/EC Art. 1 pt. 10 

Article 18 

This Chapter shall not apply to television broadcasts that are intended for local audiences and 
do not form part of a national network. 

(cid:208) 89/552/EEC 

CHAPTER VII 

Television advertising and teleshopping 

(cid:208) 2007/65/EC Art. 1 pt. 12 

(cid:208) 2007/65/EC Art. 1 pt. 13 

Article 19 

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

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

EN 

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(cid:208) 2007/65/EC Art. 1 pt. 14 

Article 20 

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

2. The transmission of films made for television (excluding series, serials and documentaries), 
cinematographic  works  and  news  programmes  may  be  interrupted  by  television  advertising 
and/or teleshopping once for each scheduled period of at least 30 minutes. The transmission 
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. 

(cid:208) 89/552/EEC 

Article 21 

Teleshopping for medicinal products which are subject to a marketing authorisation within the 
meaning of ⌦ Directive 2001/83/EC ⌫, as well as teleshopping for medical treatment, shall 
be prohibited. 

(cid:208) 97/36/EC Art. 1 pt. 16 (adapted) 

(cid:208) 89/552/EEC 

Article 22 

(cid:208) 97/36/EC Art. 1 pt. 17 

Television  advertising  and  teleshopping  for  alcoholic  beverages  shall  comply  with  the 
following criteria: 

(cid:208) 89/552/EEC 

(a) 

(b) 

(c) 

it may not be aimed specifically at minors or, in particular, depict minors consuming 
these beverages; 

it shall not link the consumption of alcohol to enhanced physical performance or to 
driving; 

it shall not create the impression that the consumption of alcohol contributes towards 
social or sexual success; 

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(d) 

(e) 

(f) 

it  shall  not  claim  that  alcohol  has  therapeutic  qualities  or  that  it  is  a  stimulant,  a 
sedative or a means of resolving personal conflicts; 

it  shall  not  encourage  immoderate  consumption  of  alcohol  or  present  abstinence  or 
moderation in a negative light; 

it shall not place emphasis on high alcoholic content as being a positive quality of the 
beverages. 

(cid:208) 2007/65/EC Art. 1 pt. 18 

Article 23 

1. The proportion of 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. 

(cid:208) 2007/65/EC Art. 1 pt. 19 

Article 24 

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

(cid:208) 2007/65/EC Art. 1 pt. 20 

Article  25This  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. 

However, Chapter VI as well as Articles 20 and 23 shall not apply to these channels. 

(cid:208) 2007/65/EC Art. 1 pt. 22 

Article 26 

Without prejudice to Article 4, Member States may, with due regard for Community law, lay 
down  conditions  other  than  those  laid  down  in  Article  20(2)  and  Article  23  in  respect  of 
television  broadcasts  intended  solely  for  the  national  territory  which  cannot  be  received 
directly or indirectly by the public in one or more other Member States. 

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(cid:208) 89/552/EEC 

CHAPTER VIII 

Protection of minors in television broadcasting 

(cid:208) 2007/65/EC Art. 1 pt. 23 

(cid:208) 97/36/EC Art. 1 pt. 27 

Article 27 

1.  Member  States  shall  take  appropriate  measures  to  ensure  that  television  broadcasts  by 
broadcasters  under  their  jurisdiction  do  not  include  any  programmes  which  might  seriously 
impair  the  physical,  mental  or  moral  development  of  minors,  in  particular  programmes  that 
involve pornography or gratuitous violence. 

2. The measures provided for in paragraph 1 shall also extend to other programmes which are 
likely  to  impair  the  physical,  mental  or  moral  development  of  minors,  except  where  it  is 
ensured, by selecting the time of the broadcast or by any technical measure, that minors in the 
area of transmission will not normally hear or see such broadcasts. 

3. In addition, when such programmes are broadcast in unencoded form Member States shall 
ensure  that  they  are  preceded  by  an  acoustic  warning  or  are  identified  by  the  presence  of  a 
visual symbol throughout their duration. 

(cid:208) 89/552/EEC 

CHAPTER IX 

Right of reply in television broadcasting 

(cid:208) 2007/65/EC Art. 1 pt. 25 

(cid:208) 89/552/EEC 

Article 28 

(cid:208) 97/36/EC Art. 1 pt. 30 

1.  Without  prejudice  to  other  provisions  adopted  by  the  Member  States  under  civil, 
administrative  or  criminal  law,  any  natural  or  legal  person,  regardless  of  nationality,  whose 

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legitimate  interests,  in  particular  reputation  and  good  name,  have  been  damaged  by  an 
assertion of incorrect facts in a television programme must have a right of reply or equivalent 
remedies.  Member  States  shall  ensure  that  the  actual  exercise  of  the  right  of  reply  or 
equivalent  remedies  is  not  hindered  by  the  imposition  of  unreasonable  terms  or  conditions. 
The  reply  shall  be  transmitted  within  a  reasonable  time  subsequent  to  the  request  being 
substantiated and at a time and in a manner appropriate to the broadcast to which the request 
refers. 

(cid:208) 89/552/EEC 

2. A right of reply or equivalent remedies shall exist in relation to all broadcasters under the 
jurisdiction of a Member State. 

3.  Member  States  shall  adopt  the  measures  needed  to  establish  the  right  of  reply  or  the 
equivalent remedies and shall determine the procedure to be followed for the exercise thereof. 
In particular, they shall ensure that a sufficient time span is allowed and that the procedures 
are  such  that  the  right  or  equivalent  remedies  can  be  exercised  appropriately  by  natural  or 
legal persons resident or established in other Member States. 

4. An application for exercise of the right of reply or the equivalent remedies may be rejected 
if  such  a  reply  is  not  justified  according  to  the  conditions  laid  down  in  paragraph 1,  would 
involve  a  punishable  act,  would  render  the  broadcaster  liable  to  civil  law  proceedings  or 
would transgress standards of public decency. 

5. Provision shall be made for procedures whereby disputes as to the exercise of the right of 
reply or the equivalent remedies can be subject to judicial review. 

(cid:208) 97/36/EC Art. 1 pt. 31 

CHAPTER X 

Contact committee 

Article 29 

1. A contact committee ⌦ is established ⌫ under the aegis of the Commission. It shall be 
composed  of  representatives  of  the  competent  authorities  of  the  Member  States.  It  shall  be 
chaired  by  a  representative  of  the  Commission  and  meet  either  on  his  initiative  or  at  the 
request of the delegation of a Member State. 

(cid:208) 97/36/EC Art. 1 pt. 31 (adapted) 

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2. The tasks of ⌦ the contact ⌫ committee shall be: 

(cid:208) 97/36/EC Art. 1 pt. 31 

(a) 

to  facilitate  effective  implementation  of  this  Directive  through  regular  consultation 
on  any  practical  problems  arising  from  its  application,  and  particularly  from  the 
application of Article 2, as well as on any other matters on which exchanges of views 
are deemed useful; 

(b) 

to  deliver  own-initiative  opinions  or  opinions  requested  by  the  Commission  on  the 
application by the Member States of the provisions of this Directive; 

(c) 

(d) 

(e) 

to be the forum for an exchange of views on what matters should be dealt with in the 
reports which Member States must submit pursuant to Article 16 (3) ⌦ and ⌫ on 
⌦ their ⌫ methodology ; 

(cid:208) 97/36/EC Art. 1 pt. 31 (adapted) 

to  discuss  the  outcome  of  regular  consultations  which  the  Commission  holds  with 
representatives of broadcasting organisations, producers, consumers, manufacturers, 
service providers and trade unions and the creative community; 

(cid:208) 97/36/EC Art. 1 pt. 31 

(cid:208) 2007/65/EC Art. 1 pt. 26 

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, taking account of the Community's audiovisual policy, as 
well as relevant developments in the technical field; 

(f) 

to  examine  any  development  arising  in  the  sector  on  which  an  exchange  of  views 
appears useful. 

(cid:208) 97/36/EC Art. 1 pt. 31 

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(cid:208) 2007/65/EC Art. 1 pt. 27 

CHAPTER XI 

Cooperation between regulatory bodies of the Member States 

Article 30 

Member  States  shall  take  appropriate  measures  to  provide  each  other  and  the  Commission 
with the information necessary for the application of this Directive, in particular Articles 2, 3 
and 4 , notably through their competent independent regulatory bodies. 

(cid:208) 89/552/EEC 

CHAPTER XII 

Final provisions 

Article 31 

In fields which this Directive does not coordinate, it shall not affect the rights and obligations 
of  Member  States  resulting  from  existing  conventions  dealing  with  telecommunications  or 
broadcasting. 

(cid:208) 2007/65/EC Art. 3(2) 

Article 32 

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. 

(cid:208) 2007/65/EC Art. 1 pt. 29 

Article 33 

Not  later  than  19 December 2011,  and  every  three  years  thereafter,  the  Commission  shall 
submit to the European Parliament, to the Council and to 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. 

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That report shall also assess the issue of television advertising 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. 

(cid:208)  

Article 34 

Directive 89/552/EEC,  as  amended  by  the  Directives  listed  in  Annex I,  Part A,  is  repealed, 
without  prejudice  to  the  obligations  of  the  Member  States  relating  to  the  time-limits  for 
transposition into national law of the Directives set out in Annex I, Part B. 

References  to  the  repealed  Directive  shall  be  construed  as  references  to  this  Directive  and 
shall be read in accordance with the correlation table in Annex II. 

This Directive shall enter into force on 20 December 2009. 

Article 35 

(cid:208) 89/552/EEC 

Article 36 

This Directive is addressed to the Member States. 

Done at Brussels, […] 

For the European Parliament 
The President 
[…] 

For the Council 
The President 
[…] 

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(cid:207) 

ANNEX I 

Part A 

Repealed Directive with list of its successive amendments 
(referred to in Article 34) 

Directive 89/552/EEC of the European Parliament 
and of the Council 
(OJ L 298, 17.10.1989, p. 23) 

Directive 97/36/EC of the European Parliament and 
of the Council 
(OJ L 202, 30.7.1997, p. 60) 

Directive 2007/65/EC of the European Parliament 
and of the Council 
(OJ L 332, 18.12.2007, p. 27) 

only Article 1 

Part B 

List of time-limits for transposition into national law 
(referred to in Article 34) 

Directive 

Time-limit for transposition 

89/552/EEC 

97/36/EC 

2007/65/EC 

3 October 1991 

31 December 1998 

19 December 2009 

_____________ 

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ANNEX II 

CORRELATION TABLE 

Directive 89/552/EEC 

This Directive 

Article 1, introductory words 

Article 1(1), introductory words 

Article 1(a), introductory words 

Article 1(1)(a), introductory words 

Article 1(a), first indent 

Article 1(1)(a)(i) 

Article 1(a), second indent 

Article 1(1)(a)(ii) 

Article 1(b) to (m) 

Article 1(1)(b) to (m) 

Article 1(n)(i), introductory words 

Article 1(1)(n), introductory words 

Article 1(n)(i), first indent 

Article 1(1)(n)(i) 

Article 1(n)(i), second indent 

Article 1(1)(n)(ii) 

Article 1(n)(i), third indent 

Article 1(1)(n)(iii) 

Article 1(n)(i), fourth indent 

Article 1(2) 

Article 1(n)(ii), introductory words 

Article 1(3), introductory words 

Article 1(n)(ii), first indent 

Article 1(3)(i) 

Article 1(n)(ii), second indent 

Article 1(3)(ii) 

Article 1(n)(ii), third indent 

Article 1(3)(iii) 

Article 1(n)(iii) 

Article 2 

Article 1(4) 

Article 2 

Article 2a(1), (2) and (3) 

Article 3(1), (2) and (3) 

Article 2a(4), introductory words 

Article 3(4), introductory words 

Article 2a(4)(a) 

Article 3(4)(a) 

Article 2a(4)(b), introductory words 

Article 3(4)(b), introductory words 

Article 2a(4)(b), first indent 

Article 3(4)(b)(i) 

Article 2a(4)(b), second indent 

Article 3(4)(b)(ii) 

Article 2a(5) and (6) 

Article 3(5) and (6) 

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Article 3 

Article 3a 

Article 3b 

Article 3c 

Article 3d 

Article 3e 

Article 3f 

Article 3g(1) 

Article 4 

Article 5 

Article 6 

Article 7 

Article 8 

Article 9 

Article 10 

Article 11(2) 

Article 3g(2), first subparagraph, introductory 
words 

Article 11(3), first subparagraph, introductory 
words 

Article 3g(2), first subparagraph, first indent  Article 11(3), first subparagraph, point (a) 

Article  3g(2),  first  subparagraph,  second 
indent 

Article 11(3), first subparagraph, point (b) 

Article  3g(2),  second, 
subparagraphs 

third  and  fourth 

Article  11(3),  second, 
subparagraphs 

third  and  fourth 

Article 3g(3) 

Article 3g(4) 

Article 3h 

Article 3i 

Article 3j 

Article 3k 

Article 11(4) 

Article 11(1) 

Article 12 

Article 13 

Article 14 

Article 15 

Article 4(1), (2) and (3) 

Article 16(1), (2) and (3) 

Article 4(4) 

Article 5 

Article 9 

Article 10 

Article 11 

Article 14 

- 

Article 17 

Article 18 

Article 19 

Article 20 

Article 21 

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Article 15 

Article 18 

Article 18a 

Article 19 

Article 20 

Article 22 

Article 23 

Article 23a 

Article 23b 

Article 24 

- 

Article 26 

- 

- 

Article 27 

- 

- 

Article 22 

Article 23 

Article 24 

Article 25 

Article 26 

Article 27 

Article 28 

Article 29 

Article 30 

Article 31 

Article 32 

Article 33 

Article 34 

Article 35 

Article 36 

Annex I 

Annex II 

_____________ 

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