CELEX: 51996PC0200
Language: en
Date: 1996-05-07
Title: Amended proposal for a EUROPEAN PARLIAMENT AND COUNCIL DIRECTIVE 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

COMMISSION OF THE EUROPEAN COMMUNITIES
                                                 Brussels, 07.05.1996
                                                 COM(%) 200 final
                                                 95/0074 (COD)
                            Amended proposal for a
          EUROPEAN PARLIAMENT AND COUNCIL DIRECTIVE
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
          (presented by the Commission pursuant to Article 189 a (2)
                               of the EC-Treaty)
 ---pagebreak---  ---pagebreak---                               EXPLANATORY MEMORANDUM
1.       Introduction
1.1      The 1989 Directive1
The 1989 Directive was adopted in order to create the legal reference framework needed
at Community level to ensure the free movement of television broadcasts. This is
achieved through the coordination of national rules in the fields where the disparities
between them were - or are potentially - such as to create legal barriers to free
circulation. The fields concerned are respectively jurisdiction, the promotion of
distribution and production of television programmes, advertising and sponsorship, the
protection of minors and the right of reply. Member States may not restrict the reception
or the retransmission of broadcasts from other Member States for reasons which fall
within the coordinated fields. A Member State may only lay down more detailed or
stricter rules in these fields as regards broadcasters under its own jurisdiction. The main
objective of the Directive is to achieve free circulation. Because it uses the method of
the coordination of national rules where necessary to achieve this primary objective, the
Directive also espouses the objectives of those national rules. It is the cornerstone of the
"European audiovisual space" and has been, or is in the process of being supplemented
by complementary legal measures (in particular the cable and satellite copyright
Directive2).
1.2      The History of the Proposal for a Directive amending the 1989 Directive
Article 26 of the 1989 Directive requires the Commission to present a report on its
application five years after adoption, accompanied if appropriate by proposals to adapt
it to developments in the field of television broadcasting. The Commission's services
carried out an extensive consultation process in 1994. The Commission presented to
Parliament and Council a Communication including the application report, the
introductory statement and the proposal for a Directive amending the 1989 Directive on
         Council Directive 89/552/EEC of 3 October 1989 "on the coordination of certain provisions laid
         down by law, regulation or administrative action in Member States concerning the pursuit of
         television broadcasting activities" (OJ L298 p. 23 17.10.1989)
         Council Directive 93/83/EEC (OJ L248, p. 15, 06.10.1996).
         See also the recent "Green Paper on the legal protection of encrypted signals" COM(96)76
                                                  •X
 ---pagebreak--- 31 May 19953. The purpose of the proposal is to adapt and clarify certain provisions of
the 1989 text in the light of the experience gained in its implementation and of
developments in the sector. The current Directive remains in force until amended (the
next report on application is due in October 1996).
The Economic and Social Committee adopted its opinion on 13 September 1995 (CES
972/95).
On 14 February 1996 Parliament adopted a legislative resolution4 in the first reading
under the co-decision procedure (Art. 189 (b) EC Treaty) approving the Commission's
proposal subject to the amendments it had made. In parallel, the Council of Ministers
was examining the proposal and held a full debate at ministerial level at its meeting on
20 November 1995 pending the adoption of Parliament's opinion in accordance with the
co-decision procedure.
2.      The amended proposal
2.1     Parliament's amendments
The amended proposal set out here incorporates the amendments accepted by the
Commission. A large number of amendments (25) were accepted in part or in spirit and
5 as such i.e. roughly half the amendments actually adopted by Parliament. This
memorandum will explain how these have been incorporated into the text and will
provide further specific comments on the Commission's reasoning where appropriate. In
general terms, the Commission has done its utmost to take the greatest possible account
of Parliament's wishes as expressed in the first reading. Where it has not been able to
incorporate an amendment, either partially or not at all, this is for one or several of the
following categories of reason:
                the amendment, either on its own or in combination with other
                amendments, would seriously upset the balance of the Commission's
                proposal;
                the amendment includes measures that would be impossible to implement
                in practical terms, in the Commission's view;
                the amendment presents, in the Commission's view, serious legal
                difficulties.
2.2     Explanation of the amendments incorporated
The right-hand column of the attached document constitutes the Commission's amended
proposal. The amendments are underlined. The left-hand column represents the
Commissions initial proposal and is provided for ease of reference.
3
        OJC185, p. 4, 19.07.1995
4
        EP 196.583
                                                d cx
 ---pagebreak--- Recital 5(a) incorporates in part Parliament's amendment no. 35. This is because the
Commission considers that while it is acceptable to state that future Community legal
measures must be compatible with existing measures in the same field, to go beyond such
a statement would prejudge the outcome of future legislative processes.
Recital 9 incorporates a change made necessary by Parliament's amendment no. 22 which
has been partially incorporated into Article 2(3).
Recital 11 incorporates a change made necessary by Parliament's amendment no. 28 the
spirit of which has been incorporated into Article 3(2).
Recital 15a corresponds to Parliament's amendment no. 88.
Recital 17a corresponds to Parliament's amendment no. 10 (and, in part, no. 4).
Recitals 21 (a) to (c) correspond to Parliament's amendment no. 35. The Commission
considers that while it is useful, for the purposes of the implementation of Article 5, to
have a guideline definition of what is meant by the term "independent producer", it
would be too prescriptive, given the very diverse nature of the independent production
sector in the Member States, to include such a definition in an Article. It is therefore
proposed to include the definition in a recital. Moreover, the actual definition must be
flexible enough to take account of this diversity. For example, in some smaller Member
States there are very few broadcasters (in some cases, such as Austria and Ireland, there
is currently only one). It is not possible therefore to stipulate in absolute terms that a
producer is only independent if he or she does not supply to the same broadcaster more
than 90% of the works he or she produces. A further useful criterion 6f independence
to be taken into account is the degree to which the producer retains the right to exploit
the work on secondary markets (eg. after first broadcast or after a certain time) as
suggested by the amendment.
Recital 22a refers to Article 1 new paragraph (d) (definition of television advertising) and
Article 18(1) which have been modified to take account of Parliament's Amendment no.
20 (in as far as the matter is not already covered by the current definition).
Recital 23 is modified to incorporate partially Parliament's amendment no. 12.
Recital 24 takes account, in part, of Parliament's amendment no. 52. It also incorporates
changes made necessary by the amendment of Article 22 (2) which itself now takes
account of Parliament's amendment no. 76.
        This is the first of Parliament's amendments to be incorporated into the text of the amended
        proposal following the order of the recitals. However, it should be noted that Amendment no. 1
        is identical to recital no. 16 of the 1989 Directive. This recital remains valid as it is not affected
        by the Directive amending the 1989 Directive and therefore there is no need (and it is not possible)
        to incorporate Amendment no. 1 into the Commission's amended proposal (as it is already in the
         1989 text).
                                                          *.    ft-
 ---pagebreak--- Recital 24a is included to take account of Parliament's amendments no. 14, 15, 62 and
55 (the latter being the so-called "V-chip" amendment); it corresponds to new Article 22b
included to take account of the same series of amendments.
Recital 25 is modified to incorporate Parliament's amendment no. 26 which itself relates
to Article 3(1).
It should be pointed out that Article 3(1), which states that Member States remain free
to require television broadcasters under their jurisdiction to comply with more detailed
or stricter rules than those laid down by the Directive, does not as such create any legal
obligation for the Member States. It therefore makes no difference, in legal terms,
whether the list of areas in which Member States may take such measures and, which is
indicative in nature, is included in an Article or in a recital. The Commission has a
preference for the latter for reasons of presentation and clarity.
Article 1 new paragraph (b). The Commission accepted this part of Parliament's
amendment no. 18 because it considers that it is an improvement, in terms of legal
security, to include this definition of what is meant by the term "television programme"
in Article 1(a) (the weakness of which is due to the fact that television broadcasting is
defined by reference to television programmes giving rise to a somewhat circular
definition). However, this addition does not change the scope of the definition of
television broadcasting, which is circumscribed by the terms "to the public" and "it does
not include communication services — on individual demand". The Commission
explained in the Explanatory Memorandum to the initial proposal why it considers that
it would be inappropriate to extend the scope of this Directive beyond that of the 1989
text (i.e. the point-to-multipoint transmission of television programmes intended for
reception by the public).
Article 1 new paragraph (c) corresponds to Parliament's amendment no. 19. The
Commission considers that it is useful to include a definition of the organisations which
have to comply with the national provisions transposing those of the Directive. The
definition proposed matches the one proposed by Parliament with the one used in the
Council of Europe's Transfrontier Television Convention. It is based on three essential
elements:
                 it concerns natural or legal persons (as in the Convention)
                 who have editorial responsibility for the composition of schedules of
                television programmes (this corresponds to the 2nd and 3rd parts of
                 Parliament's definition and to the 2nd part of the Council of Europe's
                 definition)
                who transmits, or has transmitted, these programmes (the 3rd part of the
                 Council of Europe's definition).
                                                   a c
 ---pagebreak--- Article 1(d). This is paragraph (b) of the 1989 text modified to take account of
amendment no. 20. It should be seen in conjunction with recital no. 22a. The purpose
 is to make it clear that the basic consumer protection rules in Articles 10 to 16 apply to
 self-promotional forms of advertising (see also amended Article 18).
 Article 1 (g) is paragraph (e) of the Commission's proposal modified to take account of
amendment no. 21 and to align the reference to goods and services with the one in new
paragraph (d).
Article 2 paragraphs 2.3 and 4 have been modified to take account of amendments no.
22, 23 and 24 (jurisdiction criteria). The Commission agrees that it is important to
provide for detailed criteria making it possible to determine, with a sufficient degree of
clarity and by reference to the specific nature of the activities involved, the place of
establishment of the broadcaster for the purpose of determining which Member States has
jurisdiction. However, this implies an exhaustive hierarchical arrangement of the three
specific criteria that have been chosen (head office, place where editorial decisions are
taken, and place where a significant part of the workforce is located) in order to take
account of all the possible combinations of the criteria. Failure to establish a hierarchical
order would give rise to positive conflicts (several States claiming jurisdiction) or
negative conflicts (legal vacuum). Moreover, the Commission cannot accept paragraph
(c) of amendment 23 for the following reasons:
      by introducing the criterion of the State for which the programmes are intended it
      reverses the "home country control principle" of the Directive and would make it
      unworkable;
      it is contrary to the logic of the Treaty;
      it is self-defeating, as the result would be that jurisdiction could not be determined
      on the basis of the three chosen criteria and therefore would have to be determined
      on the basis of the purely technical criteria contained in paragraph 4 (frequency,
      satellite capacity or up-link).
Article 2a has been modified to take account partially of amendment 24. However, the
Commission cannot accept the part of the amendment that extends to advertising a
procedure designed to deal with grave violations of the rules on protection of minors in
programmes. It would be wholly inappropriate to confuse these two very different
issues. Moreover, it would reverse in onefieldthe "home country control" principle and
thereby make the Directive unworkable.
Article 3 paragraph 2 has been modified to take account of amendments no. 27 (effective
compliance) and 28 (third party redress ).
(Amendment no. 35 has been incorporated into recital no.21a - see above).
Article 6 paragraph 1 incorporates a new sub-paragraph (d) which the Commission
considers necessary in view of certain recent developments in the broadcasting legislation
of some of the European third countries referred to in sub-paragraphs (b) and (c). This
                                                    d    a
 ---pagebreak--- addition also corresponds in part to what the Commission construes as being the spirit
of Parliament's amendment no. 36.
Article 7 is modified to incorporate partially amendment no. 37. The wording of the first
sentence emphasizes that windows are first and foremost a matter for the contracting
parties. The duration of the windows is adjusted according to the amendment.
However, the Commission considers that the provision in sub-paragraph (b) referring to
works co-produced by the broadcaster renders the last paragraph in the amendment
superfluous. Moreover, it is not possible, in the internal market, to take any other date
than that of first release in the Community as the starting date for the various windows.
Article 9 incorporates a change that corresponds in part to amendment no. 38.
Articles 10 and 11 now incorporate references to teleshopping as in amendments no. 39,
40 and 42.
Article 11(3) incorporates the part of amendment no. 41 referring to films produced for
television. The Commission cannot accept the part of the amendment stating that the
basis for the calculation of the number of breaks allowed should be scheduled duration
"exclusive of all interruptions". This would impose an unnecessary restriction that would
impact very negatively on broadcasters' revenue streams.
Articles 12 (c) incorporates amendment no. 43.
Article 14 has been modified to incorporate the essence of the 2nd part of Parliament's
amendment no. 44 with wording that is compatible with existing Community regulations.
The first part of the amendment is not acceptable as it reverses the home country control
principle of the directive and is incompatible with Court of Justice case law (notably the
"Bond van Adverteeders" judgement, CJCE 352/86 of 24.04.1988). However, a wide
prohibition on teleshopping for medical products, by reference to existing Community
regulations, can be justified on the one hand by public health concerns, and on the other,
by the fact that teleshopping differs from advertising and sponsorship in that it entails a
much more direct relationship with the final consumer.
Article 17 includes a new paragraph 2a that incorporates changes that reflect the
development of the debate on sponsorship of programmes by pharmaceutical companies
since the Commission's initial proposal.
Article 18 incorporates changes deriving in part from amendments 45 and 46. However,
the Commission is of the opinion that it is neither desirable nor possible to exclude forms
of advertising other than spot advertising. It also incorporates a change relating to
announcements made by broadcasters in connection with their own programmes that is
made necessary by the amended definition of "television advertising" in Article 1 in order
to avoid such announcements having to be counted within the daily advertising limit.
Article 18a reflects amendment no. 74 on teleshopping within channels other than
teleshopping channels.
                                                   4--Û-
 ---pagebreak--- Article 19 corresponds to Article 18b in the Commission's initial proposal concerning
teleshopping channels and other channels devoted exclusively to commercial promotion.
The Commission does not consider it appropriate to place quantitative restrictions of the
type that apply, by virtue of Article 18, to conventional channels on channels exclusively
devoted to forms of commercial promotion or direct selling. The latter have a different
purpose and do not compete on the same market segments as the former.
Article 20 incorporates a change that brings it into line with the terminology used in
Article 9 and incorporates in part amendment no. 51.
Article 22 (2) corresponds to amendment no. 76 in particular and to concerns about the
protection of minors in general as expressed in amendments nos. 14, 15, 62, 52 and 55
(see also recital no. 24). However, the Commission considers that it could be
unnecessarily prescriptive to require a programme that is already encoded to incorporate
warning signals. Moreover, one or other of the forms of warning (acoustic or visual) is
sufficient to achieve the purpose of alerting the viewers.
Article 22 (b) includes a new second paragraph that corresponds in particular to
amendments nos. 62 and 55 (see also recital no. 24a). The Commission considers that
the "V-chip" is an interesting development that could provide an effective way of
ensuring greater parental control. However, this idea requires further investigation before
it can be incorporated into binding legal measures at Community level. In particular, the
matter of the rating system poses specific problems in the context of transfrontier
television in Europe. Furthermore, the inter play between the "V-chip" and existing
family viewing policies, including watersheds at specific times, requires in-depth analysis
in order to be sure that the new development will complement rather than undermine
existing measures. Finally by taking the time needed to analyze all these questions,
Europe will also be able to benefit from the experience that will be gained by the United
States and Canada in implementing V-chip legislation.
Article 26 corresponds partially to amendment no. 58. The Commission agrees that
developments in the field of television broadcasting need to be taken into account in the
implementation of the Directive, including any future revision, but considers that to limit
the scope of the analyses that will be required to services operating solely on individual
demand would be to adopt too narrow an approach. This is why the Commission prefers
the wider notion of technological developments in general.
                                                      S
 ---pagebreak---                            Amended proposal for a
                European Parliament and Council Directive
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
                                           9
 ---pagebreak---            INITIAL PROPOSAL                             AMENDED PROPOSAL
THE EUROPEAN PARLIAMENT AND THE EUROPEAN PARLIAMENT AND
THE COUNCIL OF THE EUROPEAN THE COUNCIL OF THE EUROPEAN
UNION,                                         UNION,
Having regard to the Treaty establishing the Having regard to the Treaty establishing the
European Community, and in particular European Community, and in particular
Articles 57(2) and 66 thereof,                 Articles 57(2) and 66 thereof,
Having regard to the proposal from the Having regard to the proposal from the
Commission1,                                   Commission,
Having regard to the opinion of the Having regard to the opinion of the
Economic and Social Committee2,                Economic and Social Committee,
Acting in accordance with the procedure Acting in accordance with the procedure
referred to in Article 189b of the Treaty3,    referred to in Article 189b of the Treaty,
1. Whereas Council Directive 89/552/EEC4 Whereas Council Directive 89/552/EEC
constitutes the legal framework for constitutes the legal framework for
broadcasting in the internal market;           broadcasting in the internal market;
2. Whereas Article 26 of Directive             Whereas Article 26 of Directive
89/552/EEC states that the Commission          89/552/EEC states that the Commission
shall, no later than the end of the fifth year shall, no later than the end of the fifth year
after the date of adoption of the Directive,   after the date of adoption of the Directive,
submit to the European Parliament and the      submit to the European Parliament and the
Economic and Social Committee a report         Economic and Social Committee a report
on the application of the Directive and, if    on the application of the Directive and, if
necessary, make further proposals to adapt     necessary, make further proposals to adapt
it to developments in the field of television  it to developments in the field of television
broadcasting;                                  broadcasting;
       OJN'
       OJN*
       OJN"
       OJNTL298, 17.10.1989, p. 23
 ---pagebreak--- 3. Whereas the application of Directive       Whereas the application of Directive
89/552/EEC and the report on its              89/552/EEC and the report on its
application have revealed the need to clarify application have revealed the need to clarify
certain definitions or obligations on         certain definitions or obligations on
Member States under this Directive;           Member States under this Directive;
4. Whereas the Commission in its              Whereas the Commission in its
Communication of 19 July 1994 entitled        Communication of 19 July 1994 entitled
"Europe's way to the information society.     "Europe's way to the information society.
An action" underlined the importance of a     An action" underlined the importance of a
regulatory framework applying to the          regulatory framework applying to the
content of audiovisual services which         content of audiovisual services which
would help to safeguard the free movement     would help to safeguard the free movement
of such services in the Community and be      of such services in the Community and be
responsive to the opportunities for growth    responsive to the opportunities for growth
in this sector opened up by new               in this sector opened up by new
technologies,.while at the same time taking   technologies, while at the same time taking
into account the specific nature, in          into account the specific nature, in
particular the cultural and sociological      particular the cultural and sociological
impact, of audiovisual programmes,            impact, of audiovisual programmes,
whatever their mode of transmission;          whatever their mode of transmission;
5. Whereas the Council welcomed this          Whereas the Council welcomed this action
action plan at its 1787th meeting on 28       plan at its 1787th meeting on 28 September
September 1994 and stressed the need to.      1994 and stressed the need to improve the
improve the competitiveness of the            competitiveness of the European
European audiovisual industry;                audiovisual industry;
5a.                                           Whereas the addition of a definition of a
                                              "television programme" shall bv no means
                                              be interpreted as extending the scope of
                                              application of this Directive, to new
                                              services such as video-on-demand and on-
                                              line or internet type services and whereas
                                              any legislative framework concerning new
                                              audiovisual services must be compatible
                                              with the primary objective of this Directive
                                              which is to create the legal framework for
                                              the free circulation of services:
6. Whereas the Heads of State and             Whereas the Heads of State and
Government meeting at the European            Government meeting at the European
Council in Essen on 9 and 10 December         Council in Essen on 9 and 10 December
 1994 called on the Commission to present a    1994 called on the Commission to present a
proposal for a revision of Directive          proposal for a revision of Directive
89/552/EEC before their next meeting;         89/552/EEC before their next meeting;
 ---pagebreak--- 7. Whereas the application of Directive                          Whereas the application of Directive
89/552/EEC has revealed the need to clarify                      89/552/EEC has revealed the need to clarify
the concept of jurisdiction as applied                           the concept of jurisdiction as applied
 specifically to the audiovisual sector;                         specifically to the audiovisual sector;
whereas, in view of the case law of the                          whereas, in view of the case law of the'
Court of Justice of the European                                 Court of Justice of the European
Communities, the establishment criterion                         Communities, the establishment criterion
should be made the principal criterion                           should be made the principal criterion
determining the jurisdiction of a particular                     determining the jurisdiction of a particular
Member State;                                                    Member State;
8. Whereas the concept of establishment                          Whereas the concept of establishment
according to the criteria laid down by the                       according to the criteria laid down by the
ODUrt of Justice in its judgment of 25 July                      Court of Justice in its judgment of 25 July
 1991 in Factortame5. involves the actual                         1991 in Factortame. involves the actual
pursuit of an economic activity through a                        pursuit of an economic activity through a
fixed establishment for a indefinite period;                     fixed establishment for a indefinite period;
9. Whereas the establishment of a television                     Whereas the establishment of a television
broadcasting organization, for the purpose                       broadcasting organization, for the purpose
of Directive 89/552/EEC, as amended by                           of Directive 89/552/EEC, as amended by
this Directive, may be determined by a                           this Directive, may be determined by a
series of practical criteria such as the                         series of practical criteria such as the
location of the head office of the provider                      location of the head office of the provider
of services, the place where decisions on                        of services; the place where decisions on
programming policy are usually taken, the                        programming policy are usually taken, the
place where the programme to be broadcast                        place where the programme to be broadcast
to the public is finally mixed and processed,                    to the public is finally mixed and processed,
provided that a significant proportion of the                    and the place where a significant proportion
workforce required for the pursuit of the                        of the workforce required for the pursuit of
television broadcasting activity is located in                  the television broadcasting activity is
the same Member State;                                           located:
       Case C-221/89, Queen v Secretary of State for Transport, ex parte Factortame. [1991] ECR 1-3905, para. 20.
                                                             4
 ---pagebreak--- 9a. Whereas the fixing of a series of material
    criteria is designed to determine bv an
    exhaustive procedure that one Member
    State and one only is competent for a
    broadcaster in connection with the pursuit
    of the provision of the services which the
    directive addresses: nevertheless, taking into
    account the case law of the Court of Justice
    and so as to avoid cases where there is a
    vacuum of competence, if the question as to
    which Member State has jurisdiction cannot
    be determined according to these material
    criteria, the competent Member State is that
    in which the broadcaster is established
    within the meaning of Article 52 and the
    following of the EC Treaty:
 ---pagebreak--- 10. Whereas the Court of Justice has                               Whereas the Court of Justice has constantly
constantly held6 that a Member State retains                       held that a Member State retains the right
the right to take measures against a                               to take measures against a television
television broadcasting organization that is                       broadcasting organization that is established
established in another Member State but                            in another Member State but directs all or
directs all or most of its activity to the                         most of its activity to the territory of the
territory of the first Member State if the                         first Member State if the choice of
choice of establishment was made with a                            establishment was made with a view to
view to evading the legislation that would                         evading the legislation that would have
have applied to the organization had it been                       applied to tHe organization had it been
established in the territory of the first                          established in the territory of the first
Member State;                                                      Member State;
11. Whereas any interested party in the                            Whereas directly affected third parties,
Community must be able to assert its rights                        including nationals of other Member States,
in the competent courts of the Member                              must be able to assert their rights in the
State with jurisdiction over the television                        competent courts or administrative bodies
broadcasting organization that is failing to                       of the Member State with jurisdiction over
comply with the national provisions arising                        a television broadcasting organization that
out of the application of this Directive;                          may be failing to comply with the national
                                                                   provisions arising out of the application of
                                                                   this Directive;
12. Whereas Member States are free to take                         Whereas Member States are free to take
whatever measures they deem appropriate                            whatever measures they deem appropriate
with regard to broadcasts coming from third                        with regard to broadcasts coming from third
countries, and which do not satisfy the                            countries, and which do not satisfy the
conditions laid down in Article 2 of                               conditions laid down in Article 2 of
Directive 89/552/EEC, provided they                                Directive 89/552/EEC, provided they
comply with Community law and the                                  comply with Community law and the
international obligations of the Community;                        international obligations of the Community;
 13. Whereas in order to eliminate the                             Whereas in order to eliminate the obstacles
obstacles arising from differences in                              arising from differences in national
national legislation on the promotion of                           legislation on the promotion of European
European works, Directive 89/552/EEC                               works, Directive 89/552/EEC contains
contains provisions aimed at harmonizing                           provisions aimed at harmonizing these
these regulations; whereas those provisions                        regulations; whereas those provisions
which, in general, permit the liberalization                       which, in general, permit the liberalization
of trade must contain provisions                                   of trade must contain                           provisions
harmonizing the conditions of competition;                         harmonizing the conditions of competition;
        See, in particular, the judgments in Case 33/74, Van Binsbergen v Bestuur van de BedrijfsvereniRing. [1974] ECR 1299 and in
        Case C-23/93. TV 10 SA v Commissariaat voor the Media f 19941 ECR 1-4795
 ---pagebreak--- 14. Whereas, moreover, Article 128(4) of       Whereas, moreover, Article 128(4) of the
the Treaty requires the Community to take      Treaty requires the Community to take
cultural aspects into account in its action    cultural aspects into account in its action
under other provisions of the Treaty;          under other provisions of the Treaty;
 15. Whereas the Green Paper on "Strategy      Whereas the Green Paper on "Strategy
options to strengthen the European             options to strengthen the European
programme industry in the context of the       programme industry in the context of the
audiovisual policy of the European Union",     audiovisual policy of the European Union",
adopted by the Commission on 7 April           adopted by the Commission on 7 April
 1994, emphasizes in particular the need to    1994, emphasizes in particular the need to
step up measures to promote European           step up measures to promote European
works in order to further the development      works in order to further the development
of the sector;                                 of the sector;
 15(a)                                         Whereas broadcasting organizations,
                                               programme makers, producers, authors and
                                               other experts should develop more detailed
                                               concepts and strategies aimed at developing
                                               European audiovisual fiction films that are
                                               addressed to a large audience:
 16. Whereas, in addition to the               Whereas, in addition to the considerations
considerations cited above, it is necessary to cited above, it is necessary to create
 create conditions for improving the           conditions for improving the
 competitiveness of the programme industry;    competitiveness of the programme industry;
 whereas the Communication on the              whereas the Communication on the
 application of Articles 4 and 5 of Directive  application of Articles 4 and 5 of Directive
 89/552/EEC , adopted by the Commission        89/552/EEC , adopted by the Commission
 on 3 March 1994 pursuant to Article 4(3),     on 3 March 1994 pursuant to Article 4(3),
 shows that the measures to promote            shows that the measures to promote
 European works can contribute to such an      European works can contribute to such an
 improvement, but that they need to be         improvement, but that they need to be
 modified to take account of developments      modified to take account of developments
 in the field of television broadcasting.       in the field of television broadcasting;
  17. Whereas, if Article 4 of Directive        Whereas, if Article 4 of Directive
 89/552/EEC, as amended by this Directive,      89/552/EEC, as amended by this Directive,
 is effectively implemented over a ten-year     is effectively implemented over a ten-year
 period, it should be possible, given the       period, it should be possible, given the
 impact of the financial instruments available  impact of thefinancialinstruments available
 to the Community and the Member States,        to the Community and the Member States,
 to achieve the objective of strengthening the  to achieve the objective of strengthening the
 European programme industry;                   European programme industry;
 ---pagebreak--- 17(a)                                           Whereas the Media II programme, which
                                                seeks to promote training and distribution in
                                                the audiovisual sector, is also designed to
                                                enable the production of European works to
                                                be developed:
18. Whereas it is necessary to ensure the       Whereas it is necessary to ensure the
effective application of such measures          effective application of such measures
throughout the Community in order to            throughout the Community in order to
preserve free and fair competition between      preserve free and fair competition between
firms in the same industry; whereas the         firms in the same industry; whereas the
application of such measures could help to      application of such measures could help to
reinforce mutual trust between Member           reinforce mutual trust between Member
States;                                         States;
 19. Whereas, at the end of the ten-year        Whereas, at the end of the ten-year period,
period, any national measures in this field     any national measures in this field must not
must not interfere with the principle of free    interfere with the principle of free
circulation of services by restricting the       circulation of services by restricting the
reception or retransmission of television        reception or retransmission of television
 broadcasts from other Member States;            broadcasts from other Member States;
 20. Whereas the proportions of European         Whereas the proportions of European works
 works must be achieved taking economic          must be achieved taking economic realities
 realities into account; whereas, therefore, it  into account; whereas, therefore, it is
 is necessary to introduce a progressive         necessary to introduce a progressive system
 system for achieving this objective;            for achieving this objective;
 21. Whereas account should be taken of the      Whereas account should be taken of the
 specific nature of transmissions broadcast       specific nature of transmissions broadcast
 only in a language other than those of the       only in a language other than those of the
 Member States;                                   Member States;
 ---pagebreak--- 21(a)                                         Whereas, for the purposes of the
                                              implementation of the measures designed to
                                              promote works created bv producers who
                                              are independent of broadcasters, guideline
                                              criteria are needed whereby a producer may
                                              be deemed to be independent if :
                                              =    the broadcaster holds no more than 25%
                                                   of the share capital of the production
                                                   company (50% if more than one
                                                   television broadcaster is involved):
                                              =    over a three-vear period the producer
                                                   supplies to the same broadcaster no
                                                   more than 90% of the works produced,
                                                   unless, over the same period, the
                                                   producer makes only one programme or
                                                   only one series:
                                              =    the producer does not hold a significant
                                                   number of shares in a broadcaster:
21(b)                                         Whereas, in applying the above criteria, due
                                              account shall be taken of specific
                                              characteristics     of    Member       States'
                                              audiovisual systems, in particular those of
                                              Member States with a lesser audiovisual
                                              capacity or a limited language area:
21(c)                                         Whereas Member States may also take into
                                              account the destination and ownership of
                                              secondary rights when assessing the criteria
                                              of independence:
22. Whereas the question of specific time     Whereas the question of specific time scales
scales for each type of television showing    for each type of television showing of
of cinematographic works is primarily a       cinematographic works is primarily a matter
matter to be settled by individual contracts; to be settled by individual contracts;
whereas, however, in the absence of           whereas, however, in the absence of
agreements between the interested parties or  agreements between the interested parties or
professionals concerned, a schedule tailored   professionals concerned, a schedule tailored
to the needs at each stage in the showing of   to the needs at each stage in the showing of
such works, should be drawn up;                such works, should be drawn up;
 ---pagebreak--- 22(a)                                           Whereas transmission time allotted to
                                                announcements relating to programme
                                                schedules and derived products or to public
                                                service announcements and charity appeals
                                                broadcast free of charge is not to be
                                                included in the maximum amounts of daily
                                                or hourly transmission time that may be
                                                allotted to advertising and teleshopping:
23. Whereas, it is important to facilitate the  Whereas, in view of the development of
development of teleshopping, an activity        teleshopping, an activity with an economic
with an economic importance for operators       importance for operators as a whole and a
as a whole and a genuine outlet for goods       genuine outlet for goods and services within
and services within the Community, by           the Community, it is essential to modify the
modifying the rules on transmission time;       rules on transmission time and to ensure a
whereas, to ensure the full protection of       high level of consumer protection bv
consumer interests, teleshopping should be      putting in place appropriate standards
governed by a number of minimum                 regulating the form and content of
standards regulating the form and content of    broadcasts;
broadcasts;
24. Whereas it is necessary to clarify the       Whereas it is necessary to clarify the rules
rules for the protection of the physical,        for the protection of the physical, mental
mental and moral development of minors;          and moral development of minors, in
whereas the establishment of a clear            particular with regard to programmes which
distinction between programmes that are          might disturb them psychologically:
subject to an absolute ban and those that        whereas the establishment of a clear
may be authorized subject to appropriate         distinction between programmes that are
technical means should satisfy concern           subject to an absolute ban and those that
about the public interest expressed by           may be authorized subject to appropriate
Member States and the Community;                 protective measures of a technical nature or
                                                 regarding the time of the broadcast should
                                                 satisfy legitimate concerns;         whereas
                                                 moreover the latter programmes when
                                                 broadcast in unencoded form should be
                                                 identified through optical or acoustic means
                                                 regardless of the time of the broadcast:
                                               10
 ---pagebreak--- 24(a)   Whereas, since it appears possible to
        harmonize national rules on the protection
        of minors only to a limited extent owing to
        differences in sensibility and moral
        standards, the potentialities of technical
        filtering devices and appropriate rating
        systems at national and Community level,
        should be studied with a view to enabling
        parents and guardians to filter out
        programmes which might have a
        detrimental effect on the mental and
        physical development of minors: whereas
        such rating systems should involve as much
        as possible bodies consisting of experts
        (educationalists and media specialists') set
        up in association with the broadcasting and
        producing organisations themselves with
        appropriate support from the competent
        national and European authorities:
24b.    Whereas the Commission, in liaison with
        Member State authorities, should conduct
        an in-depth analysis of these issues and
        possible measures involving :
        -    the requirement for new television sets
             to be equipped with a technical device
             enabling parents or guardians to filter
             out certain programmes:
        i    the setting up of appropriate rating
             systems:
        z    encouraging family viewing policies:
        i    other educational and awareness
             measures
        with a view to presenting, if necessary
        before the deadline laid down in Article 26,
        the appropriate proposals for legislative or
        other measures.
      11
 ---pagebreak--- 25. Whereas the Court of Justice has                                  Whereas the approach in Directive
constantly held7 that the concept of                                  89/552/EEC and this Directive has been
services, as referred to in Articles 59 and                           adopted to achieve the essential
60 of the EEC Treaty, embraces the                                    harmonisation necessary and sufficient to
broadcasting of the television programmes,                            ensure the free circulation of television
including transmission through the                                    broadcasts in the Community will not be
intermediary of cable operators; whereas in                           restricted for reasons which fall within the
accordance with Article 3b of the Treaty                              coordinated fields: whereas Member States
action by the Community should not go                                 remain free to apply to broadcasters under
beyond what is necessary to achieve its                               their jurisdiction more detailed or stricter
objectives in the sphere of television                                rules in thesefields:these rules, which must
broadcasting; whereas the principle that                              be compatible with Community law7, may
Member States are free to lay down stricter                           concern, inter alia, the achievement of
or more detailed rules for the broadcasters                           language policy goals and the taking into
under their jurisdiction should be                                    account of the public interest in terms of
reaffirmed,                                                           television's role as a provider of
                                                                      information, education, culture and
                                                                      entertainment and the need to safeguard
                                                                      pluralism in the information industry and
                                                                      the media:
25a.                                                                  Whereas this Directive does not affect
                                                                      Member States' capacity to take measures in
                                                                      order to ensure the protection of
                                                                      competition with a view to avoiding the
                                                                      abuse of dominant positions and/or the
                                                                      establishment or strengthening of dominant
                                                                      positions bv mergers, agreements,
                                                                      acquisitions and similar initiatives:
26. Whereas Article B of the Treaty on                                Whereas Article B of the Treaty on
European Union states that one of the                                 European Union states that one of the
objectives the Union shall set itself is to                           objectives the Union shall set itself is to
maintain in full the "acquis                                          maintain in full the "acquis
communautaire",                                                       communautaire",
  7
    (initial proposal) See, in particular, the judgments in Case 155/73, Sacchi, [1974] ECR 409 and in Case 52/79, Procureur du Roi v
    Debauve. [1980] ECR 833.
  7
    (amended proposal) See the judgement in Case C-412/93, Leclerc-Siplec. [1995], ECR 1-179.
                                                                   12
 ---pagebreak--- HAVE ADOPTED THIS DIRECTIVE:                 HAVE ADOPTED THIS DIRECTIVE:
                  Article 1                                    Article 1
Directive   89/552/EEC is amended as Directive 89/552/EEC is amended as
follows:                                     follows:
1. Article 1 is amended as follows:           1. Article 1 is amended as follows:
(a) point (b) is replaced by the following:  (a) point (b) is replaced by the following:
                                             "(b)   "television programme" within the
                                                    meaning of paragraph (a) means an
                                                    animated or non-animated sequence
                                                    of images which may or mav not be
                                                    accompanied bv sound."
                                             (b) point (c) is replaced by the following :
                                              "(c)   "broadcaster" means the natural or
                                                     legal person who has editorial
                                                    responsibility for the composition of
                                                     schedules of television programmes
                                                     within the meaning of paragraph (b)
                                                     and who transmits them or has them
                                                     transmitted bv a third party."
                                            13
 ---pagebreak---                                                 (c) point (d) is replaced by the following :
"(b)   "television advertising" means any "(d)           "television advertising" means any
       form of announcement broadcast in                form of announcement broadcast,
       return for payment or for similar                whether in return for payment or for
       consideration by a public or private             similar consideration or for self-
       undertaking in connection with a                 promotional purposes, by a public or
       trade, business, craft or profession in          private undertaking in connection
       order to promote the supply of                   with trade, business, craft or
       goods or services, including                     profession in order to promote the
       immovable property, or rights and                supply of goods or services,
       obligations, in return for payment. It           including immovable property, or
       does not include teleshopping;"                  rights and obligations, in return for
                                                        payment;"
                                                 (d) point (c) in Article 1 of Directive
                                                     89/552/EEC becomes point (e)
                                                (e) point (d) in Article 1 of Directive
                                                     89/552/EEC becomes point (f)
(b) the following point (e) is added:            (f) the following point (g) is added :
"(e)    "teleshopping" means television "(g)             "teleshopping" means direct offers
        programmes and spots containing                  broadcast to the public with a view
        direct offers to the public with a              to the supply of goods or services,
        view to the sale, purchase or rental             including immovable property, or
        of products or with a view to the                rights and obligations, in return for
        supply of services in return for                 payment".
        payment;"
                                               14
 ---pagebreak--- 2. Article 2 is replaced by the following:     2. Article 2 is replaced by the following:
                  "Article 2                                    "Article 2
1. Each Member State shall ensure that all     1. Each Member State shall ensure that all
   television broadcasts transmitted by            television broadcasts transmitted by
   broadcasters under its jurisdiction             broadcasters under its jurisdiction
   comply with the rules of the system of          comply with the rules of the system of
   law applicable to broadcasts intended           law applicable to broadcasts intended
   for the public in that Member State.            for the public in that Member State.
2. The broadcasters under the jurisdiction 2. For the purpose of this directive the
   of a Member State are those established         broadcasters under the jurisdiction of a
   in the territory of that Member State, in       Member State are those established in
   which they must have a             fixed        the territory of that Member State
   establishment and actually pursue an            according to paragraph 3 as well as
   economic activity.                              those to whom paragraph 4 applies.
                                               3. For the purposes of this directive, a
                                                   broadcaster is deemed to be established
                                                   in a Member State in the following
                                                   cases :
                                               (a) the broadcaster has its head office in
                                                   that Member State and the editorial
                                                   decisions about programme schedules
                                                   are taken in that Member State's
                                                   territory:
                                             15
 ---pagebreak---                                              (b) if a broadcaster has its head office in
                                                 one Member State but editorial
                                                 decisions on programme schedules are
                                                 taken in another Member State, it shall
                                                 be deemed to be established in the
                                                 Member State where a significant part
                                                 of the workforce involved in the pursuit
                                                 of the television broadcasting activity
                                                 operates: if a significant part of the
                                                 workforce involved in the pursuit of the
                                                 television broadcasting activity operates
                                                 in each of those Member States, the
                                                 broadcaster shall be deemed to be
                                                 established in the Member State where
                                                 it has its head office: if a significant
                                                 part of the workforce involved in the
                                                 pursuit of the television broadcasting
                                                 activity operates in neither of those
                                                 Member States, the broadcaster shall be
                                                 deemed to be established in the
                                                 Member State where it first began
                                                 broadcasting in accordance with the
                                                 system of law of that Member State,
                                                 provided that it maintains a stable and
                                                 effective link with the economy of that
                                                 Member State:
                                             (ç) if a broadcaster has its head office in a
                                                 Member State but decisions on
                                                  programme schedules are taken in a
                                                  non-member state, or vice-versa, it shall
                                                  be deemed to be established in the
                                                  Member State concerned, provided that
                                                  a significant part of the workforce
                                                  involved in the pursuit of the television
                                                  broadcasting activity operates in that
                                                  Member State.
3. Broadcasters established outside the 4. Broadcasters which are not established
   territory of the Community shall also be       in the territory of a Member State
   under the jurisdiction of a Member             according to paragraph 3 are deemed to
   State if they satisfy one of the               be under the jurisdiction of a Member
   following conditions:                          State in the following cases :
                                            16
 ---pagebreak--- (a) they use a frequency granted by that        (a) they use a frequency granted by that
    Member State,                                   Member State,
(b) although they do not use a frequency (b) although they do not use a frequency
    granted by a Member State, they do use          granted by a Member State they do use
    a satellite capacity granted by that            a satellite capacity appertaining to that
    Member State,                                   Member State;
(c) although they use neither a frequency       (c) although they use neither a frequency
    nor a satellite capacity granted by a           granted by a Member State nor a
    Member State, they do use a satellite           satellite capacity appertaining to a
    up-link situated in that Member State.          Member State they do use a satellite
                                                    up-link situated in that Member State.
    This Directive shall not apply to           5. This Directive shall not apply to
    broadcasts intended exclusively for             broadcasts intended exclusively for
    reception in third countries, and which         reception in third countries, and which
    are not received directly or indirectly by      are not received directly or indirectly by
    the public in one or more Member                the public in one or more Member
     States."                                       States."
                                               17
 ---pagebreak--- 3. The following Article 2a is inserted:         3. The following Article 2a is inserted:
                   "Article 2a                                     "Article 2a
Member States shall ensure freedom of            Member States shall ensure freedom of
reception and shall not restrict                 reception and shall not restrict
retransmission on their territory of             retransmission on their territory of
television broadcasts from other Member          television broadcasts from other Member
States for reasons which fall within the         States for reasons which fall within the
fields coordinated by this Directive. They       fields coordinated by this Directive. They
may, provisionally, take appropriate             may, provisionally, derogate from the above
measures to restrict reception and/or            if the following conditions are fulfilled:
suspend retransmission of television
broadcasts if the following conditions are
fulfilled:
(a) a television broadcast coming from (a) a television broadcast coming from
     another Member State manifestly,                 another Member State manifestly,
     seriously and gravely infringes Article          seriously and gravely infringes Articles
     22 and/or Article 22a;                           22 or 22a;
(b) during the previous 12 months, the (b) during the previous 12 months, the
     broadcaster has infringed the same               broadcaster has infringed the same
     provision(s) on at least two prior               provisions) on at least two prior
     occasions;                                       occasions;
(c) the Member State concerned has (c) the Member State concerned has
     notified the broadcaster and the                 notified the broadcaster and the
     Commission in writing of the alleged             Commission in writing of the alleged
     infringements and of its intention to            infringements and of the measures it
     take measures to restrict reception              intends to take should any such
     and/or suspend retransmission should             infringement occur again;
     any such infringement occur again;
(d) consultations with the transmitting State (d) consultations with the transmitting State
     and the Commission have not produced             and the Commission have not produced
     an amicable settlement within 15 days            an amicable settlement withins 15 days
     of the notification provided for in point        of the notification provided for in point
     (c), and the alleged infringement                (c), and the alleged infringement
     persists.                                        persists.
                                               18
 ---pagebreak--- The Commission shall, within no more than         The Commission shall, within no more than
two months following notification of the          two months following notification of the
measure taken by the Member State, take a         measure taken by the Member State, take a
decision on whether the measure is                decision on whether the measure is
compatible with Community law. If it              compatible with Community law. If it
decides that it is not, the Member State will     decides that it is not, the Member State will
be required to put an end to the measure in       be required to put an end to the measure in
question as a matter of urgency.                  question as a matter of urgency.
The provision referred to in the first            The provision referred to in the first
paragraph is without prejudice to the             paragraph is without prejudice to the
application of any procedure, remedy or           application of any procedure, remedy or
sanction to the infringements in question in      sanction to the infringements in question in
the Member State which has jurisdiction           the Member State which has jurisdiction
over the broadcaster concerned."                  over the broadcaster concerned."
4. Article 3 is replaced by the following:        4. Article 3 is replaced by the following:
                   "Article 3                                        "Article 3
1. Member States shall remain free to             1. Member States shall remain free to
    require television broadcasters under             require television broadcasters under
    their jurisdiction to comply with more            their jurisdiction to comply with more
    detailed or stricter rules in the areas           detailed or stricter rules in the areas
    covered by this Directive. These rules,           covered by this Directive.
    which must be compatible with
    Community law, may concern, inter
    alia:
    the achievement of language policy
    goals;
    the taking into account of the public
    interest in terms of television's role as a
    provider of information, education,
    culture and entertainment and the need
    to safeguard         pluralism in the
    information industry and the media.
                                                19
 ---pagebreak--- 2. Member States shall, by appropriate              Member States shall, by appropriate
    means, ensure, .within the framework of         means, ensure, within the framework of
    their legislation, that television              their legislation, that television
    broadcasters under their jurisdiction           broadcasters under their jurisdiction
    comply with the provisions of this              effectively comply with the provisions
    Directive.                                      of this Directive.
    Each Member State shall determine the           The measures shall include the
    penalties applicable to television              appropriate procedures for third parties
    broadcasting organizations under their          directly affected, including nationals of
    jurisdiction who do not comply with             other Member States, to apply to the
    provisions adopted for                 the      competent judicial or other authorities
    implementation of this Directive, which         to seek effective compliance according
    penalties shall be sufficient to enforce        to national provisions."
    compliance.
3. Member States shall also provide in
    their legislation, as regards television
    broadcasting organizations under their
    jurisdiction, for the possibility of
     invoking interim measures aimed at
    remedying an infringement of the
    provisions of this Directive, if necessary
    by suspending the broadcasting
     licence."
5. Article 4 is replaced by the following:       5. Article 4 is replaced by the following:
                  "Article 4                                      "Article 4
 1. Member States shall, by appropriate          1. Member States shall, by appropriate
     means, ensure that broadcasters reserve         means, ensure that broadcasters reserve
     for European works, within the meaning          for European works, within the meaning
     of Article 6, a majority proportion of          of Article 6, a majority proportion of
     their transmission time, excluding the          their transmission time, excluding the
     time appointed to news, sports events,          time appointed to news, sports events,
     games, advertising, teletext and                games, advertising, teletext and
     teleshopping services.                          teleshopping services.
                                               20
 ---pagebreak--- In the case of channels which devote at      In the case of channels which devote at
least 80% of their transmission time,        least 80% of their transmission time,
excluding the time appointed to              excluding the time appointed to
advertising and teleshopping, to             advertising and teleshopping, to
cinematographic works, drama,                cinematographic works, drama,
documentaries or animation,                  documentaries or animation,
Member States shall allow television         Member States shall allow television
broadcasting organizations to choose         broadcasting organizations to choose
between complying with the first             between complying with the first
paragraph or allocating 25% of their         paragraph or allocating 25% of their
programming budget to European works         programming budget to European works
within the meaning of Article 6. For the     within the meaning of Article 6. For the
purposes of this Directive,                  purposes of this Directive,
"programming budget" means the               "programming budget" means the
accounting cost of acquiring,                accounting cost of acquiring,
commissioning, producing             and     commissioning, producing             and
co-producing all those programmes            co-producing all those programmes
broadcast by the channel in question in      broadcast by the channel in question in
any given year.                              any given year. .
The proportions referred to in               The proportions referred to in
paragraphs 1 and 2 shall be attained         paragraphs 1 and 2 shall be attained
progressively, in stages, no later than      progressively, in stages, no later than
three years after the date of the first      three years after the date of the first
broadcast by the channel in question.        broadcast by the channel in question.
Channels broadcasting entirely in a          Channels broadcasting entirely in a
language other than those of the             language other than those of the
Member States are not covered by the         Member States are not covered by the
provisions of this Article or those of       provisions of this Article or those of
Article 5.                                   Article 5.
Member States shall provide the              Member States shall provide the
Commission with a report on the              Commission with a report on the
application of this Article and Article 5    application of this Article and Article 5
every two years from the date of             every two years from the date of
adoption of this Directive.                  adoption of this Directive.
                                          21
 ---pagebreak--- That report shall in particular include a    That report shall in particular include a
statistical statement on the achievement     statistical statement on the achievement
of the proportion referred to in this        of the proportion referred to in this
Article and Article 5 for each of the        Article and Article 5 for each of the
channels falling within the jurisdiction     channels falling within the jurisdiction
of the Member State concerned.               of the Member State concerned.
Member States shall notify the               Member States shall notify the
Commission of the reasons for the            Commission of the reasons for the
failure to attain those proportions and      failure to attain those proportions and
the measures they are taking in each         the measures they are taking in each
case to ensure that the television           case to ensure that the television
broadcasting organization does actually      broadcasting organization does actually
attain them.                                 attain them.
The Commission shall inform the other        The Commission shall inform the other
Member           States      and     the     Member           States      and     the
European Parliament of the reports,          European Parliament of the reports,
which shall be accompanied, where            which shall be accompanied, where
appropriate, by an opinion. The              appropriate, by an opinion. The
Commission shall ensure the application      Commission shall ensure the application
of this Article and Article 5 in             of this Article and Article 5 in
accordance with the provisions of the        accordance with the provisions of the
Treaty. The Commission may take              Treaty. The Commission may take
account in its opinion, in particular, of    account in its opinion, in particular, of
progress achieved in relation to             progress achieved in relation to
previous years, the share of first           previous years, the share of first
broadcast works in the programming,          broadcast works in the programming,
the particular circumstances of new          the particular circumstances of new
television broadcasters and the specific     television broadcasters and the specific
situation of countries with a low            situation of countries with a low
audiovisual production capacity or           audiovisual production capacity or
restricted language area."                   restricted language area."
                                          22
 ---pagebreak--- 6. Article 5 is replaced by the following:     6. Article 5 is replaced by the following:
                  "Article 5                                     "Article 5
Member States shall ensure, by appropriate     Member States shall ensure, by appropriate
means, that broadcasters reserve at least      means, that broadcasters reserve at least
10% of their transmission time, excluding      10% of their transmission time, excluding
the time appointed to news, sports events,     the time appointed to news, sports events,
games, advertising, teleshopping and           games, advertising, teleshopping and
teletext services, or alternately, at the      teletext services, or alternately, at the
discretion of the Member States, at least      discretion of the Member States, at least
10% of their programming budget, for           10% of their programming budget, for
European works created by producers who        European works created by producers who
are independent of broadcasters.               are independent of broadcasters.
This proportion must be achieved by            This proportion must be achieved by
earmarking at least 50% for recent works,      earmarking at least 50% for recent works,
that is to say works transmitted within five   that is to say works transmitted within five
years of their production."                    years of their production."
7. Article 6 is amended as follows:            7. Article 6 is amended as follows:
(a) in paragraph 1, point (a) is replaced by   (a) in paragraph 1, point (a) is replaced by
     the following:                                 the following:
"(a)     works originating from Member         "(a)     works originating from Member
         States"                                        States"
                                                    and a new point (d) is added:
                                               "(d)     the application of the provisions of
                                                        paragraphs (b) and (c) is conditional
                                                        on works originating from Member
                                                        States not being the subject of
                                                        discriminatory measures in the third
                                                        countries concerned. "
                                             23
 ---pagebreak--- (b) paragraph 3        is  replaced   by   the (b) paragraph 3         is replaced    by   the
     following:                                      following:
 '3. The works referred to in point (c) of "3. The works referred to in point (c) of
     paragraph 1 are works made exclusively          paragraph 1 are works made exclusively
     or in co-production with producers              or in co-production with producers
     established in one or more Member               established in one or more Member
     States by producers established in one          States by producers established in one
     or more European third countries with           or more European third countries with
     which the Community has concluded               which the Community has concluded
     agreements relating to the audiovisual          agreements relating to the audiovisual
     sector, if those works are mainly made          sector, if those works are mainly made
     with authors and workers residing in            with authors and workers residing in
     one or more European States."                   one or more European States."
(c) the following paragraph 3a is inserted:      (c) the following paragraph 3a is inserted:
"3a.     Works that are not European works "3a.          Works that are not European works
         within the meaning of paragraph 1               within the meaning of paragraph 1
         but that are produced within the                but that are produced within the
         framework of bilateral co-production            framework of bilateral co-production
         treaties concluded between Member               treaties concluded between Member
         States and third countries shall be             States and third countries shall be
         deemed to be European works                     deemed to be European works
         provided that the Community co-                 provided that the Community co-
         producers supply a majority share of            producers supply a majority share of
         the total cost of the production and            the total cost of the production and
         that the production is not controlled           that the production is not controlled
         by one or more producers                        by one or more producers
         established outside the territory of            established outside the territory of
         the Member States."                             the Member States."
(d) in paragraph 4, the words "and (d) in paragraph 4, the words "and
     paragraph 3a" are added after the words         paragraph 3 a" are added after the words
     "within the meaning of paragraph 1";            "within the meaning of paragraph 1";
                                               24
 ---pagebreak--- 8. Article 7 is replaced by the following:   8. Article 7 is replaced by the following:
                  "Article 7                                    "Article 7
Rightsholders and broadcasters shall agree   Unless otherwise agreed between
time limits for              broadcasting    rightholders and broadcasters, the latter
cinematographic works. In the absence of      shall not broadcast any cinematographic
such agreements, television broadcasting     work until eighteen months have elapsed
organizations shall not broadcast any         since the work was first shown in cinemas
cinematographic work until the following     in one of the Member States.
periods have elapsed since the work was
first shown in cinemas in one of the         This period shall be reduced to twelve
Member States:                               months :
(a) six months for pay-per-view services;     (a) for pav-per-view and pay-television
                                                   channels;
(b) twelve months for pay-television (b) in the case of cinematographic works
     services other than those referred to         co-produced bv the broadcaster."
     in (a);
(c) eighteen months for services other than
     those referred to in (a) and (b).
Member States shall ensure that the
television broadcasting organizations under
their jurisdiction comply with these
provisions."
9. Article 8 is deleted.                      9. Article 8 is deleted.
                                              9a. Article 9 is replaced by the following :
                                                                 "Article 9
                                              This chapter shall not apply to television
                                              broadcasts intended for local audiences and
                                              that do not form part of a national
                                               network."
 10. The title of Chapter IV is replaced by    10. The title of Chapter IV is replaced by
      the following:                                the following:
 "Television advertising and sponsorship, "Television advertising, sponsorship and
 and teleshopping"                             teleshopping"
                                            25
 ---pagebreak---                                              10a.     Article 10 is replaced by the
                                                      following:
                                                               "Article 10
                                             1. Television advertising and teleshopping
                                                 shall be readily recognizable as such
                                                 and kept quite separate from other parts
                                                 of the programme service by optical
                                                 and/or acoustic means.
                                             2. Isolated advertising spots and
                                                 teleshopping spots shall remain the
                                                 exception.
                                             3. Advertising and teleshopping shall not
                                                 use subliminal techniques.
                                             4. Surreptitious advertising and
                                                 teleshopping shall be prohibited."
11. In Article 11, paragraph 3 is replaced
    by the following:                        11. Article 11 is replaced by the following:
                                                               "Article 11
                                             "1. Advertisements and teleshopping shall
                                                 be inserted between other programmes.
                                                 Provided the conditions contained in
                                                 paragraph 2 to 5 of this Article are
                                                 fulfilled,      advertisements       and
                                                 teleshopping may also be inserted
                                                 during programmes in such a way that
                                                 the integrity and value of the
                                                 programme, taking into account natural
                                                 breaks in and the duration and nature of
                                                 the programme, and the rights of the
                                                 rightsholders are not prejudiced."
                                             2. In programmes consisting of
                                                  autonomous parts, or in sports
                                                  programmes and similarly structured
                                                  events and performances comprising
                                                  intervals, advertisements and
                                                  teleshopping shall only be inserted
                                                  between the parts or in the intervals."
                                           26
 ---pagebreak--- "3. The transmission of feature films may 3. The transmission of audiovisual works
    be interrupted once for each complete        such as feature films and films made
    period of 45 minutes. A further              for television (excluding series, serials,
    interruption is allowed if their             light entertainment programmes and
    scheduled duration is at least 20            documentaries) provided their scheduled
    minutes longer than two or more              duration is more that 45 minutes, may
    complete periods of 45 minutes."           '-be  interrupted once for each period of
                                                 45 minutes. A further interruption is
                                                 allowed if their scheduled duration is at
                                                 least 20 minutes longer than two or
                                                 more complete periods of 45 minutes.
                                            4. Where programmes, other than those
                                                 covered by paragraph 2, are interrupted
                                                 by advertisements or teleshopping spots,
                                                 a period of at least 20 minutes should
                                                 elapse between each successive
                                                 advertising break within the programme.
                                            5. Advertisements and teleshopping shall
                                                 not be inserted in any broadcast of a
                                                 religious service. News and current
                                                 affairs programmes, documentaries,
                                                 religious programmes, and children's
                                                 programmes shall not be interrupted by
                                                  advertisements or by teleshopping when
                                                 their scheduled duration is less than 30
                                                  minutes. If their scheduled duration is
                                                  of 30 minutes or longer, the provisions
                                                  of the paragraphs 1 to 4 shall apply."
 12. In Article 12, the introductory words   12. In Article 12, the introductory words
     are replaced by the following:               are replaced by the following:
 "Television advertising and teleshopping "Television advertising and teleshopping
 shall not:"                                 shall not:"
                                             and paragraph (c) is replaced by the
                                             following :
                                             "(c)     be offensive to religious,
                                                      philosophical or political beliefs;"
                                           27
 ---pagebreak--- 13. Articles 13 and 14 are replaced by the      13. Articles 13 and 14 are replaced by the
     following:                                      following:
                      "Article 13                                 "Article 13
All forms of television advertising and All forms of television advertising and
teleshopping for cigarettes and other teleshopping for cigarettes and other
tobacco products shall be prohibited.           tobacco products shall be prohibited.
                       Article 14                                 "Article 14
Television advertising and teleshopping for     1. Television advertising for medicinal
medicinal products and medical treatment             products and medical treatment
available only on prescription in the                available only on prescription in the
Member State within whose jurisdiction the           Member State within whose jurisdiction
broadcaster falls shall be prohibited."              the broadcaster falls shall be prohibited.
                                                     Teleshopping for medicinal products
                                                     and medical treatment which are subject
                                                     to a marketing authorization within the
                                                     meaning of Directive 65/65/EEC8 as last
                                                     amended bv Directive 89/343/EEC9
                                                     shall be prohibited ."
 14. Article 15 is amended as follows:           14. Article 15 is amended as follows:
(a) The introductory words are replaced by (a) The introductory words are replaced by
     the following:                                  the following:
     "Television advertising and teleshopping         "Television advertising and teleshopping
     for alcoholic beverages shall comply            for alcoholic beverages shall comply
     with the following criteria:"                   with the following criteria:"
    OJ no.L22, 9.2.1965, p. 369
    OJ no. L142, 25.5.1989, p. 14
                                              28
 ---pagebreak--- (b) Points (a) to (f) are replaced by the (b) Points (a) to (f) are replaced by the
     following:                                   following:
"(a)     they may not be aimed specifically "(a)      they may not be aimed specifically
         at minors or, in particular, depict          at minors or, in particular, depict
         minors consuming such beverages;             minors consuming such beverages;
(b) they shall not link the consumption of (b) they shall not link the consumption of
     alcohol to enhanced physical                 alcohol to enhanced physical
     performance or to driving;                   performance or to driving;
(c) they shall not create the impression that (c) they shall not create the impression that
     the consumption of alcohol contributes       the consumption of alcohol contributes
     towards social or sexual success;            towards social or sexual success;
(d) they shall not claim that alcohol has (d) they shall not claim that alcohol has
     therapeutic qualities or that it is a        therapeutic qualities or that it is a
     stimulant, a sedative or a means of          stimulant, a sedative or a means of
     resolving personal conflicts;                resolving personal conflicts;
(e) they shall not encourage immoderate (e) they shall not encourage immoderate
     consumption of alcohol or present            consumption of alcohol or present
     abstinence or moderation in a negative       abstinence or moderation in a negative
     light;                                       light;
(f) they shall not place emphasis on high (f) they shall not place emphasis on high
     alcoholic content as being a positive        alcoholic content as being a positive
     quality of the beverages."                   quality of the beverages."
                                             29
 ---pagebreak--- 15. Article 16 is amended as follows:           15. Article 16 is amended as follows:
(a) The introductory words are replaced by (a) The introductory words are replaced by
     the following:                                 the following:
     "Television advertising and teleshopping       "Television advertising and teleshopping
     shall not cause moral or physical              shall not cause moral or physical
     detriment to minors and shall therefore        detriment to minors and shall therefore
     comply with the following criteria for         comply with the following criteria for
     their protection:"                             their protection:"
(b) Points (a) to (d) are replaced by the (b) Points (a) to (d) are replaced by the
     following:                                     following:
"(a)     they shall not directly exhort minors "(a)     they shall not directly exhort minors
         to buy a product or a service by               to buy a product or a service by
         exploiting their inexperience or               exploiting their inexperience or
         credulity;                                     credulity;
(b) they shall not directly encourage minors (b) they shall not directly encourage minors
     to persuade their parents or others to         to persuade their parents or others to
     purchase the goods or services being           purchase the goods or services being
     advertised;                                    advertised;
(c) they shall not exploit the special trust (c) they shall not exploit the special trust
     minors place in parents, teachers or           minors place in parents, teachers or
     other persons;                                 other persons;
(d) they shall not unreasonably show (d) they shall not unreasonably show
     minors in dangerous situations."               minors in dangerous situations."
                                              30
 ---pagebreak--- 16. Article 17(2) is replaced by the            16. Article 17(2) is replaced by the
    following:                                      following:
"2. Television programmes may not be "2. Television programmes may not be
    sponsored by natural or legal persons           sponsored by undertakings whose
    whose principal activity is the                 principal activity is the manufacture or
    manufacture or sale of products, or the         sale of cigarettes and other tobacco
    provision of services, the advertising of       products.
    which is prohibited by Article 13."
                                                2a. Sponsorship of television programmes
                                                    by undertakings whose activities include
                                                    the manufacture or sale of medical
                                                    products and medical treatment may
                                                    promote the name or the image of the
                                                    undertaking and may not promote
                                                    specific medical products or medical
                                                    treatments only available on
                                                    prescription."
17. Article 18 is replaced by the following:    17. Article 18 is replaced by the following:
                 "Article 18                                     "Article 18
1. The amount of advertising shall not 1. The amount of transmission time of
    exceed 15% of the daily transmission            teleshopping spots, advertising spots
    time. However, this percentage may be           and other means of advertising, with the
    increased to 20% if it includes forms of        exception of teleshopping windows in
    advertising other than advertising spots        the sense of article 18a shall not exceed
    and/or teleshopping spots inserted in a         20% of the daily transmission time.
    service that is not exclusively devoted         The transmission time for advertising
    to teleshopping, on condition that the          spots shall not exceed 15% of the daily
    amount of spot advertising does not             transmission time.
    exceed 15%.
2. The amount of spot advertising within a 2        The amount of advertising spots and
    given clock hour shall not exceed 20%."         teleshopping spots within a given clock
                                                    hour shall not exceed 20%.
                                                3. For the purposes of this article,
                                                     advertising does not include
                                                     announcements made bv the broadcaster
                                                     in connection with its own
                                                     programmes."
                                              31
 ---pagebreak--- 18. The following Articles 18a and 18b are       18. The following Article 18a is inserted :
    inserted:
                 "Article 18a                                     "Article 18a
    Teleshopping programmes and spots                 Windows devoted to teleshopping
    must be easily identifiable as such and           broadcast bv a channel not exclusively
    if they are inserted in a service that is         devoted to teleshopping shall be of a
    not exclusively devoted to this activity          minimum uninterrupted duration of 15
    they must be clearly distinguished from           minutes. Their overall duration shall
    that service's other broadcasts, including        not exceed three hours per day. They
    advertising broadcasts, by optical or             must be clearly identified as
    acoustic means.                                   teleshopping windows by optical and/or
                                                      acoustic means."
2. Teleshopping programmes and spots
    must comply with the provisions of
    Council Directive [concerning consumer
    protection with regard to distance
    selling]10, and in particular with those
    provisions that relate to information on
    contractual obligations.
                  Article 18b
1. Windows devoted to teleshopping and
    inserted in a service not exclusively
    devoted to this activity shall not exceed
    three hours in any twenty-four-hour
    period.
2. Services devoted exclusively to
    teleshopping shall not be subject to any
    scheduling restrictions as regards time-
    limits."
19. Article 19 is deleted.                        19. Article 19 is replaced by the
                                                      following:
                                                                   "Article 19
                                                 Articles 18 and 18a shall not apply to
                                                 channels exclusively devoted to
                                                 advertising and/or teleshopping."
       OJNoL
                                               32
 ---pagebreak--- 20. Article 20 is replaced by the following:   20. Article 20 is replaced by the following:
                 "Article 20                                    "Article 20
Without prejudice to Article 3, Member Without prejudice to Article 3, Member
States may, with due regard for Community States may, with due regard for Community
law, lay down conditions other than those law, lay down conditions other than those
laid down in Article 11(2) to (5) and laid down in Article 11(2) to (5) and
Articles 18 and 18b in respect of broadcasts Articles 18 and 18a in respect of broadcasts
intended solely for the national territory intended for local audiences which cannot
which cannot be received, directly or be received, directly or indirectly by the
indirectly, in one or more other Member public, in one or more other Member
States."                                       States."
21. Article 21 is deleted.                     21. Article 21 is deleted.
22. The title of Chapter V is replaced by      22. The title of Chapter V is replaced by
    the following:                                 the following:
"Protection of minors and public morality"     "Protection of minors and public order"
23. Article 22 is replaced by the following:
                 "Article 22                                    "Article 22
 1. Member States shall take appropriate       1,  Member States shall take appropriate
    measures to ensure that television             measures to ensure that television
    broadcasts, including trailers, by             broadcasts by broadcasters under their
    broadcasters under their jurisdiction do       jurisdiction do not include any
    not include programmes which might             programmes, which might seriously
    seriously impair the physical, mental or       impair the physical, mental or moral
    moral development of minors, in                development of minors, in particular
    particular those that           involve        those that involve pornography or
    pornography or gratuitous violence.            gratuitous violence.
                                             33
 ---pagebreak---     The measures provided for in paragraph 2. The measures provided for in paragraph
    1 shall also extend to other programmes         1 shall also extend to other programmes
    which are likely to impair the physical,        which are likely to impair the physical,
    mental or moral development of minors,          mental or moral development of minors,
    except where it is ensured, by selecting        except where it is ensured, by selecting
    the time of the broadcast or by any             the time of the broadcast or by any
    technical measure, that minors in the           technical measure, that minors in the
    area of transmission will not normally          area of transmission will not normally
    hear or see such broadcasts."                   hear or see such broadcasts.
                                                    Furthermore, when such programmes
                                                    are broadcast in unencoded form
                                                    Member States shall ensure that thev
                                                    are preceded bv an acoustic warning or
                                                    are identified bv the presence of a
                                                    visual symbol throughout their duration.
24. The following Articles 22a and 22b are The following Articles 22a and 22b are
    inserted:                                   inserted:
                 "Article 22a                                    "Article 22a
Member States shall ensure that broadcasts Member States shall ensure that broadcasts
do not contain any incitement to hatred on do not contain any incitement to hatred on
grounds of race, sex, religion or nationality. grounds of race, sex, religion or nationality.
                 Article 22b                                     Article 22b
The Commission shall attach particular          1. The Commission shall attach particular
importance to application of this chapter in        importance to application of this chapter
the report provided for in Article 26."             in the report provided for in Article 26.
                                                2. The Commission shall, in liaison with
                                                    the competent Member State authorities,
                                                    carry out an investigation of the
                                                    possible advantages and drawbacks of
                                                    further measures       with a view to
                                                    facilitating the control exercised by
                                                    parents or guardians over the
                                                    programmes that minors may watch.
                                              34
 ---pagebreak---   24a. In Article 23, paragraph 1 is replaced
  by the following:
  "1. Without prejudice to other provisions
  adopted by the Member States under civil,
  administrative or criminal law, any natural
  or legal person, regardless of nationality,
  whose legitimate interests, in particular
  reputation and good name, have been
  damaged by an incorrect assertion in a
  television programme must have a right of
  reply or equivalent remedies. Member
  States shall ensure that the actual exercise
  of the right of reply is not hindered by the
  imposition of unreasonable terms or
  conditions. The reply shall be transmitted
  within a reasonable time subsequent to the
  request, in conditions as similar as possible
  to those of the broadcast the request refers
  to.
  25. Article 25 is deleted.
  26. Article 26 is replaced by the following:
                   "Article 26
  Not later than the end of the third year after
  the date of the adoption of this Directive
  and every two years thereafter, the
  Commission shall submit to the European
  Parliament, the Council and the Economic
  and Social Committee a report on the
  application of this Directive and, if
  necessary, make further proposals to adapt
  it to developments in the field of television
  broadcasting, in particular in the light of
  technological developments since its
  adoption."
35
 ---pagebreak---                   Article 2                                       Article 2
1. Member States shall bring into force 1. Member States shall bring into force
    the laws, regulations and administrative        the laws, regulations and administrative
    provisions necessary to comply with             provisions necessary to comply with
    this Directive not later than one year          this Directive not later than one year
    after the date of its adoption. They            after the date of its adoption. They
    shall immediately inform the                    shall immediately inform the
    Commission thereof.                             Commission thereof.
    When Member States adopt these                  When Member States adopt these
    provisions, these shall contain a               provisions, these shall contain a
    reference to this Directive or shall be         reference to this Directive or shall be
    accompanied by such reference at the            accompanied by such reference at the
    time of their official publication. The         time of their official publication. The
    procedure for such reference shall be           procedure for such reference shall be
    adopted by Member States.                       adopted by Member States.
2. Member States shall communicate to               Member States shall communicate to
    the Commission the text of the main             the Commission the text of the main
    provisions of national law which they           provisions of national law which they
    adopt in the field covered by this              adopt in the field covered by this
    Directive.                                      Directive.
                  Article 3                                       Article 3
This Directive shall enter into force on the    This Directive shall enter into force on the
twentieth day following that of its             twentieth day following that of its
publication in the Official Journal of the      publication in the Official Journal of the
European Communities.                           European Communities.
Article 1 point 5 shall be effectively applied Article 1 point 5 shall be effectively applied
for a period of ten years from the date of for a period of ten years from the date of
entry into force of this Directive.             entry into force of this Directive.
                  Article 4                                       Article 4
This Directive is addressed to the Member This Directive is addressed to the Member
States.                                         States.
                                              36
 ---pagebreak---                                                                     ISSN 0254-1475
                                                             COM(96) 200 final
                                              DOCUMENTS
EN                                                                             16
                                     Catalogue number : CB-CO-96-210-EN-C
                                                              ISBN 92-78-03593-9
Office for Official Publications of the European Communities
L-2985 Luxembourg
                                            "3 }