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31. 8. 87 Official Journal of the European Communities No C 232/29

Opinion of the Economic and Social Committee on the proposal for a Council Directive on the
coordination of certain provisions laid down by law, regulation or administrative action in Member

States concerning the pursuit of broadcasting activities (*)

(87/C 232/16)

On 28 May 1986 the Council decided to consult the Economic and Social Committee, under Article
198 of the Treaty establishing the European Economic Community, on the abovementioned
proposal.

The Sub-Committee on Broadcasting, which was responsible for preparing the Committee's work on
the subject, adopted its Opinion on 6 May 1987. The rapporteur was Mr Ramaekers and the
co-rapporteur was Mr Broicher.

At its 247th plenary session (meeting of 1 July 1987) the Economic and Social Committee adopted the
following opinion by 102 votes to five, with 26 abstentions:

The Committee appreciates the speed with which the
Commission has proposed a set of provisions designed to
implement the common broadcasting market advocated in its
own-initiative opinion on the 'Green Paper on the
establishment of the common market for broadcasting,
especially by satellite and cable ( [2] ).

Action is all the more urgently required in view of the fact
that on 9 and 10 December 1986 the Council of Europe
decided in Vienna to draw up a Broadcasting Convention to
which the Community must contribute through a
harmonized approach on the part of its twelve Member
States.

The Committee would point to the reservations expressed in
its own-initiative opinion as to the economic, social and
cultural aspects, which cannot be disregarded if the basic
functions of broadcasting are to be preserved. These are:

— information,

— education,

— entertainment,

— culture.

The Committee stresses the need to encourage the promotion
of European television programmes by a Community
Directive, while maintaining the cultural identity and the
national structure of the media.

Indeed, it feels that European cultural diversity with its
manifold characteristics is part of Europe's rich heritage. In
the worldwide development of audiovisual media Europe has
an exceptional variety of programmes to offer, thanks to its
cultural diversity.

It also wishes to stress that the co-existence of broadcasting
stations of differing status — e.g. public and private — can
ensure a measure of cultural pluralism and thus help to

(») OJ No C 179, 17. 7. 1986, p. 4.
( [2] ) OJNoC303,25. 11. 1985.

safeguard the principles of freedom of expression, freedom of
opinion and pluralism, which are essential to the exercise of
democracy and to economic and social development.

Therefore, the legislative and administrative measures to be
taken in the broadcasting field must be geared to this aim and
avoid any arrangements which might tend to create a
dominant opinion-forming power.

While taking account of the fact that public and commercial
broadcasters differ in their aims, structures and methods of
finance, the Committee thinks that commercial broadcasting
stations should also respect certain minimum requirements
designed to meet the cultural needs of the peoples of the
Community.

However, the Committee would have preferred the proposal
to be confined to regulating certain fundamental aspects in a
flexible way, without going into too much detail (excessive
detail makes the present text in parts confused, inconsistent
and impossible to apply).

The Committee is able to approve the Commission's
endeavour to establish a common market in radio and

television broadcasting through harmonization.

As regards the approach adopted, the Committee has doubts
— also on important points — about whether the conditions
laid down for the liberalization of the sector offer sufficient

guarantees of achieving the objectives.

1. General comments

1.1. The Committee notes that the Commission has taken

account of a number of points made in its own-initiative
opinion on the Green Paper.

In particular this is true to some extent of the desirability of
approximating, by Community Directive, national laws

No C 232/30 Official Journal of the European Communities 31. 8. 87

relevant to the European production of programmes,
advertising, protection of young people, and copyright.

In its specific comments, the Committee will examine these
provisions on harmonization in detail.

1.2. The main aim of the proposal for a Directive, namely
the achievement of free circulation of broadcast

programmes, has important implications for the cultural
level of programmes, the Community structure of the media
and the position of workers in that sector — implications
which are important to all social and economic groups.

1.3. Thus, even if one takes account of the wide context
of the economic challenges facing the Community in the
production of television programmes, in the film industry,
and in the telecommunications sector, it is necessary to
promote the cultural quality of programmes.

1.4. The Committee has had occasion in a number of

opinions to give its views on the future of the European
audio-visual sector and define the framework of Community
action.

It took the line that the Community should not intervene
directly in the national media structures ( [x] ), and stressed the
cultural importance of audio-visual productions; it also came
out in favour of the proposal for a Council Regulation on a
system of Community support for non-documentary cinema
and television co-productions ( [2] ).

The Committee, anxious that the technical quality of
broadcasts should improve, has also encouraged the
adoption of common technical specifications to make
possible the establishment of a vast European broadcasting
market ( [3] ).

It has taken note of the 'action programme for the European
audiovisual media products industry'.

1.5. In the year before European Cinema and Television
Year (1988) ( [4] ), the Committee though aware of the limits of
the Commission's scope for action under the Treaty, invites
the Commission to consider the possibility of reinforcing
European cultural identities, particularly in the field of
broadcasting.

(') CES 776/85, mentioned above.
( [2] ) OJNoC303, 25. 11. 1985.
( [3] ) Cf ESC opinion of 23 April 1986, OJ No C 119, 28. 7. 1986 on
the proposal for a Council Directive on the adoption of common
technical specifications of the MAC/packet family of standards
for direct satellite television broadcasting, and Council Decision,
OJNoL311,6. 11. 1986.
( [4] ) Cf Commission communications to the Council, the European
Parliament and the Economic and Social Committee —
European Cinema and Television Year (1988) — COM(86) 320
final.

The Committee feels that any economic decision in this field
takes on a cultural dimension.

1.6. The Committee insists that all further initiatives by
the Council or the Commission in the cultural field should

promote European pluralism and show respect for
minorities.

It also wishes the Community to provide itself with adequate
funds to carry out a culturally balanced policy of this
kind.

1.7. The Committee would suggest already that the
Commission consider setting up a European public body
with trans-national responsibilities in the field of
broadcasting which would be able to discuss the
implementation of the Directive with the trans-national
broadcasting organizations.

1.8. Concluding its general comments, the Committee
would ask the Commission to provide for a right of reply, so
as to guarantee equal protection of personal integrity in all
the Member States.

2. Specific comments

_Article 1_

2.1. The Committee doubts the effectiveness of the

provisions contained in this Article. The Committee notes
that this Article, which defines the respective responsibilities
of the Member States concerned, does not tackle the problem
of advertising emanating from one Member State and
directed specifically at another State.

In order to prevent provisions on advertising from being
circumvented by cross-frontier TV broadcasts, the
Committee thinks that Member States must harmonize these

provisions and make them common EC rules.

_Article 1.3._

2.2. For technical reasons the Committee doubts the

appropriateness of this provision.

It would ask the Commission to conclude agreements with as
many third countries as possible, particularly within the
framework of the Council of Europe, in order to prevent the
aims of this Directive from being circumvented.

_Article 2_

2.3. The Committee approves the aim of encouraging the
production of Community works, especially in order to
increase employment opportunities and promote European
creativity.

It would, however, question the expediency of the proposed
measures both as regards the possibilities of achieving the
declared aims and as regards monitoring.

31. 8. 87 Official Journal of the European Communities No C 232/31

It considers that the factors taken into account in determining
the aims are not sufficiently clear.

A quota system should be viewed not so much in terms of the
national identity of the programmes (which is a matter for the
Member States) as in terms of promoting the production of
television programmes in the Community. There is a risk that
a guaranteed market for all European productions might
adversely affect their quality, since they would not have to be
internationally competitive.

Any quota system introduced to protect European producers
should, where necessary, take account of the specific
situations in the Member States, and it should be ensured that
the system remains flexible and adaptable.

The situation differs from one Member State to another,
particularly inasmuch as Member States have linguistic and
cultural ties with third countries and are frequently obliged
under cultural agreements to take the productions of such
third countries.

At all events, the system should be reviewed in the light of
experience, on expiry of the period specified in Article 23.

_Article 3_

2.4. In order to avoid diverging interpretations which
could cause distortions in the various Member States, the
Committee would ask the Commission to define the term

'independent producers', in order to bring out more clearly
that they must be independent of the broadcaster.

The Committee welcomes the Commission's intention to

encourage employment in the media sector.

However, it wonders whether the measure envisaged in the
proposal for a Directive is likely to achieve this aim.

_Article 4 c)_

2.5. The Committee wonders about the exact scope of
this provision, which appears to take as the criterion for the
Community nature of a work the origin of the funds for
financing it. If this is the right interpretation of this provision,
the Committee does not think this a useful criterion to adopt.
The Committee wonders whether it would not have been

preferable to adopt a 'Community enterprise' criterion here,
given that this concept can embrace a certain foreign
participation in the capital on the company.

_Article 5_

2.6. The Committee endorses the Commission's declared

intention to make sure that in the advertising sphere the
various media continue to co-exist and complement each
other.

The Committee considers that there is a risk of concentration

in the commercial television sector, which could give rise to a
threshold effect that would confine this type of advertising to
the brands of a limited number of large firms.

_Article 6_

2.7. Given the considerable latitude allowed the Member

States in interpreting some provisions of this proposal for a
Directive, the Committee is worried about the risk of
diverging interpretations. It wonders whether the competent
Community authorities will be able to ensure uniform
interpretation and, if necessary, effectively eliminate any
abuses found in broadcast advertising.

2.8. The Committee therefore suggests that a
transnational complaints committee, independent of the
Community authorities, be set up to examine any abuses in
advertising. The various parties involved should be fairly
represented on such a committee.

2.9. The complaints committee could also come into
action at the direct request of a broadcaster in the context of a
voluntary prior check to ensure legal certainty.

2.10. As regards the national level, Article 6 (1) should
specify that the prior check may be carried out only by bodies
which operate completely independently of the public
authorities and on which the media, the advertising world
and consumers are represented. At all events, the national
enforcement measures of the Member State where the

braodcast ismade (cf. Article 6 (2)) should be applied if the
provisions of the Directive are not respected.

_Article 7_

2.11. The Committee agrees with this provision, which
of course is concerned only with direct advertising and clearly
distinguishes advertising from other programme material. It
would draw attention to the fact that it endorsed this

minimum requirement in its opinion on the Green Paper.

2.12. However, with regard to 3 (c) of this Article, it
wonders whether the suggestion made in the same opinion
that only one interruption be authorized for some
programmes did not constitute a clearer solution and avoid
the risk of diverging interpretations.

No C 232/32 Official Journal of the European Communities 31. 8. 87

_Article 8_

2.13. The Committee approves the aims of this
provision. It is, however, very much aware of the fact that
some standards vary with the passage of time and according
to place, and that there may be problems of diverging
interpretations.

It would also like the Commission to add to Article 8 (b) a
ban on discrimination on the basis of nationality.

_Article 9_

2.14. The Committee approves of the ban on broadcast
advertising for cigarettes and other tobacco products. It is
aware that problems of illicit advertising may arise; however,
it feels it is up to the relevant supervisory bodies to establish
national case law on this matter.

2.15. The Committee considers that it should be left to

the national legislatures to decide, in the light of national and
international rules on the sale of pharmaceutical- products
and ethical codes, whether there should be a complete or
partial ban on the advertising of medicines.

_Article 11_

2.16. The Committee, while endorsing the rules of
conduct on broadcast advertising directed at children and
young persons, has doubts about the practical application of
vaguely worded provisions and effective monitoring of their
observance.

Given the vulnerability of the section of the public covered by
these provisions, the Committee would have preferred a
minimum of more binding rules with a more precise content
to be laid down.

It therefore asks the Commission to consider banning the
interruption by advertising of programmes specifically
intended for children and young persons, as well as the
advertising of toy weapons.

It would also suggest that clause (a) of this Article be
amended to stress that the stimulus to buy must not arise out
of exploitation of the inexperience and credulity of children
and young persons.

It would also like the Commission to reflect on possible
problems arising from the participation of children and
young persons in advertisements.

_Article 12_

_2.11._ The Committee is worried about the limited nature

and the very vague content of the provisions on sponsorship,
despite the fact that provisions in this area are necessary to
guarantee the independence of artistic and journalistic
work.

The Committee insists that the sponsor must not interfere
with the content of programmes.

_Article 13_

2.18. The Committee wishes to draw the Commission's

attention to the risk of distortions of competition which
could result from the adoption of national provisions which
selectively prohibit advertising for certain alcoholic
beverages.

It therefore suggests the insertion of an additional paragraph
designed to avoid such distortions by obliging Member States
which avail themselves of this Article to treat all alcoholic

beverages in the same way.

_Article 14_

2.19. As regards a ceiling for broadcast advertising time,
the Committee would observe that no definitive stand was

taken on this in the own-initiative opinion on the Green
Paper. The point was made, however, that the broadcasting
organizations would have to exercise restraint here. This
would be in their own interest, since the viewers' tolerance
threshold must not be exceeded — too much advertising
would be liable to lead automatically to a negative reaction
on the part of the viewer, who would switch to another
station. This is a reaction to which the advertiser could not be

indifferent.

2.20. The Committee thinks that the fixing of such a
ceiling involves a number of consequences which should be
borne in mind.

Too severe a limitation of broadcast advertising time could
lead to a contraction of the market and promote
concentrations and oligopolies of a few particularly powerful

groups.

Such a restricted volume of advertising would lead to an
increase in broadcasting organizations' rates, making
advertising accessible only to large enterprises.

2.21. If is also liable to lead to a concentration of

advertising at peak viewing/listening times, thus saturating
the consumer with advertising.

There is also the risk of encouraging in this way an increase in
the number of duration of programme interruptions for
advertising.

In addition to the daily quota, the Committee advocates the
fixing of hourly quotas which could be varied according to
peak viewing/listening times.

Furthermore, there are absolutely no provisions on the
distribution of advertising in relation to overall broadcasting
time.

31. 8. 87 Official Journal of the European Communities No C 232/33

2.22. Since it is desirable that radio and television

programmes should on the one hand help to finance the
broadcasting organizations and on the other hand guarantee
the freedom of choice of the citizen, the Committee would
propose that a distinction be made between those
broadcasting organizations that are subject to a ban on
advertising and those that are not, with account being taken
of the constraints the organizations are subjected to.

2.23. Finally, the fixing of limits may cause significant
financial difficulties to local or regional television stations
which rely on advertising revenue.

2.24. The Commission notes that current broadcast

advertising time in the various Member States only rarely
reaches the figure of 15 % envisaged by the Commission.

The Committee would urge that account be taken of this
situation when a maximum for broadcast advertising time is
fixed in an EEC Directive. Under no circumstances should

the permitted broadcast advertising time exceed 10 %.

The Committee thinks, however, that the proposed limit
could be reviewed at the end of the trial period envisaged in
Article 23 of the draft Directive.

_Article 15_

2.25. The Committee endorses the provisions with
regard to the protection of children and young persons. It
considers that the rules of conduct for this purpose should be
accompanied and supported by systematic consumer
education at national level so that young people constantly
exposed to broadcasting may learn to develop a critical
awareness of both programmes and advertisements.

As regards paragraph 2 of this Article, the Committee
proposes — with a view to ensuring adherence to democratic
principles — that all forms of prior censorship be abolished,
as provided for in the constitutions of a number of Member
States.

_Article 17_

2.26. The Committee notes that the question of the
protection of intellectual property concerns also sectors other
than broadcasting and it considers therefore that copyright
arrangements confined to this sector are not a rational

Done at Brussels, 1 July 1987.

approach to the problem and are not in keeping with the
interests of either copyright owners or consumers. It
accordingly calls upon the Commission to draw up without
delay a seperate proposal comprehensively regulating
copyright in the Community and providing also a guarantee
for acquired rights.

_Article 18_

_2.21._ The Committee reaffirms the principle of
contractual agreement in the copyright field. It emphasizes
once again that it prefers contractual solutions and
accordingly rejects the statutory licence. It would point out
that the exclusive reference to cable transmission is

inappropriate and unjustifiably restrictive.

2.28. The Committee considers that the arbitration

arrangements at national level are adequate. It takes the view
that an administrative body without appropriate
representation of all parties concerned would not be a good
idea.

Provision should, however, be made for a Community-level
arbitration body as a possible 'court of appeal' on which the
parties concerned would be represented. This body should
ensure that a solution is arrived at within a reasonable

period.

_Article 19_

2.29. The Committee considers that, whatever the
system of arbitration, the provisions of paragraph 2 of
Article 19 are too limitative and it calls for a more complete
specification of the minimum requirements.

2.30. In order to stress the importance of the moral rights
of copyright owners, it should be laid down in the Directive
that the relevant conventions form an integral part of the
Directive.

_Article 23_

2.31. The Committee welcomes the fact that a report on
the implementation of the Directive will be presented by the
Commission and submitted to the Committee for

examination.

_The Chairman_

_of the Economic and Social Committee_

Alfons MARGOT