COMMISSION STAFF WORKING DOCUMENT EXECUTIVE SUMMARY OF THE IMPACT ASSESSMENT Accompanying the document 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  SWD(2016) 169 final   COMMISSION STAFF WORKING DOCUMENT  EXECUTIVE SUMMARY OF THE IMPACT ASSESSMENT  Accompanying the document 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  {COM(2016) 287 final} {SWD(2016) 168 final}  
 
 
What is the problem and why is it a problem? 
The Impact Assessment has been carried out in parallel to the AVMSD ex post evaluation under the 
Regulatory Fitness and Performance Programme (REFIT).  

A. Need for action 

The overall conclusion is that the AVMSD objectives are still relevant.  

The REFIT evaluation has identified three main sets of problems: 

- 

Insufficient protection of minors and consumers when consuming videos on video-sharing 
platforms.  

-  Lack of a level playing field between traditional broadcasting and on-demand services, and 
internal market weaknesses stemming from the fact that some of the AVMSD rules are not 
sufficiently precise.   

-  Rules on commercial communications no longer fit for purpose 

The  REFIT  evaluation  concluded  also  that  there  is  scope  for  simplification,  specifically  of  the 
procedures that support the application of the COO and of some commercial communications rules. 

What should be achieved? 
The general objectives are to: 

1.  Enhance consumer and minors protection  
2.  Ensure a level playing field, preserve the integrity of the internal market and enhance 

legal certainty 

3.  Simplify the legislative framework 

What is the added value of action at the EU level? 
The  AVMSD  is  the  regulatory  framework  underpinning  the  European  audiovisual  single  market. 
The development of on demand services and video-sharing platforms as well as the corresponding 
changing  viewing  patterns  and  associated  risks  is  a  phenomenon,  which  affect  all  the  Member 
States.  

The  upcoming  revision  of  the  AVMSD  is  deemed  to  comply  with  both  subsidiarity  and 
proportionality  by  preserving  the  harmonization  approach  and  cooperation  mechanisms  allowing 
Member States to take national specificities into account.  

B. Solutions 
What are the various options to achieve the objectives? Is there a preferred option or not? If 
not why? 
The  options  are  grouped  according  to  the  specific  problem  they  intend  to  address  primarily.  For 
each section, the preferred option is highlighted. 

1.  Options  addressing  the  problem  of  insufficient  minors  and  consumers  protection  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.  

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

weaknesses 
a) Promotion of European works 

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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 the jurisdiction rules and the 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. 

3.  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. 

What are the different stakeholders? Who support which option? 
The  stakeholders  most  affected  by  any  potential  changes  in  the  AVMSD  are:  national  regulators, 
public TV broadcasters, commercial TV broadcasters, on-demand services  (Catch-up TV service, 
video on-demand services, news/portals), video-sharing platforms (currently outside of the scope of 
the  AVMSD),  self-regulatory  organisations,  consumers 
including  minors,  advertisers  and 
advertising agencies (especially in relation to commercial communications) and independent content 
producers and distributors (especially in relation to the promotion of European works). 
The main elements that have been observed overall, across stakeholders' categories when it comes 
to policy options for the future: 

-  Convergence of views across stakeholders regarding the need for possible changes of the rules 
on  the  scope  of  application  of  the  Directive,  although  there  is  no  common  pattern  or  clarity 
amongst  stakeholders  as  regards  the  way  forward,  as  well  as  on  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;  major  events  for 
society, short news reports and right of reply. 

-  No  clear  consensus  among  stakeholders  on  commercial  communications,  protection  of  minors 

and promotion of European works. 

C. Impacts of the preferred option 

What are the benefits of the preferred option (if any, otherwise of main ones)?  
The preferred option is the combination of the highlighted options in section B. The main benefits 
are: 
-  Enhancing protection of minors including by setting out an obligation of protection from content 

harmful to minors and hate speech in video-sharing platforms. 

-  Securing  a  contribution  of  media  services  to  cultural  diversity  adapted  to  different  business 

models. 

-  Tackling  the  deficit  of  fair  treatment  between  TV  broadcasting  and  on-demand  services 
including  in  the  fields  of  protection  of  minors,  promotion  of  European works  and  commercial 
communications. 

-  Preserving some flexibility in the way Member States will implement the AVMSD and allowing 

for subsidiarity considerations and national specificities. 

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Improving the implementation of the Directive. 

- 
What are the costs of the preferred option (if any, otherwise of main ones)? 
The  main  costs  of  the  preferred  option  would  be  borne  by  on-demand  services  and  video-sharing 
platforms.  They  would  mainly  relate  to  the  implementation  of  the  provisions  intended  to  enhance 
consumer protection. However, these costs would be mitigated by the fact that some Member States 
have  already  put  in  place  stricter  rules  and  that  large  video-sharing  platforms,  pursuant  to  their 
corporate policies, have already voluntarily taken steps to protect consumers. 
Will there be significant impacts on national budgets and administration? 
The main impacts on national budgets and administration would derive from the implementation of 
co-regulation for the protection of minors on video-sharing platforms and from the introduction of 
legal requirement of independence of national regulatory authorities and a minimum set of features 
that  regulators  need  to  meet.  In  the  latter  case,  the  impacts  will  depend  on  the  existing  level  of 
compliance of national regulatory authorities with the set of features. 
Will there be other significant impacts? 
No 
Proportionality? 
The minimum harmonization feature of the Directive will ensure the proportionality of EU action. 

D. Follow up 

When will the policy be reviewed? 
Continuous monitoring will be ensured through a reporting from Member States to the Commission 
and  from  the  Commission  to  the  European  Parliament,  the  Council  and  the  Economic  and  Social 
Committee. 

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