Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL amending Directive 2010/13/EU on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services in view of changing market realities
Date: 2016-05-25
Institutions: Directorate-General for Communications Networks, Content and Technology, European Commission
Subjects: advertising, audiovisual industry, audiovisual production, broadcasting, child protection, distance selling, provision of services, regulation of telecommunications, services of general interest

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   EUROPEAN COMMISSION  Brussels, 25.5.2016  COM(2016) 287 final 2016/0151 (COD)   Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL amending Directive 2010/13/EU on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services in view of changing market realities (Text with EEA relevance) {SWD(2016) 168 final} {SWD(2016) 169 final} {SWD(2016) 170 final} {SWD(2016) 171 final}  
 
EXPLANATORY MEMORANDUM 

1. 

• 

CONTEXT OF THE PROPOSAL 

Reasons for and objectives of the proposal 

The  audiovisual  media  landscape  is  changing  at  a  rapid  pace  due  to  ever-increasing 
convergence  between  television  and  services  distributed  via  the  internet.  Consumers 
increasingly access on-demand content via smart/connected TVs and portable devices. Young 
consumers,  particularly,  watch  videos,  including  user-generated  content,  on  the  internet. 
Traditional  broadcasting  in  the  EU  remains  strong  in  terms  of  viewership,  advertising 
revenues,  and  investment  in  content  (around  30%  of  revenues).  However,  new  business 
models  are  emerging.  Broadcasters  are  extending  their  activities  online  and  new  players 
offering  audiovisual  content  via  the  internet  (e.g.  video-on-demand  providers  and  video-
sharing platforms) are getting stronger and competing for the same audiences. However, TV 
broadcasting, video-on-demand and user-generated content are subject to different rules and 
varying levels of consumer protection. 

The  Digital  Single  Market  (DSM)  strategy  for  Europe1  calls  for  a  modernisation  of  the 
Audiovisual  Media  Services  Directive  (AVMSD)2  to  reflect  these  market,  consumption  and 
technological changes. It requires the Commission to focus on the scope of application of the 
AVMSD and on the nature of the rules applicable to all market players3 (in particular those 
for the promotion of European works4), the protection of minors and advertising rules.  

Pursuant  to  this  commitment  and  in  line  with  ‘Better  Regulation’  requirements5,  the 
Commission  carried  out  an  ex  post  evaluation  (also  called  ‘REFIT’).  It  assessed  the 
effectiveness,  efficiency,  relevance,  coherence  and  EU  added-value  of  the  AVMSD,  and 
pinpointed  areas  where  there  is  potential  for  simplification,  without  undermining  the 
objectives of the AVMSD.  

• 

Consistency with existing policy provisions in the policy area 

Council  Directive  89/552/EEC  as  amended  by  Directives  97/36/EC  and  2007/65/EC  and 
codified in Directive 2010/13/EU (AVMSD), covers both rules for ‘television broadcasting’ 
and  for  on-demand  audiovisual  media  services.  This  proposal  takes  into  account  changes  in 
the  audiovisual  landscape  since  the  last  revision  to  ensure  that  the  AVMSD  will  provide  a 
modernised, flexible and forward looking legal framework.  

1

Communication from the Commission "A digital single market strategy for Europe", 6 May 2015, COM(2015) 192 

final, http://ec.europa.eu/priorities/digital-single-market/docs/dsm-communication_en.pdf   
2 
Directive  2010/13/EU  of  the  European  Parliament  and  of  the  Council  of  10  March  2010  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 
More specifically, the DSM strategy mentions that "The Commission will examine whether the current system of 
rules applying to broadcast and to on-demand services should be adapted. It will also consider whether the current scope or 
the rules should be broadened to encompass new services and players that are currently not considered as audiovisual media 
services under the Directive and/or providers that fall outside its current geographical scope". 
4 
European works on Video on Demand platforms". 
5 
The AVMSD REFIT evaluation is announced in the Commission Staff Working Document "REFIT: Initial results 
of  the  mapping  of  the  acquis"  (SWD(2013)  401  final)  and  is  part  of  the  Commission's  2015  Work  Programme  (Annex  3 
(COM2014) 910 final of 16.12.2014). 

The  DSM  strategy  also  mentions  that  "The  Commission  will  also  work  on  measures  to  promote  catalogues  of 

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• 

Consistency with other Union policies 

This  proposal  complements  existing  EU  law,  in  particular  the  e-Commerce  Directive 
2000/31/EC,  Directive  2003/33/EC  on  advertising  and  sponsorship  of  tobacco  products, 
Directive  2005/29/EC  on  unfair  commercial  practices  and  Directive  2011/93/EU  on 
combating the sexual abuse and sexual exploitation of children and child pornography. 

In  December  2015,  the  Commission  adopted  a  proposal  for  a  European  Accessibility  Act6, 
which  sets  accessibility  requirements  for  a  wide  range  of  products  and  services  including 
audiovisual media services. Therefore, the revision of the AVMSD does not address the issue 
of accessibility. 

e-Commerce Directive 2000/31/EC (ECD) 

The  current  AVMSD  does  not  apply  to  user-generated  content  offered  on  video-sharing 
platforms since the providers of video-sharing platforms services often do not have editorial 
responsibility  for  the  content  stored  on  those  platforms.  In  many  cases  these  services  are 
subject to the e-Commerce Directive (ECD), as they constitute information society services.  

The  ECD  does  not  require  intermediaries  to  monitor  content  hosted  by  them;  in  fact,  it 
prohibits Member States from imposing a general obligation to monitor or to engage in active 
fact-finding indicating illegal activity (Article 15). Under the ECD, intermediaries – and more 
specifically providers of so-called 'hosting' services – are exempt from liability for any illegal 
information that they host (Article 14). Providers can only qualify as hosting service providers 
within  the  meaning  of  the  ECD  where  they  have  neither  knowledge  of  nor  control  over  the 
information  in  question.  This  exemption  from  liability  is  only  available  if  providers  ensure 
that, if illegal content is identified, they take expeditious action to disable access to or remove 
it. 

This proposal would complement the ECD on some points, as explained in section 5 below, 
while  leaving  the  abovementioned  provisions  of  the  ECD,  as  well  as  its  Article  3  on  the 
internal market, unaffected. 

Directive on advertising and sponsorship of tobacco products 2003/33/EC 

Directive  2003/33/EC  prohibits  advertising  for  cigarettes  and  other  tobacco  products  in  the 
press and other printed publications, in radio and in information society services. It also bans 
sponsorship,  by  tobacco  companies,  of  radio  programmes  and  of  cross-border  events. 
Moreover  recital  14  of  Directive  2003/33/EC  makes  it  clear  that  all  forms  of  audiovisual 
commercial  communications  for  cigarettes  and  other  tobacco  products  in  broadcast  services 
are prohibited by the AVMSD. Such restrictions have, through successive amendments, been 
extended  to  cover  all  audiovisual  commercial  communications,  including  sponsorship  and 
product  placement  in  audiovisual  media  services  (Articles  9(1)(d),  10(2)  and  11(4)(a) 
AVMSD).  In  addition,  pursuant  to  Article  20(5)(e)  of  Directive  2014/40/EU  on  the 
manufacture,  presentation  and  sale  of  tobacco  and  related  products7,  the  prohibitions 
applicable to communications concerning tobacco products under the AVMSD also apply to 
electronic cigarettes and refill containers. The prohibition on commercial communications in 
respect of tobacco and related products are recalled in a recital of the Directive now proposed.  

6 
COM(2015) 615 (http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=COM%3A2015%3A615%3AFIN)   
7 
Directive  2014/40/EU  of  the  European  Parliament  and  of  the  Council  of  3  April  2014  on  the 
approximation  of  the  laws,  regulations  and  administrative  provisions  of  the  Member  States  concerning  the 
manufacture, presentation and sale of tobacco and related products and repealing Directive 2001/37/EC (OJ L 
127, 29.4.2014, p. 1). 

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Unfair Commercial Practices Directive 2005/29/EC (UCPD) 

The  UCPD  is  the  main  body  of  legislation  on  business-to-consumer  commercial  practices, 
such as misleading advertising, in the EU. It applies to all business to consumer commercial 
practices, before, during and after a transaction has taken place, and online as well as offline. 

The UCPD provides three levels of consumer protection: 

(1) 

(2) 

(3) 

The  black-list  of  31  specific  commercial  practices  which  are  prohibited  in  all 
circumstances;   

Misleading and aggressive practices – to be assessed on a case-by-case basis; 

General  prohibition  of  unfair  practices  contrary  to  professional  diligence  –  to  be 
assessed on a case-by-case basis. 

Directive on combating the sexual abuse and sexual exploitation of children and 
child pornography 2011/93/EU  

The  Directive  on  combating  the  sexual  abuse  and  sexual  exploitation  of  children  and  child 
pornography  harmonises  throughout  the  Union  criminal  offences  relating  to  sexual  abuse 
committed against children, the sexual exploitation of children and child pornography. It also 
lays down minimum sanctions. 

• 

Consistency with international law obligations 

21  EU  Member  States  are  contracting  parties  to  the  1989  European  Convention  on 
Transfrontier Television (CETS No. 132) which was amended by a 1998 Protocol. The Union 
is not a party to the Convention.  

The  Convention  allows  contracting  parties  to  apply  stricter  or  more  detailed  rules  to 
programme services transmitted by broadcasters under their jurisdiction.  

To the extent that some of the existing AVMSD rules are less strict than the Convention rules, 
implementation of the AVMSD rules by EU Member States which are contracting parties to 
the  Convention  could  already  result  in  some  differences  between  EU  Member  States 
depending  on  whether  they  are  contracting  parties  to  the  Convention  in  respect  of  their 
international  obligations.  This  will  also  be  the  case  for  some  amendments  contained  in  this 
proposal,  which  would  introduce  in  the  AVMSD  further  rules  that  are  less  strict  than  the 
Convention rules. 

For  the  matters  covered  by  the  AVMSD  the  Union  has  acquired  exclusive  competence  to 
enter  into  international  agreements.  Any  changes  of  the  obligations  stemming  from  the 
Convention would thus require action on the part of the Union.  

2. 

• 

LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY 

Legal basis 

The AVMSD is based on the EU's powers to coordinate Member States laws to bring about 
the  freedom  to  provide  services  in  the  internal  market  (Article  53(1)  TFEU  in  conjunction 
with Article 62 TFEU). 

• 

Subsidiarity (for non-exclusive competence)  

The EU-wide dimension of the audiovisual market is constantly increasing, in particular due 
to online growth and the fact that TV channels are becoming more international. At the end of 
2013, 5 141 TV channels (not counting local channels and windows) were established in the 

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EU.  Of  these,  Almost  1989  of  them  targeted  foreign  markets  (either  EU  or  extra-EU).  This 
share had increased from 28 % in 2009 —year of implementation— to 38 % in 2013. As far 
as video-on-demand services are concerned, 31 % of the video-on-demand services available 
in Member State on average are established in another EU country (2015). This underpins the 
continued added value of the EU intervention.  

The proposal complies with both the subsidiarity and proportionality principles by preserving, 
in  general,  a  minimum  harmonisation  approach  and  improving  the  derogation  and 
circumvention  mechanisms.  This  will  allow  Member  States  to  take  their  national 
circumstances  into  account.    Member  States  have,  in  practice,  adopted  stricter  rules,  in 
particular as regards the definition of on-demand audiovisual media service, the setting-up of 
national  regulatory  authorities,  the  promotion  of  European  works,  the  protection  of  minors 
and commercial communications.  

Given  that  the  AVMSD  provides  minimal  harmonisation,  the  existing  rules  can  only  be 
simplified at EU level.  

As regards extending the scope of the AVMSD to video-sharing platforms, EU action ensures 
consistency with the services already covered by that Directive. Maximum harmonisation in 
this field prevents any potential future fragmentation resulting from national intervention.  

• 

Proportionality 

As  stated  above,  by  preserving  the  minimum  harmonisation  approach  and  cooperation 
mechanisms, the proposal will comply with the proportionality principle. 

• 

Choice of the instrument 

The proposed Directive recommends the use of co-regulation and self-regulation in particular 
with  regard  to  the  protection  of  minors,  the  fight  against  hate  speech  and  commercial 
communications. Such regimes are deemed to be broadly accepted by the main stakeholders 
and provide for effective enforcement. 

3. 

• 

RESULTS 
CONSULTATIONS AND IMPACT ASSESSMENTS 

EVALUATIONS, 

POST 

OF 

EX 

STAKEHOLDER 

Ex post evaluations/fitness checks of existing legislation 

The overall conclusion is that the AVMSD objectives are still relevant. The evaluation found 
that  the  country  of  origin  principle  has  enabled  the  development  and  free  circulation  of 
audiovisual  media  services  across  the  EU,  with  legal  certainty  and  resulted  in  lower 
compliance costs for providers and more choice for consumers.  
The  REFIT  evaluation  concluded  that  there  is  scope  for  simplification,  specifically  of  the 
procedures  that  support  the  application  of  the  ‘country  of  origin’  (COO)  principle  (i.e.  the 
criteria determining jurisdiction over providers and the derogation and cooperation procedures 
limiting freedom of reception and retransmission in specific cases) and of some commercial 
communications  rules.  Some  other  rules  are  no  longer  suited  to  achieving  the  policy 
objectives,  primarily  due  to  market  developments  and  changes  in  viewing  patterns.  The 
Directive  is  also  being  simplified  by  aligning  the  rules  on  protection  of  minors  for  TV 
broadcasting and on-demand services. 

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Stakeholder consultations 

• 
In  2013,  the  Commission  published  the  Green  Paper8  "Preparing  for  a  Fully  Converged 
Audiovisual  World:  Growth,  creation  and  values"  and  invited  stakeholders  to  share  their 
views  on  the  changing  media  landscape  and  borderless  internet  in  particular  on  market 
conditions, interoperability and infrastructure, and implications for EU rules. The outcomes of 
the Green Paper are reflected in the feedback document and executive summary of the replies 
published by the Commission in September 20149. 

With  a  view  to  the  current  revision  of  the  AVMSD,  the  Commission  carried  out  a  public 
consultation10  called  ‘The  AVMSD —  a  media framework  for  the  21st  century’  which took 
place from 6 July 2015 to 30 September 2015.  

The main results when it comes to policy options for the future were: 

– 

– 

– 

– 

convergence of views across stakeholders regarding the need for possible changes of 
the rules on the scope of application of the Directive, although there was no common 
pattern or clarity among stakeholders as regards the way forward; 

convergence of views on the need to ensure the independence of national regulators; 

support across stakeholders for maintaining the status quo as regards the country of 
origin  principle;  must-carry/findability;  accessibility  for  persons  with  disabilities; 
rules on major events for society, short news reports and right of reply; 

no  clear  consensus  among  stakeholders  on  commercial  communications,  protection 
of minors or the promotion of European works. 

The following trends emerged among different groups of contributors: 

– 

– 

– 

– 

• 

There  was  a  call  from  a  fair  share  of  representatives  of  the  broadcasting  sector  to 
ensure a level playing field either by regulating new services and/or ensuring more 
flexibility of existing rules. 

Consumers'  organisations  called  for  strengthening  of  the  AVMSD  rules  aimed  at 
protecting viewers, particularly vulnerable viewers.  

The  internet,  telecom  and  information  and  communication  technology  (ICT) 
industries called for refraining from new regulation, in order to preserve innovation. 

The  content  industry  called  for  strengthening  of  the  rules  aimed  at  promoting 
European works, across all audiovisual media services.  

Collection and use of expertise 

The Commission relied on the following external expert advice: 

– 

Policy  recommendations  from  other  EU  institutions,  in  particular  the  European 
Parliament11, the Council12, the European Economic and Social Committee13 and the 
Committee of the Regions14.  

http://ec.europa.eu/digital-agenda/en/news/consultation-green-paper-preparing-fully-converged-audiovisual-world-

8 
growth-creation-and-values   
9

10

https://ec.europa.eu/digital-agenda/en/news/publication-summaries-green-paper-replies  
http://ec.europa.eu/digital-agenda/en/news/public-consultation-directive-201013eu-audiovisual-media-services-avmsd-media-

framework-21st  
11

Three Own-initiative reports adopted by the European Parliament. A) The January 2015 (still to be adopted) "Towards a Digital 
Single Market Act" (2015/2147(INI)); B)the July 2013 "Connected TV" report (Rapporteur MEP Petra Kammerevert (S&D, DE)) calling on 
AVMSD,  
the 

Commission 

necessary 

evaluate 

extent 

which 

revise 

the 

the 

to 

to 

to 

is 

it 

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– 

– 

Data gathering on the AVMSD cost and benefits15. The questionnaire was drafted 
by a task force of Member States audiovisual regulators convened by the European 
Commission.  It  was  submitted  to  Member  States  regulators  in  the  European 
Regulators Group for Audiovisual Media Services (ERGA16), to the relevant sectors 
of  the  industry  and  to  consumer  organisations.  The  questionnaire  was  sent  in 
May/June 2015. It asked about the benefits and downsides of certain AVMSD rules 
and  sought  quantitative  evidence  in  terms  of  annual  revenue  or  direct  and  indirect 
costs of compliance. It covered rules on: 

1. 

2. 

3. 

4. 

Commercial communications 

European works 

The protection of minors 

The country of origin principle 

The reference period for the quantitative questions was 2010 to 2014, inclusive. 

The survey attracted 107 replies: 40 from commercial broadcasters (38 %), 20 from 
public  broadcasters  (19  %),  18  from  video-on-demand  providers  (17  %),  12  from 
national associations focusing on the protection of minors (12 %), 10 from national 
associations  representing  independent  producers  (10  %),  and  4  from  consumer 
association  (4  %).  One  association  representing  broadcasters  and  one  representing 
sales houses also participated. The respondents are established in 19 Member States. 

Studies  by  and  opinions  of  the  European  Regulators  Group  for  Audiovisual 
Media Services (ERGA).  In its 2015 work programme, ERGA committed itself to 
delivering analyses and reports on four main topics:  the independence of audiovisual 
regulatory  authorities;  material  jurisdiction  in  a  convergent  audiovisual  world; 
protecting  minors  in  a  converged  environment;  and  tackling  the  issue  of  territorial 
jurisdiction in the EU context. Each topic was dealt with by sub-groups comprising 
ERGA members. The first three reports were adopted via written procedure (in line 
with Article 11 of the ERGA Rules of Procedure) in December 2015. The report on 
territorial jurisdiction will be adopted in the course of 2016.  

in 

http://www.europarl.europa.eu/sides/getDoc.do?type=TA&reference=P7-TA-2013-0329&language=EN&ring=A7-2013-0212 C) The March 
2014 report, "Preparing for a Fully Converged Audiovisual World" (Rapporteur MEP Sabine Verheyen (EPP, DE)) which calls for a review 
of  the  AVMSD,  http://www.europarl.europa.eu/sides/getDoc.do?type=TA&reference=P7-TA-2014-0232&language=EN&ring=A7-2014-
0057 . 
12

Most  recently,  the  Council  conclusions  adopted  under  the  Italian  Presidency  of  the  EU  in  2014  inviting  the  Commission  to 
"Urgently complete the exercise of the review of the AVMSD in the light of the rapid technological and market changes resulting from the 
digital shift, and on the basis of the outcome of this review submit an appropriate proposal for the revision of this Directive as soon as 
possible, 
subsidiarity." 
http://www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/en/educ/145950.pdf  
13 
"Preparing 
http://www.eesc.europa.eu/?i=portal.en.ten-opinions.28469  
14 
the "Review of the Audiovisual Media Services Directive" – link to be published 
15 

Opinion  adopted  by  the  European  Economic  and  Social  Committee  in  September  2013  on  the  Green  Paper 
Values, 
Audiovisual  World: 

At its Plenary Session of 12-14 October 2015, the Committee of the Regions adopted an own-initiative opinion on 

As most of the provided information is confidential, it has been used in the Impact Assessment and the REFIT in an aggregated 
and anonymised way. For this reason the replies are not published. 
http://ec.europa.eu/digital-agenda/en/news/commission-decision-establishing-european-regulators-group-

Converged 

principle 

Creation 

Growth, 

respect 

Fully 

and 

the 

for 

of 

of 

a 

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audiovisual-media-services   

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– 

External  studies17  on  alcohol  advertising  exposure,  impact  of  online  marketing  on 
children,  independence  of  audiovisual  regulators,  self-  and  co-regulation  and 
standardisation:  

– 

– 

– 

– 

A  study  on  Alcohol  advertising  exposure,  to  assess  whether  rules  on 
audiovisual  commercial  communication  for  alcoholic  beverages  have  given 
minors the level of protection required18. 

A  study  on  the  impact  of  marketing  through  social  media,  online  games 
and  mobile  applications  on  children's  behaviour.  The  final  report  will  be 
published in May 201619. 

A study on the independence of audiovisual regulators, updating a previous 
study  on  independence  of  regulatory  authorities.  It  reports  on  recent  changes 
and  developments  in  Member  States  and  candidate  countries  as  regards  the 
independence  and  efficient  functioning  of  the  audiovisual  media  services 
regulatory bodies. The final report was published20 on 8 December 2015. 

A study on Self-regulation that reviews existing self-regulation approaches in 
a  range  of  Member  States  and  aims  at  providing  information  about  relevant 
evidence of existing schemes and their effectiveness. The final report is due in 
the second quarter of 2016. 

Four Studies on survey and data gathering to support the impact assessment of 
a  possible  new  legislative  proposal  on  the  AVMSD  commissioned  under  the 
Framework  Contract  EAC-22-20121.  These  cover:  commercial  communication, 
protection of minors, cultural diversity and media freedom/public interest and access 
for  persons with  disabilities.  The  draft  final  reports  of the  study  will  be  sent  to  the 
Commission in the second quarter of 2016. 

Two  reports  of  the  European  Audiovisual  Observatory  (EAO)  (‘Study  on  data 
and information on the costs and benefits of the Audiovisual Media Service Directive 
(AVMSD)’22  and  ‘On-demand  markets  in  the  European  Union  —2014  and  2015 
developments’23) carried out in the context of Framework Contract  PN/2011-27/A6. 
These two reports focus on: 

the measurement of audiences;  

online advertising in the EU;  

the EU subscription video-on-demand market in 2014;  

the visibility of films in on-demand services;  

the proportion of European fiction works on a sample of TV channels; 

– 

– 

(1) 

(2) 

(3) 

(4) 

(5) 

http://ted.europa.eu/udl?uri=TED:NOTICE:212396-2015:TEXT:EN:HTML&ticket=ST-1292379-

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SKem8OGQ1reJn1IxAZqVGszP2zjXhYuZOoStsF8rBu0ZCOZKgO05NbMy9k6hQrTzIimWUTdcKGfvm49lhwu7y5m-
Jj71zxYb8yr5J3R6eCTiGK-TqeqixAzhASPjqjbmnf8X5hXPzlpiWbUx9btUwoJzMau  
18 
services 
19

https://ec.europa.eu/digital-single-market/en/news/study-exposure-minors-alcohol-advertising-tv-and-online-

http://ec.europa.eu/consumers/consumer_evidence/behavioural_research/impact_media_marketing_study

/index_en.htm 
http://ec.europa.eu/digital-agenda/en/news/study-audiovisual-media-services  
http://ted.europa.eu/udl?uri=TED:NOTICE:279501-2014:TEXT:EN:HTML  
https://ec.europa.eu/digital-single-market/en/news/study-data-and-information-costs-and-benefits-audiovisual-

20 
21 
22 
media-service-directive-avmsd 
23 

https://ec.europa.eu/digital-single-market/en/news/demand-audiovisual-markets-european-union-smart-20120028 

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(6) 

(7) 

on-demand  audiovisual  services,  including  revenues  and  investment  in  original 
programming; 

linear  audiovisual  services, 
programming  

including  revenues  and 

investment 

in  original 

• 

Impact assessment 

The executive summary of the Impact assessment and the positive opinion of the Regulatory 
Scrutiny Board can be found on the website of the Commission: XXX 

The  following  options  have  been  examined  (for  each  section,  the  preferred  option  is 
highlighted): 

(8) 

Options addressing the problem of  insufficient protection of  minors  and consumers 
in video-sharing platforms 

Option A encourages self-regulation for protection of minors and consumers on video-sharing 
platforms 

Option B imposes an obligation of means on video-sharing platforms for protection of minors 
and hate speech, implemented through co-regulation.  

(9) 

Options  addressing  the  problem  of  the  lack  of  a  level  playing  field  and  internal 
market weaknesses 

(a) Promotion of European works 

Option A gives more flexibility to both TV broadcasting and on-demand services in the way 
they implement the obligations to promote European works.  

Option B maintains the status quo for TV broadcasting and reinforces the rules for on-demand 
service providers. 

(b) Protection of minors in on-demand services 

Option  A  increases  the  level  of  protection  of  minors  for  on-demand  audiovisual  media 
services, simplifies the notion of harmful content and encourages EU co-regulation on content 
descriptors. 

(c) Country of origin principle 

Option A simplifies and improves jurisdiction rules and cooperation procedures 

(d) Independence of regulators 

Option  A  requires  Member  States  to  have  an  independent  regulatory  authority  and  sets  a 
number of requirements to support their independence and effectiveness. ERGA coordination 
and advisory role is reinforced and embedded in the AVMSD. 

(10) 

Option addressing the problem of the rules on commercial communications no longer 
fit for purpose 

Option A makes some of the rules for audiovisual commercial communications more flexible. 

The combination of preferred options is deemed to strike the best balance between the need to 
introduce  flexibility  with  respect  to  the  current  level  of  regulation  and  ensuring  adequate 
consumer protection. 

EN 

9 

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On  the  one  hand,  the  industry  will  benefit  from  more  flexible  quantitative  rules  on 
commercial communications. The increased efficiency of the country of origin principle and 
the requirements for the independence of regulators would improve the business environment 
in which audiovisual players operate. 

On  the  other  hand,  consumers  will  be  guaranteed  a  high  level  of  protection  through  the 
limited  extension  of  the  AVMSD  to  video-sharing  platforms  and  the  reinforcement  of  the 
requirements  applicable  to  on-demand  services  in  terms  of  the  protection  of  minors. 
Consumers will also benefit from a greater access to European works in on-demand services. 

All  options take into account, where appropriate, the need for flexibility for the industry  by 
considering  possible  implementation  via  self  and/or  co-regulation  (scope  of  application, 
information on harmful content).   

Most of the options complement each other. For example, the independence of regulators will 
be of the utmost importance if Members States decide to entrust them with the application of 
the  new  rules  regarding  video-sharing  platforms.  Also  the  potential  increase  in  audiovisual 
media service providers' revenues deriving from the greater flexibility of quantitative rules on 
advertising will release a potential for an increased contribution to the production of European 
works. 

The combination of options achieves a more level playing field between the different players 
in  the  audiovisual  media  market.  This  is  for  instance  realised  by  levelling  up  certain 
requirements for on-demand services and video-sharing platforms in relation to the protection 
of  consumer  or  promotion  of  European  works  while  providing  more  flexibility  to  TV 
broadcasting services on certain rules on commercial communications.  

• 

Regulatory fitness and simplification 

The  ex  post  evaluation  identified  commercial  communications  as  one  area  where  more 
flexibility could be provided in particular as regards TV broadcasters. 

The  market  for  TV  broadcasting  has  evolved  and  there  is  a  need  for  more  flexibility  with 
regard  to  audiovisual  commercial  communications,  in  particular  for  quantitative  rules  for 
linear audiovisual media services, product placement and sponsorship. The emergence of new 
services, including without advertising, has led to a greater choice for viewers, who can easily 
switch  to  alternative  offers.  Product  placement  has  the  potential  to  generate  substantial 
additional resources for media service providers. The regulatory framework has to be aligned 
to  this  new  context,  namely  via  more  flexibility  with  respect  to  the  rules  for  broadcasting 
services.  Against  this  backdrop,  the  proposal  allows  (in  certain  circumstances)  product 
placement and introduces more flexibility as regards the quantitative rules. At the same time, 
the proposal takes into account evidence24 collected on the effect that product placement can 
have on children by continuing to limit their exposure to such content. 

As regards possible savings for service providers, it would be limited. Advertising scheduling 
is  a  core  component  of  broadcast  programming  and  the  quantitative  rules  imposed  by  the 
AVMSD  are  only  a  small  part  of  a  large  number  of  parameters  taken  into  account  in  TV 
scheduling  strategies  aiming  at  optimising  audience  and  revenue.  The  costs  associated  with 
broadcast programming, including IT costs, are ‘business as usual’, i.e. costs endured even in 
the absence of the AVMSD. 

24

Study on the impact of marketing through social media, online games and mobile applications on children's behaviour, European 

Commission: http://ec.europa.eu/consumers/consumer_evidence/behavioural_research/impact_media_marketing_study/index_en.htm 

EN 

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As regards national regulatory authorities, there would not be any incremental administrative 
cost for them. Currently, regulators' monitoring and enforcement activities with respect to the 
20%  limitation  of  advertising  per  hour  on  television  amount  to  up  to  EUR  1  million25.  As 
regards product placement and sponsorship rules, these costs amount respectively up to EUR 
2.2 million and EUR 2.1 million per year at EU level26. As an important share of these costs 
derive  from  the  application  of  subjective  criteria,  such  as  the  undue  prominence  of  product 
placement,  regulators  will  certainly  lower  their  current  costs.  It  is  however  not  possible  to 
quantify precisely these cost savings. 

As  regards  small  and  medium-sized  enterprises  (SMEs)  and  micro  enterprises,  the  proposal 
provides  for  possible  exemptions  for  the  provisions  related  to  the  promotion  of  European 
works. Indeed, Member States would be allowed to introduce exceptions for thematic or low 
audience audiovisual media services. 

For the provisions addressing protection of consumer including minors, the proposal does not 
foresee  any  exemptions  for  SMEs  and  micro  enterprises  as  it  touches  extremely  important 
values.  

• 

Fundamental rights 

The  proposal  takes  also  full  account  of  the  fundamental  rights  and  principles  recognised  by 
the Charter of Fundamental Rights of the European Union, in particular the right to respect for 
private and family life and the protection of personal data (Articles 7 and 8), the freedom of 
expression and information (Article 11), the freedom to conduct a business (Article 16) and 
the prohibition of discrimination (Article 21), the rights of the child (Article 24) and the right 
to an effective remedy and a fair trial (Article 47). 

4. 

BUDGETARY IMPLICATIONS 

The proposal has no implications for the EU budget.  

5. 

• 

OTHER ELEMENTS 

Implementation plans and monitoring, evaluation and reporting arrangements 

Monitoring of the implementation will continue to be assured by the Commission on the basis 
of: 

– 

– 

– 

– 

Application reports by the Commission, on the Directive as a whole, two years after 
the adoption of the Directive and every three years thereafter; 

Reports  on  the  application  of  the  provisions  related  to  the  promotion  of  European 
works every two years (for TV broadcasting and on-demand services); 

Monitoring  of  the  implementation  of  the  provisions  on  video-sharing  platforms  on 
the basis of an independent study carried out after the transposition; 

Monitoring  of  the  implementation  of  the  provision  on  content  descriptors  for 
protection of minors.  

25

Study on defining a framework for the monitoring of advertising rules under the AVMSD: based on the current average value for 
the monitoring of 1 linear provider established in the EU (PPP adjusted) which is derived from a sample of the regulatory costs in 7 Member 
States  which can be considered as a representative sample of different approaches to fulfilling regulatory responsibilities with regard to the 
monitoring and enforcement of the quantitative rules. It is further assumed that regulators focus their regulatory activities on linear services 
which have more than 0,5 % of the audience share. 
26

Study on defining a framework for the monitoring of advertising rules under the AVMSD 

EN 

11 

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Explanatory documents (for directives) 

• 

N/A 

• 

Detailed explanation of the specific provisions of the proposal 

The country of origin principle for media  service providers is maintained and  reinforced by 
simplifying  the  rules  determining  which  country  has  jurisdiction  and  improving  the 
derogation mechanisms in cases of exceptions.  

The  amended  Directive  will  continue  to  be  based  on  minimum  harmonisation.  However,  a 
higher  degree  of  harmonisation  is  sought  by  reinforcing  the  independence  of  audiovisual 
regulators.  This  is  an  important  novelty,  given  the  key  role  of  audiovisual  regulators  in 
shaping and preserving the  internal market.  Moreover, it is highly relevant for guaranteeing 
the pluralism of the media. The proposal reinforces the role of the European Regulators Group 
for Audiovisual Media Services (ERGA) by giving it more tasks when advising and assisting 
the  Commission  in  consistent  implementation  of  the  directive  in  all  Member  States.  As  a 
consequence,  the  Commission  Decision  of  3  February  2014  on  establishing  the  European 
Regulators Group for Audiovisual Media Services will be repealed when the Directive enters 
into force. 

Article  7  of  the  current  Directive  is  deleted  given  that  the  proposed  European  Accessibility 
Act already sets stricter common accessibility requirements for media service providers. 

Regarding  the  protection  of  minors,  the  revised  Directive  provides  for  alignment  of  the 
standards of protection for TV broadcasting and on-demand services. Article 12 requires that 
programmes that may impair the physical, mental or moral development of minors are only 
made available in such a way as to ensure that minors will not normally hear or see them. This 
is regardless of whether such programmes are broadcast by TV broadcasters or provided by 
on-demand media service providers. With a view to this alignment, Article 27 of the current 
Directive (applicable to TV broadcasting only) is removed.    

The revised Directive creates a more level playing field in the promotion of European works 
by  obliging  on-demand  services  to  reserve  at  least  20%  share  for  European  works  in  their 
catalogues and to ensure adequate prominence of such works (Article 13). Article 13 will also 
allow Member States to impose financial contributions (direct investments or levies allocated 
to national  film  funds) to on-demand services in their jurisdictions as well as,  under  certain 
conditions,  to  those  established  in  a  different  Member  State  but  targeting  their  national 
audiences.  In  order  to  ensure  that  obligations  on  promotion  of  European  works  do  not 
undermine  market  development  and  to  allow  for  the  entry  of  new  players  in  the  market, 
companies  with  no  significant  presence  on  the  market  should  not  be  subject  to  such 
requirements. This is in particular the case for companies with a low turn-over. 

This proposal achieves a balance between competitiveness and consumer protection by, on the 
one  hand,  introducing  more  flexibility  for  all  audiovisual  media  services  on  product 
placement and sponsorship and increased flexibility for TV broadcasting. The hourly limit is 
replaced  by  a  daily  limit  of  20%  of  advertising  during  the  period  between  07:00  and  23:00 
(Article 23). Films made for television, cinematographic works and news could be interrupted 
more  often  (Article  20)  and  isolated  spots  would  be  admissible  (Article  19).  On  the  other 
hand, the future Directive will also strengthen provisions to protect minors from inappropriate 
audiovisual  commercial  communications  of  foods  high  in  fat,  salt/sodium  and  sugars  and 
alcohol  beverages  by,  where  necessary,  encouraging  codes  of  conduct  at  EU  level  (Article 
9(2) and (4)). 

EN 

12 

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A further new feature is the extension of its scope to cover, in certain respects, video-sharing 
platform services which do not have editorial responsibility for the content that they store but 
which organise that content, through various means.  

The  amended  Directive  would  introduce  an  obligation  on  Member  States  to  ensure  that, 
within their field of responsibility, video-sharing platform providers put in place, preferably 
through co-regulation,  appropriate measures to: i) protect minors  from harmful content; and 
ii) protect all citizens from incitement to violence or hatred. The proposal sets out what those 
measures  can  entail,  as  appropriate  in  an  individual  case.  The  system  would  be  compatible 
with the liability exemption for hosting service providers set out in Article 14 ECD, in as far 
as  that  provision  applies  in  a  particular  case,  because  these  obligations  relate  to  the 
responsibilities of the provider in the organisational sphere and do not entail liability for any 
illegal information stored on the platforms as such.  

Member States continue to be bound by the rules of the ECD. They would consequently not 
be  allowed  to  impose  on  providers  any  general  obligation  to  monitor  content  or  to  actively 
engage  in  fact-finding,  without  precluding  the  imposition  of  monitoring  requirements  in 
specific cases (Article 15 ECD).  

Member States would not be allowed to require video-sharing platform providers under their 
jurisdiction to apply stricter measures than the ones provided for in the Directive, as amended. 
This  is  without  prejudice  to  any  measures  which  Member  States  may  apply  in  line  with 
Directive 2000/31/EC with respect to illegal content stored on the platforms. 

Furthermore,  this  is  also  without  prejudice  to  Article  25  of  Directive  2011/93/EU,  which 
requires Member States to take measures against websites containing or disseminating child 
pornography. In particular, it provides that Member States may take measures to block access 
to web pages containing or disseminating child pornography towards the Internet users within 
their territory, subject to safeguards to ensure the transparency, necessity and proportionality 
of such measures as well as the possibility for legal redress. 

With respect to the provision of information society services provided from another Member 
State,  the  ECD  sets  out  the  principle  of  country  of  origin,  subject  to  a  number  of  possible 
exceptions  (Article  3).  This  system  will  continue  to  apply  to  video-sharing  platforms 
providers. The proposal seeks to ensure that the same rules also apply to such providers which 
do  not  have  an  establishment  in  a  Member  State,  but  which  have  a  parent  company,  a 
subsidiary or another entity of the same group with such an establishment.   

The Commission would facilitate, with ERGA's support, the coordination of codes of conduct 
at  EU  level.  Moreover,  a  complaint  and  redress  mechanism  should  be  foreseen  at  national 
level. 

EN 

13 

   EN 

 
2016/0151 (COD) 

Proposal for a 

DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 

amending Directive 2010/13/EU on the coordination of certain provisions laid down by 
law, regulation or administrative action in Member States concerning the provision of 
audiovisual media services in view of changing market realities 

(Text with EEA relevance) 

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, 

Having  regard  to  the  Treaty  on  the  Functioning  of  the  European  Union,  and  in  particular 
Articles 53(1) and 62 thereof, 

Having regard to the proposal from the European Commission, 

After transmission of the draft legislative act to the national parliaments, 

Acting in accordance with the ordinary legislative procedure, 

Whereas: 

(1) 

27 

28 

29 

The  last  substantive  amendment  to  Directive  89/552/EEC  of  the  Council27,  later 
codified  by  Directive  2010/13/EU  of  the  European  Parliament  and  of  the  Council28, 
was  made  in  2007  with  the  adoption  of  Directive  2007/65/EC  of  the  European 
Parliament and of the Council29. Since then, the market of audiovisual media services 
has evolved significantly and rapidly. Technical developments allow for new types of 
services and user experiences. The viewing habits, particularly of younger generations, 
have changed significantly. While the main TV screen remains an important device to 
share audiovisual experiences, many viewers have moved to other, portable devices to 
watch audiovisual content. Traditional TV content accounts still for a major share of 
the average daily viewing time. However, new types of content, such as short videos 
or  user-generated  content,  gain  increasing  importance  and  new  players,  including 
providers  of  video-on-demand  services  and  video-sharing  platforms,  are  now  well-
established. 

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) 
(OJ L 298, 17.10.1989, p. 23). 
Directive  2010/13/EU  of  the  European  Parliament  and  of  the  Council  of  10  March  2010  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) 
(OJ L 95, 15.4.2010, p. 1). 
Directive 2007/65/EC of the European Parliament and of the Council of 11 December 2007 amending 
Council Directive 89/552/EEC on the coordination of certain provisions laid down by law, regulation or 
administrative action in Member States concerning the pursuit of television broadcasting activities (OJ 
L 332, 18.12.2007, p. 27). 

EN 

14 

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(2) 

(3) 

(4) 

(5) 

(6) 

(7) 

On  6  May  2015,  the  Commission  adopted  "A  Digital  Single  Market  Strategy  for 
Europe"30 in which it announced a review of Directive 2010/13/EU. 

Directive  2010/13/EU  should  remain  applicable  only  to  those  services  the  principal 
purpose  of  which  is  the  provision  of  programmes  in  order  to  inform,  entertain  or 
educate. The principal purpose requirement should be also considered to be met if the 
service has audiovisual content and form which is dissociable from the main activity 
of  the  service  provider,  such  as  stand-alone  parts  of  online  newspapers  featuring 
audiovisual programmes or user-generated videos where those parts can be considered 
dissociable from their main activity. Social media services are not included, except if 
they  provide  a  service  that  falls  under  the  definition  of  a  video-sharing  platform.  A 
service  should  be  considered  to  be  merely  an  indissociable  complement  to  the  main 
activity as a result of the links between the audiovisual offer and the main activity. As 
such, channels or any other audiovisual services under the editorial responsibility of a 
provider  may  constitute  audiovisual  media  services  in  themselves,  even  if  they  are 
offered  in  the  framework  of  a  video-sharing  platform  which  is  characterised  by  the 
absence  of  editorial  responsibility.  In  such  cases,  it  will  be  up  to  the  providers  with 
editorial responsibility to abide by the provisions of this Directive.  

In  order  to  ensure  the  effective  implementation  of  this  Directive,  it  is  crucial  for 
Member States to keep up-to-date records of the audiovisual media service providers 
and video-sharing platform providers under their jurisdiction and regularly share those 
records with their competent independent regulatory authorities and the Commission. 
Those  records  should  include  information  about  the  criteria  on  which  jurisdiction  is 
based.  

Establishing  jurisdiction  requires  an  assessment  of  factual  situations  against  the 
criteria laid down in Directive 2010/13/EU. The assessment of such factual situations 
might  lead  to  conflicting  results.  In  the  application  of  the  cooperation  procedures 
provided  for  in  Articles  3  and  4  of  Directive  2010/13/EU,  it  is  important  that  the 
Commission  can  base  its  findings  on  reliable  facts.  The  European  Regulators  Group 
for  Audiovisual  Media  Services  (ERGA)  should  therefore  be  empowered  to  provide 
opinions on jurisdiction upon the Commission's request.  

The procedures and conditions for restricting freedom to provide and receive services 
should be the same for linear and non-linear services.  

In  its  Communication  to  the  European  Parliament  and  to  the  Council  on  Better 
Regulation for Better Results – an EU Agenda31, the Commission stressed that when 
considering policy  solutions,  it  will  consider  both  regulatory  and  well-designed  non-
regulatory  means,  modelled  on  the  Community  of  practice  and  the  Principles  for 
Better Self- and Co-regulation32. A number of codes set up in the areas coordinated by 
the  Directive  have  proved  to  be  well  designed,  in  line  with  the  Principles  for  Better 
Self-  and  Co-regulation.  The  existence  of  a  legislative  backstop  has  been  considered 
an  important  success  factor  in  promoting  compliance  with  a  self-  or  co-regulatory 
code.  It  is  equally  important  that  the  codes  establish  specific  targets  and  objectives 
allowing for the regular, transparent and independent monitoring and evaluation of the 
objectives  aimed  by  the  codes.  Graduated  sanctions  which  maintain  an  element  of 
proportionality  are  usually  considered  to  be  an  effective  approach  in  enforcing  a 

30 
31 
32 

COM(2015) 192 final 
COM(2015) 215 final 
https://ec.europa.eu/digital-single-market/communities/better-self-and-co-regulation 

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(8) 

(9) 

scheme.  These  principles  should  be  followed  by  the  self-  and  co-regulatory  codes 
adopted in the areas coordinated by this Directive. 

In  order  to  ensure  coherence  and  give  certainty  to  businesses  and  Member  States' 
authorities,  the  notion  of  "incitement  to  hatred"  should,  to  the  appropriate  extent,  be 
aligned  to  the  definition  in  the  Council  Framework  Decision  2008/913/JHA  of  28 
November  2008  on  combating  certain  forms  and  expressions  of  racism  and 
xenophobia by means of criminal law which defines hate speech as "publicly inciting 
to violence or hatred". This should include aligning the grounds on which incitement 
to violence or hatred is based. 

In  order  to  empower  viewers,  including  parents  and  minors,  in  making  informed 
decisions  about  the  content  to  be  watched,  it  is  necessary  that  audiovisual  media 
service providers provide sufficient information about content that may impair minors' 
physical,  mental  or  moral  development.  This  could  be  done,  for  instance,  through  a 
system of content descriptors indicating the nature of the content. Content descriptors 
could be delivered through written, graphical or acoustic means.  

(10)  Certain  widely  recognised  nutritional  guidelines  exist  at  national  and  international 
level, such as the WHO Regional Office for Europe's nutrient profile model, in order 
to  differentiate  foods  on  the  basis  of  their  nutritional  composition  in  the  context  of 
foods  television  advertising  to  children.  Member  States  should  be  encouraged  to 
ensure that self-and co-regulatory codes of conduct are used to effectively reduce the 
exposure of children and minors to audiovisual commercial communications regarding 
foods and beverages that are high in salt, sugars or fat or that otherwise do not fit these 
national or international nutritional guidelines.  

(11)  Similarly, Member States should be encouraged to ensure that self-and co-regulatory 
codes of conduct are used to effectively limit the exposure of children and minors to 
audiovisual  commercial  communications  for  alcoholic  beverages.  Certain  co-
regulatory  or  self-regulatory  systems  exist  at  Union  and  national  level  in  order  to 
market  responsibly  alcoholic  beverages,  including 
in  audiovisual  commercial 
communications.  Those  systems  should  be  further  encouraged,  in  particular  those 
aiming  at  ensuring  that  responsible  drinking  messages  accompany  audiovisual 
commercial communications for alcoholic beverages.  

(12) 

In order to remove barriers to the free circulation of cross-border services within the 
Union, it is necessary to ensure the effectiveness of self- and co-regulatory measures 
aiming,  in  particular,  at  protecting  consumers  or  public  health.  When  well  enforced 
and monitored, codes of conduct at Union level might be a good means of ensuring a 
more coherent and effective approach.   

(13)  The  market  for  TV  broadcasting  has  evolved  and  that  there  is  a  need  for  more 
flexibility  with  regard  to  audiovisual  commercial  communications,  in  particular  for 
quantitative  rules  for  linear  audiovisual  media  services,  product  placement  and 
sponsorship. The emergence of new services, including without advertising, has led to 
a greater choice for viewers, who can easily switch to alternative offers. 

(14)  Sponsorship represents an important means of financing audiovisual media services or 
programmes  while  promoting  a  legal  or  physical  person's  name,  trade  mark,  image, 
activities  or  products.  As  such,  for  sponsorship  to  constitute  a  valuable  form  of 
advertising  technique  for  advertisers  and  audiovisual  media  service  providers, 
sponsorship  announcements  can  contain  promotional  references  to  the  goods  or 
services of the sponsor, while not directly encouraging the purchase of the goods and 

EN 

16 

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services. Sponsorship announcements should continue to clearly inform the viewers of 
the  existence  of  a  sponsorship  agreement.  The  content  of  sponsored  programmes 
should  not  be  influenced  in  such  a  way  as  to  affect  the  audiovisual  media  service 
provider's editorial independence.  

(15)  The liberalisation of product placement has not brought about the expected take-up of 
this  form  of  audiovisual  commercial  communication.  In  particular,  the  general 
prohibition of product placement with some exceptions has not created legal certainty 
for audiovisual media service providers. Product placement should thus be allowed in 
all audiovisual media services, subject to exceptions.  

(16)  Product placement should not be admissible in news and current affairs programmes, 
consumer  affairs  programmes,  religious  programmes  and  programmes  with  a 
significant  children’s  audience.  In  particular,  evidence  shows  that  product  placement 
and embedded advertisements can affect children’s behaviour as children are often not 
able to recognise the commercial content. There is thus a need to continue to prohibit 
product  placement  in  programmes  with  a  significant  children’s  audience.  Consumer 
affairs programmes are programmes offering advice to viewers, or including reviews 
on  the  purchase  of  products  and  services.  Allowing  product  placement  in  such 
programmes  would  blur  the  distinction  between  advertising  and  editorial  content  for 
viewers who may expect a genuine and honest review of products or services in such 
programmes.  

(17)  The rule that a product should not be given undue prominence has proved difficult to 
apply  in  practice.  It  also  restricts  the  take-up  of  product  placement  which,  by 
definition,  involves  some  level  of  prominent  exposure  to  be  able  to  generate  value. 
The requirements for programmes containing product placement should thus focus on 
clearly informing the viewers of the existence of product placement and on ensuring 
that the audiovisual media service provider's editorial independence is not affected.  

(18)  As the increase in the number of new services has led to a greater choice for viewers, 
broadcasters are given greater flexibility with regard to the insertion of advertising and 
teleshopping spots where this does not unduly impair the integrity of programme. Yet, 
in  order  to  safeguard  the  specific  character  of  the  European  television  landscape, 
interruptions for cinematographic works and films made  for television  as well as  for 
some  categories  of  programmes  that  still  need  specific  protection  should  remain 
limited.  

(19)  While  this  Directive  does  not  increase  the  overall  amount  of  admissible  advertising 
time  during  the  period  from  7:00  to  23:00,  it  is  important  for  broadcasters  to  have 
more  flexibility  and  to  be  able  to  decide  when  to  place  advertising  in  order  to 
maximise  advertisers'  demand  and  viewers'  flow.  The  hourly  limit  should  thus  be 
abolished  while  a  daily  limit  of  20%  of  advertising  within  the  period  from  7:00  to 
23:00 should be introduced.  

(20)  Many broadcasters are part of larger media groups and make announcements not only 
in connection with their own programmes and ancillary products directly derived from 
those programmes but also in relation with programmes from other entities belonging 
to  the same  media group. Transmission  time  allotted to  announcements  made  by the 
broadcaster in connection with programmes from other entities belonging to the same 
media  group  should  not  be  included  in  the  maximum  amount  of  daily  transmission 
time that may be allotted to advertising and teleshopping.  

EN 

17 

   EN 

(21)  Providers  of  on-demand  audiovisual  media  services  should  promote  the  production 
and  distribution  of  European  works  by  ensuring  that  their  catalogues  contain  a 
minimum share of European works and that those are given enough prominence.  

(22) 

In order to ensure adequate levels of investment on European works, Member States 
should  be  able  to  impose  financial  obligations  to  on-demand  service  providers 
established  on  their  territory.  Those  obligations  can  take  the  form  of  direct 
contributions  to  the  production  of  and  acquisition  of  rights  in  European  works.  The 
Member States could also impose levies payable to a fund, on the basis of the revenues 
made  with  on-demand  services  that  are  provided  in  and  targeted  towards  their 
territory.  This  Directive  clarifies  that,  given  the  direct  link  between  financial 
obligations  and  Member  States'  different  cultural  policies,  Member  States  are  also 
allowed  to  impose  such  financial  obligations  on  providers  of  on-demand  services 
established  in  another  Member  State  which  are  targeted  towards  its  territory.  In  this 
case  financial obligations should only  be  charged on the revenues generated through 
the audience in that Member State.  

(23)  When  assessing  on  a  case-by-case  basis  whether  an  on-demand  audiovisual  media 
service  established  in  another  Member  State  is  targeting  audiences  in  its  territory,  a 
Member  State  shall  refer  to  indicators  such  as  advertisement  or  other  promotions 
specifically aiming at customers in its territory, the main language of the service or the 
existence  of  content  or  commercial  communications  aiming  specifically  at  the 
audience in the Member State of reception.  

(24)  When  Member  States  impose  financial  contributions  to  providers  of  on-demand 
services  such  contributions  shall  seek  an  adequate  promotion  of  European  works. 
while avoiding risks of double imposition for service providers. With this view, if the 
Member  State  where  the  provider  is  established  imposes  a  financial  contribution,  it 
shall take into account any financial contributions imposed by targeted Member States. 

(25) 

In order to ensure that obligations on promotion of European works do not undermine 
market  development  and  to  allow  for  the  entry  of  new  players  in  the  market, 
companies  with  no  significant  presence  on  the  market  should  not  be  subject  to  such 
requirements. This is in particular the case for companies with a low turnover and low 
audiences  and 
in  Commission 
small  and  micro  enterprises  as  defined 
Recommendation  2003/361/EC33.  It  could  also  be  inappropriate  to  impose  such 
requirements in cases where – given the nature or theme of the on-demand audiovisual 
media services– they would be impracticable or unjustified. 

(26)  There are new challenges, in particular in connection with video-sharing platforms, on 
which users - particularly minors - increasingly consume audiovisual content. In this 
context,  harmful  content  and  hate  speech  stored  on  video-sharing  platforms  have 
increasingly  given  rise  to  concern.  It  is  necessary,  in  order  to  protect  minors  from 
harmful  content  and  all  citizens  from  content  containing  incitement  to  violence  or 
hatred, to set out proportionate rules on those matters.  

(27)  As regards commercial communications on video-sharing platforms, they are already 
regulated  by  Directive  2005/29/EC  of  the  European  Parliament  and  of  the  Council, 
including 
which  prohibits  unfair  business-to-consumer  commercial  practices, 
misleading  and  aggressive  practices  occurring  in  information  society  services.  As 
regards  commercial  communications  concerning  tobacco  and  related  products  in 

33 

Commission Recommendation 2003/361/EC of 6 May 2003 concerning the definition of micro, small 
and medium-sized enterprises (OJ L 124, 20.5.2003, p. 36). 

EN 

18 

   EN 

                                                 
the  existing  prohibitions  provided  for 

video-sharing  platforms, 
in  Directive 
2003/33/EC of the European Parliament and of the Council, as well as the prohibitions 
applicable to communications concerning e-cigarettes and refill containers pursuant to 
Directive  2014/40/EU  of  the  European  Parliament  and  of  the  Council,  ensure  that 
consumers are sufficiently protected. The measures set out in this Directive therefore 
complement those set out in Directives 2005/29/EC, 2003/33/EC and 2014/40/EU.  

(28)  An important share of the content stored on video-sharing platforms is not under the 
editorial  responsibility  of  the  video-sharing  platform  provider.  However,  those 
providers typically determine the organisation of the content, namely programmes or 
user-generated videos, including  by automatic means or  algorithms. Therefore, those 
providers  should  be  required  to  take  appropriate  measures  to  protect  minors  from 
content  that  may  impair  their  physical,  mental  or  moral  development  and  protect  all 
citizens from incitement to violence or hatred directed against a group of persons or a 
member of such a group defined by reference to sex, race, colour, religion, descent or 
national or ethnic origin.  

(29) 

(30) 

In light of the nature of the providers' involvement with the  content stored on video-
sharing platforms, those appropriate measures should relate to the organisation of the 
content and not to the content as such. The requirements in this regard as set out in this 
Directive  should  therefore  apply  without  prejudice  to  Article  14  of  Directive 
2000/31/EC of the European  Parliament and  of  the Council34, which provides  for an 
exemption  from  liability  for  illegal  information  stored  by  certain  providers  of 
information  society  services.  When  providing  services  covered  by  Article  14  of 
Directive  2000/31/EC,  those  requirements  should  also  apply  without  prejudice  to 
Article  15  of  that  Directive,  which  precludes  general  obligations  to  monitor  such 
information and to actively seek facts or circumstances indicating illegal activity from 
being imposed on those providers, without however concerning monitoring obligations 
in specific cases and, in particular, without affecting orders by national authorities in 
accordance with national legislation.  

It is appropriate to involve the video-sharing platform providers as much as possible 
when  implementing  the  appropriate  measures  to  be  taken  pursuant  to  this  Directive. 
encouraged. 
Co-regulation 

therefore 

should 

be 

With  a  view  to  ensuring  a  clear  and  consistent  approach  in  this  regard  across  the 
Union,  Member  States  should  not  be  entitled  to  require  video-sharing  platform 
providers  to  take  stricter  measures  to  protect  minors  from  harmful  content  and  all 
citizens  from  content  containing  incitement  to  violence  or  hatred  than  the  ones 
provided for in this Directive. However, it should remain possible for Member States 
to take such stricter measures where that content is illegal, provided that they comply 
with Articles 14 and 15 of Directive 2000/31/EC, and to take measures with respect to 
content on websites containing or disseminating child pornography, as required by and 
allowed under Article 25 of Directive 2011/93/EU of the European Parliament and the 
Council35. It should also remain possible for video-sharing platform providers to take 
stricter measures on a voluntary basis. 

34 

35 

Directive 2000/31/EC of the 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 (OJ L 
178, 17.07.2000, p. 1). 
Directive  2011/93/EU  of  the  European  Parliament  and  of  the  Council  of  13  December  2011  on 
combating  the  sexual  abuse  and  sexual  exploitation  of  children  and  child  pornography,  and  replacing 
Council Framework Decision 2004/68/JHA (OJ L 335, 17.12.2011, p. 1). 

EN 

19 

   EN 

 
                                                 
(31)  When taking the appropriate measures to protect minors from harmful content and to 
protect  all  citizens  from  content  containing  incitement  to  violence  or  hatred  in 
accordance with this Directive, the applicable fundamental rights, as laid down in the 
Charter on Fundamental Rights of the European Union, should be carefully balanced. 
That  concerns  in  particular,  as  the  case  may  be,  the  right  to  respect  for  private  and 
family  life  and  the  protection  of  personal  data,  the  freedom  of  expression  and 
information, the freedom to conduct a business, the prohibition of discrimination and 
the right of the child.  

(32)  The  video-sharing  platform  providers  covered  by  this  Directive  provide  information 
society services within the meaning of point (a) of Article 2 of Directive 2000/31/EC. 
Those providers are consequently subject to the rules on the internal market set out in 
Article 3 of that Directive, if they are established in a Member State. It is appropriate 
to ensure that the same rules apply to video-sharing platform providers which are not 
established  in  a  Member  State  with  a  view  to  safeguarding  the  effectiveness  of  the 
measures to protect minors and citizens set out in this Directive and ensuring a level 
playing field in as much as possible, in as far as those providers have either a parent 
company  or  a  subsidiary  which  is  established  in  a  Member  State  or  where  those 
providers  are  part  of  a  group  and  another  entity  of  that  group  is  established  in  a 
Member  State.  To  that  effect,  arrangements  should  be  made  to  determine  in  which 
Member  State  those  providers  should  be  deemed  to  have  been  established.  The 
Commission  should  be  informed  of  the  providers  under  each  Member  State's 
jurisdiction in application of the rules on establishment set out in this Directive and in 
Directive 2000/31/EC. 

(33)  Regulatory  authorities  of  the  Member  States  can  achieve  the  requisite  degree  of 
structural  independence  only  if  established  as  separate  legal  entities.  Member  States 
should  therefore  guarantee  the  independence  of  the  national  regulatory  authorities 
from both the government, public bodies and the industry with a view to ensuring the 
impartiality  of  their  decisions.  This  requirement  of  independence  should  be  without 
prejudice to the possibility for Member States to establish regulators having oversight 
over different sectors, such as audiovisual and telecom. National regulatory authorities 
should  be  in  possession  of  the  enforcement  powers  and  resources  necessary  for  the 
fulfilment  of  their  tasks,  in  terms  of  staffing,  expertise  and  financial  means.  The 
activities  of  national  regulatory  authorities  established  under  this  Directive  should 
ensure  respect  for  the  objectives  of  media  pluralism,  cultural  diversity,  consumer 
protection, the internal market and the promotion of fair competition.  

(34)  Any party subject of a decision of a national regulatory authority should have the right 
to appeal to a body that is independent from the parties involved. Such body may be a 
court.  The  appeal  procedure  should  be  without  prejudice  to  the  division  of 
competences within national judicial systems.  

(35)  With a view to ensuring the consistent application of the Union audiovisual regulatory 
framework  across  all  Member  States,  the  Commission  established  ERGA  by 
Commission  Decision  of  3  February  201436.  ERGA's  role  is  to  advise  and  assist  the 
Commission  in  its  work  to  ensure  a  consistent  implementation  of  Directive 
2010/13/EU  in  all  Member  States,  and  to  facilitate  cooperation  among  the  national 
regulatory  authorities,  and  between  the  national  regulatory  authorities  and  the 
Commission.  

36 

Commission Decision C(2014) 462 final of 3 February 2014 on establishing the European Regulators 
Group for Audiovisual Media Services. 

EN 

20 

   EN 

                                                 
(36)  ERGA has made a positive contribution towards consistent regulatory practice and has 
provided  high level  advice to the Commission  on implementation matters. This calls 
for  the  formal  recognition  and  reinforcement  of  its  role  in  this  Directive.  The  group 
should therefore be re-established by virtue of this Directive. 

(37)  The  Commission  should  be  free  to  consult  ERGA  on  any  matter  relating  to 
audiovisual  media  services  and  video-sharing  platforms.  ERGA  should  assist  the 
Commission by providing its expertise and advice and by facilitating exchange of best 
practices.  In  particular,  the  Commission  should  consult  ERGA  in  the  application  of 
Directive 2010/13/EU with a view to facilitating its convergent implementation across 
the  Digital  Single  Market.  Upon  the  Commission's  request,  ERGA  should  provide 
opinions,  including  on  jurisdiction  and  Union  codes  of  conduct  in  the  area  of 
protection  of  minors  and  hate  speech  as  well  as  audiovisual  commercial 
communications for foods high in fat, salt/sodium and sugars.  

(38)  This  Directive  is  without  prejudice  to  the  ability  of  Member  States  to  impose 
obligations  to  ensure  discoverability  and  accessibility  of  content  of  general  interest 
under defined general interest objectives such as media pluralism, freedom of speech 
and  cultural  diversity.  Such  obligations  should  only  be  imposed  where  they  are 
necessary  to  meet  general  interest  objectives  clearly  defined  by  Member  States  in 
conformity  with  Union  law.  In  this  respect,  Member  States  should  in  particular 
examine  the  need  for  regulatory  intervention  against  the  results  of  the  outcome  of 
market  forces.  Where  Member  States  decide  to  impose  discoverability  rules,  they 
should  only  impose  proportionate  obligations  on  undertakings,  in  the  interest  of 
legitimate public policy considerations. 

(39)  This Directive respects the fundamental rights and observes the principles recognised 
in  particular  by  the  Charter  of  Fundamental  Rights  of  the  European  Union.  In 
particular,  this  Directive  seeks  to  ensure  full  respect  for  the  right  to  freedom  of 
expression,  the  freedom  to  conduct  a  business,  the  right  to  judicial  review  and  to 
promote  the  application  of  the  rights  of  the  child  enshrined  in  the  Charter  of 
Fundamental Rights of the European Union. 

(40)  The right to access political news programmes is crucial to safeguard the fundamental 
freedom to receive information and to ensure that the interests of viewers in the Union 
are  fully  and  properly  protected.  Given  the  ever  growing  importance  of  audiovisual 
media services for societies and democracy, broadcasts of political news should, to the 
best extent possible, and without prejudice to copyright rules, be made available cross-
border in the EU. 

(41)  This  Directive  does  not  concern  rules of private  international law, in  particular rules 
governing the jurisdiction of the courts and the law applicable to contractual and non-
contractual obligations. 

(42) 

In  accordance  with  the Joint  Political  Declaration  of  28  September  2011  of  Member 
States  and  the  Commission  on  explanatory  documents37,  Member  States  have 
undertaken  to  accompany,  in  justified  cases,  the  notification  of  their  transposition 
measures  by  one  or  more  documents  explaining  the  relationship  between  the 
components  of  a  directive  and  the  corresponding  parts  of  national  transposition 
instruments. With regard to this Directive, the legislator considers the transmission of 
such documents to be justified. 

(43)  Directive 2010/13/EU should therefore be amended accordingly, 

37 

OJ C 369, 17.12.2011, p. 14. 

EN 

21 

   EN 

                                                 
HAVE ADOPTED THIS DIRECTIVE: 

Article 1 

Directive 2010/13/EU is amended as follows: 

(1) 

in Article 1, paragraph 1 is amended as follows: 

(a) in point (a), point (i) is replaced by the following: 

"(i) a service as defined by Articles 56 and 57 of the Treaty on the Functioning of the 
European  Union,  where  the  principal  purpose  of  the  service  or  a  dissociable  section 
thereof  is  devoted  to  providing  programmes,  under  the  editorial  responsibility  of  a 
media service provider, in order to inform, entertain or educate, to the general public 
by electronic communications networks within the meaning of point (a) of Article 2 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;"; 

(b) the following point (aa) is inserted:  

"(aa) 'video-sharing  platform service'  means a service, as  defined by Articles 56 and 
57 of the Treaty on the Functioning of the European Union, which meets the following 
requirements: 

(i)  the  service  consists  of  the  storage  of  a  large  amount  of  programmes  or  user-
generated  videos,  for  which  the  video-sharing  platform  provider  does  not  have 
editorial responsibility;  

(ii) the organisation of the stored content is determined by the provider of the service 
including  by  automatic  means  or  algorithms,  in  particular  by  hosting,  displaying, 
tagging and sequencing;  

(iii) the principal purpose of the service or a dissociable section thereof is devoted to 
providing  programmes  and  user-generated  videos  to  the  general  public,  in  order  to 
inform, entertain or educate; 

(iv)  the  service  is  made  available by electronic communications networks within the 
meaning of point (a) of Article 2 of Directive 2002/21/EC.";  

(c) point (b) is replaced by the following:  

"(b) ‘programme’ means a set of moving images with or without sound constituting an 
individual  item  within  a  schedule  or  a  catalogue  established  by  a  media  service 
provider,  including  feature-length  films,  videos  of  short  duration,  sports  events, 
situation comedies, documentaries, children’s programmes and original drama;";  

(d) the following point (ba) is inserted: 

"(ba)  'user-generated  video'  means  a  set  of  moving  images  with  or  without  sound 
constituting  an  individual  item  that  is  created  and/or  uploaded  to  a  video-sharing 
platform  by one or more users;"  

(e) the following point (da) is inserted: 

"(da) 'video-sharing platform provider' means the natural or legal person who provides 
a video-sharing platform service;";  

(2) 

the title of Chapter II is replaced by the following: 

EN 

22 

   EN 

"GENERAL PROVISIONS FOR AUDIOVISUAL MEDIA SERVICES"; 

(3) 

Article 2 is amended as follows: 

(a) in paragraph 3, point (b) is replaced by the following:  

"(b) if a media service provider has its head office in one Member State but editorial 
decisions on the audiovisual media service are taken in another Member State, it shall 
be deemed to be established in the Member State where the majority of the workforce 
involved in the pursuit of the audiovisual media service activity operates;"; 

(b) the following paragraphs 5a and 5b are inserted: 

"5a.  Member  States  shall  communicate  to  the  Commission  a  list  of  the  audiovisual 
media service providers under their jurisdiction and the criteria set out in paragraphs 2 
to  5  on  which  their  jurisdiction  is  based.  They  shall  subsequently  inform  the 
Commission  without  undue  delay  of  any  changes  to  that  list.  The  Commission  shall 
ensure  that  the  competent  independent  regulatory  authorities  have  access  to  this 
information. 

5b.  Where,  in  applying  Articles  3  and  4  of  this  Directive,  the  Member  States 
concerned do not agree on which Member State has jurisdiction, they shall bring the 
matter  to  the  Commission's  attention  without  undue  delay.  The  Commission  may 
request  the  European  Regulators  Group  for  Audiovisual  Media  Services  (ERGA)  to 
provide  an  opinion  on  the  matter  within  15  working  days  from  submission  of  the 
Commission's request. If the Commission requests an opinion from ERGA, the time-
limits set out in Articles 3(5) and 4(5) shall be suspended until ERGA has adopted an 
opinion."; 

(4) 

Article 3 is replaced by the following: 

"Article 3 

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. 

2.  Member  States  may  provisionally  derogate  from  paragraph  1  if  an  audiovisual 
media service provided by a media service provider under the jurisdiction of another 
Member State: 

(a) manifestly, seriously and gravely infringes Articles 6 or 12, or both;  

(b)  prejudices  or  presents  a  serious  and  grave  risk  of  prejudice  to  public  security, 
including the safeguarding of national security and defence; or 

(c) prejudices or presents a serious and grave risk of prejudice to public health. 

3. Member States may only apply paragraph 2 where the following conditions are met: 

(a)  during  the  12  months  preceding  the  notification  referred  to  in  point  (b)  of  this 
paragraph,  the  media  service  provider  has,  in  the  opinion  of  the  Member  State 
concerned, contravened point (a), (b) or (c) of paragraph 2 on at least two occasions; 

(b) the Member State concerned has notified the media service provider , the Member 
State which has jurisdiction over the provider  and the Commission in writing of the 
alleged contraventions and of the measures it intends to take should any such alleged 
contraventions occur again; 

EN 

23 

   EN 

  
 
(c) consultations with the Member State which has jurisdiction over the provider  and 
the  Commission  have  not  produced  an  amicable  settlement  within  one  month  of  the 
notification provided for in point (b);  

(d) the media services provider has contravened point (a), (b) or (c) of paragraph 2 at 
least once after the notification provided for in point (b) of this paragraph; 

(e)  the  notifying  Member  State  has  respected  the  rights  of  defence  of  the  media 
services provider concerned and, in particular, has given the media services provider 
the  opportunity  to  express  its  views  on  the  alleged  contraventions  and  the  measures 
that that Member State intends to take. It shall duly take into account those views as 
well as the views of the Member State of jurisdiction. 

Points (a) and (d) of paragraph 3 shall apply only in respect of linear services.  

4.  The  Commission  shall,  within  three  months  following  the  notification  of  the 
measures  taken  by  the  Member  State  in  application  of  paragraphs  2  and  3  and  after 
having  consulted  ERGA,  take  a  decision  on  whether  those  measures  are  compatible 
with Union law. That period shall begin on the day following the receipt of a complete 
notification. The notification shall be considered as complete if, within three months 
from  its  receipt,  or  from  the  receipt  of  any  additional  information  requested,  the 
Commission does not request any further information.  

Where  the  Commission  considers  the  notification  as  incomplete,  it  shall  request  all 
necessary additional information. The Commission shall inform the Member State of 
the receipt of the response to that request.  

Where the Member State concerned does not provide the information requested within 
the period fixed by the Commission or where it provides incomplete information, the 
Commission  shall  take  a  decision  that  the  measures  taken  by  the  Member  State  in 
accordance  with  paragraph  2  are  incompatible  with  Union  law.  If  the  Commission 
decides  that  the  measures  are  incompatible  with  Union  law,  the  Member  State  shall 
put an end to the measures in question as a matter of urgency.  

5. Paragraphs 3 and 4 shall be without prejudice to the application of any procedure, 
remedy or sanction to the contraventions in question in the Member State which has 
jurisdiction over the media service provider concerned.  

6.  Member  States  may,  in  urgent  cases,  derogate  from  the  conditions  laid  down  in 
points (b) and (c) of paragraph 3. Where this is the case, the measures shall be notified 
in  the  shortest  possible  time  to  the  Commission  and  to  the Member  State  which  has 
jurisdiction  over  the  media  service  provider,  setting  out  the  reasons  for  which  the 
Member  State  considers  that  there  is  such  urgency  that  derogating  from  those 
conditions is necessary. 

7.  Without  prejudice  to  the  Member  State’s  possibility  of  proceeding  with  the 
measures referred to in paragraph 6, the Commission shall examine the compatibility 
of the notified measures with Union law in the shortest possible time. Where it comes 
to the conclusion that the measures are incompatible with Union law, the Commission 
shall  require  the  Member  State  concerned  to  refrain  from  taking  any  intended 
measures or urgently to put an end to those measures. 

8. Member States and the Commission shall regularly exchange experiences and best 
practices regarding the procedure set out in paragraphs 2 to 7 in the framework of the 
contact committee established pursuant to Article 29 and ERGA."; 

(5) 

Article 4 is amended as follows: 

EN 

24 

   EN 

(a) paragraph 1 is replaced by the following: 

"1.  Member  States  shall  remain  free  to  require  media  service  providers  under  their 
jurisdiction to comply with more detailed or stricter rules with regard to Articles 5, 6, 
6a,  9,  10,  11,  12,  13,  16,  17,  19  to  26,  30  and  30a,  provided  that  such  rules  are  in 
compliance with Union law."; 

(b) in paragraph 3, the following second subparagraph is inserted after point (b) of the 
first subparagraph:  

"  The  Member  State  which  took  steps  in  accordance  with  points  (a)  and  (b)  of 
paragraph  2  should  substantiate  the  grounds  on  which  it  bases  its  assessment  of  the 
alleged circumvention."; 

(c) paragraphs 4 and 5 are replaced by the following: 

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

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

(b)  it  has  respected  the  rights  of  defence  of  the  broadcaster  concerned  and,  in 
particular, has given the broadcaster the opportunity to express its views on the alleged 
circumvention and the measures the notifying Member States intends to take;  

(c) the Commission has decided, after having consulted ERGA, that the measures are 
compatible with Union law, in particular that assessments made by the Member State 
taking those measures under paragraphs 2 and 3 are correctly founded. 

5. The Commission shall decide within 3 months following the notification provided 
for in point (a) of paragraph 4. That period shall begin on the day following the receipt 
of a complete notification. The notification shall be considered as complete if, within 3 
months from its  receipt,  or  from the receipt of any additional  information  requested, 
the Commission does not request any further information.  

Where  the  Commission  considers  the  notification  as  incomplete,  it  shall  request  all 
necessary additional information. The Commission shall inform the Member State of 
the receipt of the response to that request.  

Where the Member State concerned does not provide the information requested within 
the  period  fixed  by  the  Commission  or  provides  incomplete  information,  the 
Commission  shall  take  a  decision  that  the  measures  taken  by  the  Member  State  in 
accordance  with  paragraph  3  are  incompatible  with  Union  law.  If  the  Commission 
decides  that  the  measures  are  incompatible  with  Union  law,  the  Member  State  in 
question shall refrain from taking the intended measures."; 

(d) paragraph 7 is replaced by the following: 

"7. Member States shall encourage co-regulation and self-regulation through codes of 
conduct  adopted  at  national  level  in  the  fields  coordinated  by  this  Directive  to  the 
extent  permitted  by  their  legal  systems.  Those  codes  shall  be  such  that  they  are 
broadly accepted by the main stakeholders in the Member States concerned. The codes 
of conduct shall clearly and unambiguously set out their objectives. They shall provide 
for regular, transparent and independent monitoring and evaluation of the achievement 
of  the  objectives  aimed  at.  They  shall  provide  for  effective  enforcement,  including 
when appropriate effective and proportionate sanctions. 

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Draft  Union  codes  of  conduct  referred  to  in  Articles  6a  (3),  9(2)  and  9(4)  and 
amendments  or  extensions  to  existing  Union  codes  of  conduct  shall  be  submitted  to 
the Commission by the signatories of these codes.  

The  Commission  may  ask  ERGA  to  give  an  opinion  on  the  drafts,  amendments  or 
extensions of those codes. The Commission may publish those codes as appropriate."; 

(6) 

Title of Chapter III is replaced by the following:  

"PROVISIONS APPLICABLE TO AUDIOVISUAL MEDIA SERVICES"; 

(7) 

in Article 5, point (d) is replaced by the following:  

"(d)  the  Member  State  having  jurisdiction  over  the  media  service  providers  and  the 
competent regulatory authorities or supervisory bodies."; 

(8) 

Article 6 is replaced by the following: 

"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  violence  or  hatred  directed  against  a  group  of  persons  or  a  member  of 
such  a  group  defined  by  reference  to  sex,  racial  or  ethnic  origin,  religion  or  belief, 
disability, age or sexual orientation."; 

(9) 

the following Article 6a is inserted: 

"Article 6a 

1.  Member  States  shall  ensure  that  audiovisual  media  service  providers  provide 
sufficient information to viewers about content which may impair the physical, mental 
or moral development of minors. For this purpose, Member States may use a system 
of descriptors indicating the nature of the content of an audiovisual media service.  

2.  For  the  implementation  of  this  Article,  Member  States  shall  encourage  co-
regulation.  

3. The Commission and ERGA shall encourage media service providers to exchange 
best  practices  on  co-regulatory  systems  across  the  Union.  Where  appropriate,  the 
Commission shall facilitate the development of Union codes of conduct."; 

 (10)  Article 7 is deleted; 

(11)   Article 9 is amended as follows: 

(a) paragraph 2 is replaced by the following: 

"2. Member States and the Commission shall encourage the development of self- and 
co-regulatory  codes  of  conduct  regarding  inappropriate  audiovisual  commercial 
communications,  accompanying  or  included  in  programmes  with  a  significant 
children’s audience, of foods and beverages containing nutrients and substances with a 
nutritional  or  physiological  effect,  excessive  intakes  of  which  in  the  overall  diet  are 
not recommended, in particular fat, trans-fatty acids, salt or sodium and sugars.  

Those  codes  should  be  used  to  effectively  reduce  the  exposure  of  minors  to 
audiovisual commercial communications of foods and beverages that are high in salt, 
sugars or fat or that otherwise do not fit national or international nutritional guidelines. 
Those codes should provide that the audiovisual commercial communications are not 
to  emphasise  the  positive  quality  of  the  nutritional  aspects  of  such  foods  and 
beverages.  

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The  Commission  and  ERGA  shall  encourage  the  exchange  of  best  practices  on  self- 
and co-regulatory systems across the Union. Where appropriate, the Commission shall 
facilitate the development of Union codes of conduct."; 

(b) the following paragraphs 3 and 4 are inserted: 

"3. Member States and the Commission shall encourage the development of self- and 
co-regulatory  codes  of  conduct  regarding  inappropriate  audiovisual  commercial 
communications  for  alcoholic  beverages.  Those  codes  should  be  used  to  effectively 
limit the exposure of minors to audiovisual commercial communications for alcoholic 
beverages.  

4. The Commission and ERGA shall encourage the exchange of best practices on self- 
and  co-regulatory  systems  across 
the 
Commission shall facilitate the development of Union codes of conduct."; 

the  Union.  If  considered  appropriate, 

(12)  

in Article 10, point (b) is replaced by the following: 

"(b) they shall not directly encourage the purchase or rental of goods or services;"; 

 (13)  Article 11 is replaced by the following: 

"Article 11 

1. Paragraphs 2, 3 and 4 shall apply only to programmes produced after 19 December 
2009. 

2. Product placement shall be admissible in all audiovisual media services, except in 
news  and  current  affairs  programmes,  consumer  affairs  programmes,  religious 
programmes and programmes with a significant children's audience. 

3. Programmes that contain product placement shall meet the following requirements: 

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

(b) they shall not directly encourage the purchase or rental of goods or services; 

(c)  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  (c)  provided  that  the  programme  concerned  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: 

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

(b) specific medicinal products or medical treatments available only on prescription in 
the Member State under whose jurisdiction the media service provider falls."; 

(14)   Article 12 is replaced by the following and moved to Chapter III: 

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"Article 12 

Member States shall take appropriate measures to ensure that programmes provided by 
audiovisual  media  service  providers  under  their  jurisdiction,  which  may  impair  the 
physical,  mental  or  moral  development  of  minors  are  only  made  available  in  such  a 
way as to ensure that minors will not normally hear or see them. Such measures may 
include  selecting  the  time  of  the  broadcast,  age  verification  tools  or  other  technical 
measures. They shall be proportionate to the potential harm of the programme. 

The  most  harmful  content,  such  as  gratuitous  violence  and  pornography,  shall  be 
subject to the strictest measures, such as encryption and effective parental controls."; 

 (15)  Article 13 is replaced by the following: 

"Article 13 

1. Member States shall ensure that providers of on-demand audiovisual media services 
under  their  jurisdiction  secure  at  least  a  20%  share  of  European  works  in  their 
catalogue and ensure prominence of these works.  

2.  Member  States  may  require  providers  of  on-demand  audiovisual  media  services 
under their jurisdiction to contribute financially to the production of European works, 
including via direct investment in content and contributions to national funds. Member 
States  may  require  providers  of  on-demand  audiovisual  media  services,  targeting 
audiences  in  their  territories,  but  established  in  other  Member  States  to  make  such 
financial contributions. In this case, the financial contribution shall be based only on 
the  revenues  earned  in  the  targeted  Member  States.  If  the  Member  State  where  the 
provider is established imposes a financial contribution, it shall take into account any 
financial contributions imposed by targeted Member States. Any financial contribution 
shall comply with Union law, in particular with State aid rules.  

3. Member States shall report to the Commission by [date – no later than three years 
after adoption] at the latest and every two years thereafter on the implementation of 
paragraphs 1 and 2. 

4. The Commission shall, on the basis of the information provided by Member States 
and of an independent study, report to the European Parliament and to the Council on 
the  application  of  paragraphs  1  and  2,  taking  into  account  the  market  and 
technological developments and the objective of cultural diversity. 

5.  Member  States  shall  waive  the  requirements  laid  down  in  paragraphs  1  and  2  for 
providers  with  a  low  turnover  or  low  audience  or  if  they  are  small  and  micro 
enterprises.  Member  States  may  also  waive  such  requirements  in  cases  where  they 
would  be  impracticable  or  unjustified  by  reason  of  the  nature  or  theme  of  the  on-
demand audiovisual media services."; 

(16) 

In Article 20, paragraph 2, the first sentence is replaced by the following:  

"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 
20 minutes."; 

(17)  Article 23 is replaced by the following: 

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"Article 23 

1.  The  daily  proportion of  television  advertising  spots and  teleshopping  spots  within 
the period between 7:00 and 23:00 shall not exceed 20 %. 

2. Paragraph 1 shall not apply to: 

(a)  announcements  made  by the broadcaster in connection with  its own programmes 
and  ancillary  products  directly  derived  from  those  programmes  or  with  programmes 
from other entities belonging to the same media group;  

(b) sponsorship announcements; 

(c) product placements."; 

(18)  Chapter VIII is deleted; 

(19)  

the following Chapter IXa is inserted: 

PROVISION APPLICABLE TO VIDEO-SHARING PLATFORM SERVICES 

"CHAPTER IXa 

Article 28a 

1.  Without  prejudice  to  Articles  14  and  15  of  Directive  2000/31/EC,  Member  States 
shall ensure that video-sharing platform providers take appropriate measures to: 

(a)  protect  minors  from  content  which  may  impair  their  physical,  mental  or  moral 
development;  

(b)  protect  all  citizens  from  content  containing  incitement  to  violence  or  hatred 
directed against a group of persons or a member of such a group defined by reference 
to sex, race, colour, religion, descent or national or ethnic origin. 

2.  What  constitutes  an  appropriate  measure  for  the  purposes  of  paragraph  1  shall  be 
determined in light of the nature of the content in question, the harm it may cause, the 
characteristics  of  the  category  of  persons  to  be  protected  as  well  as  the  rights  and 
legitimate  interests  at  stake,  including  those  of  the  video-sharing  platform  providers 
and the users having created and/or uploaded the content as well as the public interest.  

Those measures shall consist of, as appropriate:  

(a)  defining  and  applying  in  the  terms  and  conditions  of  the  video-sharing  platform 
providers the concepts of incitement to violence or hatred as referred to in point (b) of 
paragraph  1  and  of  content  which  may  impair  the  physical,  mental  or  moral 
development of minors, in accordance with Articles 6 and 12 respectively;  

(b)  establishing  and  operating  mechanisms  for  users  of  video-sharing  platforms  to 
report or flag to the video-sharing platform provider concerned the content referred to 
in paragraph 1 stored on its platform; 

(c)  establishing  and  operating  age  verification  systems  for  users  of  video-sharing 
platforms  with  respect  to  content  which  may  impair  the  physical,  mental  or  moral 
development of minors;  

(d)  establishing  and  operating  systems  allowing  users  of  video-sharing  platforms  to 
rate the content referred to in paragraph 1;  

(e)  providing  for  parental  control  systems  with  respect  to  content  which  may  impair 
the physical, mental or moral development of minors;  

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(f)  establishing  and  operating  systems  through  which  providers  of  video-sharing 
platforms explain to users of video-sharing platforms what effect has been given to the 
reporting and flagging referred to in point (b).  

3. For the purposes of the implementation of the measures referred to in paragraphs 1 
and 2, Member States shall encourage co-regulation as provided for in Article 4(7). 

4.  Member  States  shall  establish 
the 
appropriateness  of  the  measures  referred  to  in  paragraphs  2  and  3  taken  by  video-
sharing  platform  providers.  Member  States  shall  entrust  this  task  to  the  authorities 
designated in accordance with Article 30.  

the  necessary  mechanisms 

to  assess 

5. Member States shall not impose on video-sharing platform providers measures that 
are stricter than the measures referred to in paragraph 1 and 2. Member States shall not 
be  precluded  from  imposing  stricter  measures  with  respect  to  illegal  content.  When 
adopting such measures, they shall respect the conditions set by applicable Union law, 
such as, where appropriate, those set in Articles 14 and 15 of Directive 2000/31/EC or 
Article 25 of Directive 2011/93/EU. 

6. Member States shall ensure that complaint and redress mechanisms are available for 
the settlement of disputes between users and video-sharing platform providers relating 
to the application of the appropriate measures referred to in paragraphs 1 and 2. 

7.  The  Commission  and  ERGA  shall  encourage  video-sharing  platform  providers  to 
exchange  best  practices  on  co-regulatory  systems  across  the  Union.  Where 
appropriate,  the  Commission  shall  facilitate  the  development  of  Union  codes  of 
conduct. 

8.  Video-sharing  platform  providers  or,  where  applicable, 
the  organisations 
representing  those  providers  in  this  respect  shall  submit  to  the  Commission  draft 
Union  codes  of  conduct  and  amendments  to  existing  Union  codes  of  conduct.  The 
Commission  may  request  ERGA  to  give  an  opinion  on  the  drafts,  amendments  or 
extensions of those codes of conduct. The Commission may give appropriate publicity 
to those codes of conduct. 

Article 28b 

1.  Member  States  shall  ensure  that  video-sharing  platform  providers  which  are  not 
established on their territory, but which have either a parent company or a subsidiary 
that is established on their territory or which are part of a group and another entity of 
that  group  is  established  on  their  territory,  are  deemed  to  have  been  established  on 
their territory for the purposes of Article 3(1) of Directive 2000/31/EEC.  

For  the  purposes  of  applying  the  first  subparagraph,  where  the  parent  company,  the 
subsidiary  or  the  other  entity  of  the  group  are  each  established  in  different  Member 
States,  the  provider  shall  be  deemed  to  have  been  established  in  the  Member  State 
where its parent company is established or, in the absence of such an establishment in 
a  Member  State,  where  its  subsidiary  is  established  or,  in  the  absence  of  such  an 
establishment in a Member State, where the other entity of the group is established.  

For  the  purposes  of  applying  the  second  subparagraph,  where  there  are  several 
subsidiaries each of which are established in different Member States, or where there 
are  several  other  entities  of  the  group  each  of  which  are  established  in  different 
Member States, the Member States concerned shall ensure that the provider designates 
in which of these Member States it shall be deemed to have been established.  

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2.  Member  States  shall  communicate  to  the  Commission  a  list  of  the  video-sharing 
platform providers established on their territory and the criteria, set out in Article 3(1) 
of Directive 2000/31/EC and in paragraph 1, on which their jurisdiction is based. They 
shall  update  the  list  regularly.  The  Commission  shall  ensure  that  the  competent 
independent regulatory authorities have access to this information."; 

(20)  

title of Chapter XI is replaced by the following: 

"REGULATORY AUTHORITIES OF THE MEMBER STATES"; 

(21)  Article 30 is replaced by the following: 

"Article 30 

1.  Each  Member  State  shall  designate  one  or  more  independent  national  regulatory 
authorities. Member States shall ensure that they are legally distinct and functionally 
independent of any other public or private body. This shall be without prejudice to  the 
possibility  for  Member  States  to  set  up  regulators  having  oversight  over  different 
sectors. 

2.  Member  States  shall  ensure  that  national  regulatory  authorities  exercise  their 
powers  impartially  and  transparently  and  in  accordance  with  the  objectives  of  this 
Directive,  in  particular  media  pluralism,  cultural  diversity,  consumer  protection, 
internal market and the promotion of fair competition.  

National regulatory authorities shall not seek or take instructions from any other body 
in  relation  to  the  exercise  of  the  tasks  assigned  to  them  under  national  law 
implementing  Union  law.  This  shall  not  prevent  supervision  in  accordance  with 
national constitutional law. 

3. The competences and powers of the independent regulatory authorities, as well as 
the ways of making them accountable shall be clearly defined in law.  

4.  Member  States  shall  ensure  that  national  regulatory  authorities  have  adequate 
enforcement powers to carry out their functions effectively. 

5. The Head of a national regulatory authority or the members of the collegiate body 
fulfilling that function within a national regulatory authority, may be dismissed only if 
they no longer fulfil the conditions required for the performance of their duties which 
are laid down in advance in national law. A dismissal decision shall be made public 
and a statement of reasons shall be made available. 

6.  Member  States  shall  ensure  that  independent  national  regulatory  authorities  have 
separate annual budgets. The budgets shall be made public. Member States shall also 
ensure  that  national  regulatory  authorities  have  adequate  financial  and  human 
resources  to  enable  them  to  carry  out  the  task  assigned  to  them  and  to  actively 
participate in and contribute to ERGA. 

7. Member States shall ensure that effective mechanisms exist at national level under 
which any user or media services provider or video-sharing platform provider who is 
affected by a decision of a national regulatory authority has the right of appeal against 
the  decision  to  an  appeal  body.  The  appeal  body  shall  be  independent  of  the  parties 
involved in the appeal.  

That  appeal  body,  which  should  be  a  court,  shall  have  the  appropriate  expertise  to 
enable  it  to  carry  out  its  functions  effectively.  Member  States  shall  ensure  that  the 

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merits  of  the  case  are  duly  taken  into  account  and  that  there  is  an  effective  appeal 
mechanism. 

Pending  the  outcome  of  the  appeal,  the  decision  of  the  national  regulatory  authority 
shall stand, unless interim measures are granted in accordance with national law."; 

(22) the following Article 30a is inserted: 

"Article 30a 

1. The European Regulators Group for Audiovisual Media Services (ERGA) is hereby 
established.   

2.  It  shall  be  composed  of  national  independent  regulatory  authorities  in  the  field  of 
audiovisual media  services.  They  shall  be represented  by the  heads  or by  nominated 
high  level  representatives  of  the  national  regulatory  authority  with  primary 
responsibility for overseeing audiovisual media services, or in cases where there is no 
national  regulatory  authority,  by  other  representatives  as  chosen  through  their 
procedures. A Commission representative shall participate in the group meetings. 

3. ERGA's shall have the following tasks: 

(a)  to  advise  and  assist  the  Commission  in  its  work  to  ensure  a  consistent 
implementation  in  all  Member  States  of  the  regulatory  framework  for  audiovisual 
media services; 

(b) to advise and assist the Commission as to any matter related to audiovisual media 
services  within  the  Commission's  competence.  If  justified  in  order  to  advise  the 
Commission on certain issues, the group may consult market participants, consumers 
and end-users in order to collect the necessary information; 

(c) to provide for an exchange of experience and good practice as to the application of 
the regulatory framework for audiovisual media services; 

(d)  to  cooperate  and  provide  its  members  with  the  information  necessary  for  the 
application of this Directive, in particular as regards Articles 3 and 4 thereof; 

(e)  to  give opinions,  when  requested  by the  Commission,  on  the  issues  envisaged  in 
Articles  2(5b),  6a(3),  9(2),  9(4)  and  on  any  matter  relating  to  audiovisual  media 
services, in particular on the protection of minors and incitement to hatred."; 

4. The Commission shall be empowered to adopt, by means of an implementing act, 
the rules of procedure for ERGA.";   

  (23)  Article 33 is replaced by the following: 

"Article 33 

The Commission shall monitor Member States' application of the Directive, including 
its application of co-regulation and self-regulation through codes adopted at national 
level. 

By [date – no later than four years after adoption] at the latest, 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. 

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By [date - no later than 10 years after adoption] at the latest, the Commission shall 
submit  to  the  European  Parliament  and  the  Council  an  ex  post  evaluation, 
accompanied  where  appropriate  by  proposals  for  its  review,  in  order  to  measure  the 
impact of the Directive and its added value." 

Article 2 

1. 

Member  States  shall  bring  into  force  the  laws,  regulations  and  administrative 
provisions  necessary to  comply  with  this  Directive  by  [date  – no later  than  1 year 
after  entry  into  force]  at  the  latest.  They  shall  forthwith  communicate  to  the 
Commission the text of those provisions. 

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

2. 

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

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

Article 3 

This Directive is addressed to the Member States. 

Done at Brussels, 

Article 4 

For the European Parliament 
The President 

For the Council 
The President 

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