CELEX: 51996PC0626
Language: en
Date: 1996-12-04
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, 04.12.1996
                                                   COM(96) 626 final
                                                   95/0074 (COD)
                         OPINION OF THE COMMISSION
                pursuant to Article 189 b (2) (d) of the EC Treaty,
                      on the European Parliament's amendments
                  to the Council's common position regarding the
                                    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
             AMENDING THE PROPOSAL OF THE COMMISSION
                   pursuant to Article 189 a (2) of the EC Treaty
 ---pagebreak---  ---pagebreak---                                  EXPLANATORY MEMORANDUM
L       The 19R9 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).
Z       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 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 at the beginning of 1997).
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
        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)
     2  Council Directive 93/83/EEC (OJ L248, p. 15, 06.10.1993).
         See also the recent "Green Paper on the legal protection of encrypted signals" COM(96)76
     3
        OJ C185, p. 4, 19.07.1995
     4
        OJ C065, p.61, 04.03.1996
                                                    e
 ---pagebreak--- subject to the amendments it had made.
The Commission accordingly adopted an amended proposal incorporating inter alia those
parliamentary amendments it had accepted in Plenary5.
The Council adopted its Common Position on 8.07.1996. This was transmitted to Parliament
at the same time as the Commission's Communication on the Common Position in accordance
with the second sub-paragraph of Article 189b(2) of the EC Treaty6.
The Parliament adopted on 12.11.1996 a decision amending the Common Position "with a
view to the adoption of a European Parliament and Council Directive amending Council
Directive 89/552/EEC"7.
it      The Commissions Opinion
The Commission is required at this stage to deliver an Opinion pursuant to Article 189b(2)(d)
of the EC Treaty. This is the purpose of the present document, which constitutes a new
amended proposal, based on the Common Position (accepted by the Commission), and which
incorporates those amendments adopted by Parliament on which the Commission has a
positive opinion (presented in the right hand column in the following pages). Certain
amendments have been re-drafted and/or re-numbered where the Commission considers this
necessary. The reasons for the Commission's position are explained in the comments section
below each amendment.
4j_     Conclusion
The Commission hereby submits to the European Parliament and Council its Opinion pursuant
to Article 189b(2)(d) of the EC Treaty constituting its amended proposal pursuant to Article
189a(2) of the EC Treaty.
        COM(96)200 final of 07.05.1996
        OJC222, p.10, 30.07.1996
     6
        SEC(96)1292 final, 11.07.1996
     7
        EP 253.831
                                                 3
 ---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
            (presented by the Commission pursuant to Article 189 a (2)
                                of the EC-Treaty)
                                                 LI
 ---pagebreak---                                      Amendment 1
                                    Recital 5a (new)
     Common Position of the Council                        Amended Proposal
                                               (5a) Whereas the Commission has submitted
                                               a Green Paper on Protection of Minors and
                                               of Human Dignity in new audiovisual and
                                               information services and has undertaken to
                                               submit a Green Paper focusing on
                                               developing the cultural aspects of new
                                               services;
Comment : the wording has been adapted to take account of the adoption by the Commission
on 16 October 1996 of the first Green Paper. The Commission accepts this purely factual
amendment, but would point out that, strictly speaking, it is out of place in a legal text.
                                                  S~
 ---pagebreak---                                       Amendment 2
                                         Recital 6
      Common Position of the Council                        Amended Proposal
  (6) Whereas any legislative framework        (6) Whereas any legislative framework
 concerning new audiovisual services must      concerning new audiovisual services must
 be compatible with the primary objective of   include arrangements which are in line with
 this Directive which is to create the legal   the spirit and objectives of this Directive:
  framework for the free movement of
  services:
Comment : Numbered 5b in Parliament's amendment, in fact corresponds to recital n° 6 in
the Common Position
                                              C
 ---pagebreak---                                    Amendment 3
                                  Recital 6a (new)
   Common Position of the Council                       Amended Proposal
                                           (6a) Whereas, however, pending the
                                            introduction of a comprehensive European
                                            legal framework for the new services, the
                                           Member States should take action with
                                           regard to services comparable to television
                                           broadcasting in order to prevent any breach
                                           of the fundamental principles which must
                                            govern information and the emergence of
                                           wide disparities as regards free movement
                                           and competition;
Comment : Slight drafting change to Parliament's amendment, for legal reasons.
                                   3
 ---pagebreak---                             Amendment 4
                          Recital 19a (new)
Common Position of the Council                  Amended Proposal
                                    (19a) Whereas, with a view to promoting
                                    the production of European works according
                                    to the objectives of the MEDIA programme,
                                    the Community should provide appropriate
                                    financial support to particular artistic works,
                                    including those realized by independent
                                    producers and to co-production works with
                                    producers established in two or more
                                    Member States;
                                   %
 ---pagebreak---                                         Amendment 5
                                          Recital 21
     Common Position of the Council                         Amended Proposal
(21) Whereas, in addition to the                (21) Whereas, in addition to the
considerations cited above, it is necessary to  considerations cited above, it is necessary to
create conditions for improving the             create conditions for improving the
competitiveness of the programme industry;      competitiveness of the programme industry;
whereas the Communication on the                whereas the communications 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) of     on 3 March 1994 and 15 July 1996
that Directive, draws the conclusion that       pursuant to Article 4(3) of that Directive,
measures to promote European works can          draw the conclusion that measures to
contribute to such an improvement;              promote European works can contribute to
                                                such an improvement but that they need to
                                                take account of developments in the field of
                                                TV broadcasting;
                                                 3
 ---pagebreak---                                     Amendment 6
                                  Recital 20a (new)
     Common Position of the Council                      Amended Proposal
                                            (20a) Whereas the production and
                                            distribution of European works should also
                                            be promoted by a Guarantee Fund;
Comment : numbering change (recital 20a instead of 22a) in order to align with numbering
in Common Position
                                        A
 ---pagebreak---                                   Amendment 7
                                Recital 22a (new)
    Common Position of the Council                       Amended Proposal
                                           (22a) Whereas for the purposes of the
                                           implementation of the measures designed to
                                           promote works created by 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
                                                    20% of the share capital of the
                                                   production company (50% if more
                                                   than one television broadcaster is
                                                    involved);
                                                    over a three-year 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,
                                                    except where the broadcaster is
                                                   predominantly using a minority
                                                    language in the Member State
                                                    concerned;
                                                    the producer does not hold a
                                                    significant number of shares in a
                                                    broadcaster;
Comment : Numbering change (22a instead of 22b)
                                  14
 ---pagebreak---                                 Amendment 8
                              Recital 22b (new)
   Common Position of the Council                   Amended Proposal
                                        (22b) Whereas Member States shall also
                                        take into account the destination and
                                        ownership of secondary rights when
                                        assessing the criteria of independence:
Comment : Numbering change (22b instead of 22c)
                                   4 4
 ---pagebreak---                               Consequence of Amendment 29
                                        Recital 23
      Common Position of the Council                      Amended Proposal
 (23) Whereas the question of specific time   (23) Whereas the question of specific time
 scales for each type of television showing   scales for each type of television showing
 of cinematographic works is primarily a      of cinematographic works is primarily a
 matter to be settled by means of agreements  matter to be settled by means of agreements
 between the interested parties or            between the interested parties or
 professionals concerned; whereas, however,   professionals concerned;
 in the absence of such agreements, a
 schedule for the showing of such works       (deletion)
 should be drawn up;
Comment : Deletion of second part as a consequence of Amendment 29 (Article 7)
                                               U
 ---pagebreak---                                         Amendment 9
                                         Recital 35
     Common Position of the Council                          Amended Proposal
(35) Whereas the approach in Directive         (35) Whereas the approach in Directive
89/552/EEC and this Directive has been         89/552/EEC and this Directive has been
adopted to achieve the essential               adopted to achieve the essential
harmonization necessary and sufficient to      harmonization necessary and sufficient to
ensure the free movement of television         ensure the free movement of television
broadcasts in the Community; whereas           broadcasts in the Community; whereas
Member States remain free to apply to          Member States remain free to apply to
broadcasters under their jurisdiction more     broadcasters under their jurisdiction more
detailed or stricter rules in the fields       detailed or stricter rules in the fields
coordinated by this Directive, including,      coordinated by this Directive, including,
inter alia, rules concerning the achievement    inter alia, rules concerning the achievement
of language policy goals and of the            of language policy goals and of the
protection of the public interest in terms of  protection of the public interest in terms of
television's role as a provider of             television's role as a provider of
information, education, culture and            information, education, culture and
entertainment and the need to safeguard         entertainment and the need to safeguard
pluralism in the information industry and      pluralism in the information industry and
the media and the protection of competition     the media and the protection of competition
with a view to avoiding the abuse of            with a view to avoiding the abuse of
dominant positions and/or the establishment     dominant positions, for example by securing
or strengthening of dominant positions;         exclusive rights to major events to the
whereas such rules must be compatible with      disadvantage of the majority and/or the
Community law;                                  establishment or strengthening of dominant
                                                positions; whereas such rules must be
                                                compatible with Community law;
                                            y
 ---pagebreak---                                     Amendment 11
                                  Recital 35a (new)
     Common Position of the Council                     Amended Proposal
                                            (35a) Whereas the objective of supporting
                                            audiovisual production in Europe can
                                            furthermore be pursued within the Member
                                            States inter alia through the definition of a
                                            public interest mission for certain
                                            broadcasting organizations, including the
                                            obligation to contribute substantially to
                                            investment in European production:
Comment : numbering change (35a instead of 35b). The term "European (instead of "national
and local") production is appropriate in order to avoid potential contradictions with
Community law.
                                                  ir
 ---pagebreak---                                         Amendment 14
                                      ARTICLE l(l)(b)
                             Article 1(c) (Directive 89/552/EEC)
      Common Position of the Council                          Amended Proposal
 (c)     'television advertising' means any      (c) 'television advertising'      means any
         form of announcement broadcast          form of announcement broadcast whether in
         whether in return for payment or for    return for payment or for similar
         similar consideration or broadcast      consideration or broadcast for self-
         for self-promotional purposes by a      promotional purposes by a public or private
         public or private undertaking in        undertaking in connection with a trade,
         connection with a trade, business,      business, craft or profession in order to
         craft or profession in order to         promote the supply of goods or services,
         promote the supply of goods or          including immovable property, rights and
         services, including immovable           obligations, in return for payment or by
         property, rights and obligations, in    distributing such goods as a free promotion.
         return for payment;                     It shall include all items of publicity
                                                 broadcast on behalf of someone other than
                                                 the broadcaster in advertising breaks. It
                                                 shall not include teleshopping;
Comment : the Commission indicated in Plenary its agreement in substance on this
amendment but also indicated that the wording was not entirely appropriate. This is because
the objective of excluding "public service announcements and charity appeals" from the daily
and hourly time limits is already met by the Common Position in Article 18, new paragraph
3. Moreover, new recitals 25 and 26 in the Common Position already deal adequately with
the question of announcements made by the broadcaster in connection with its own
programmes and ancillary products directly derived from these. The drafting of this
paragraph has been amended accordingly.
                                              y]G
 ---pagebreak---                                        Amendment 23
                                  ARTICLE l(5)(a) (new)
                            Article 4(2) (Directive 89/552/EEC)
     Common Position of the Council                         Amended Proposal
                                                "5(a) In Article 4. paragraph 2 is replaced
                                                by the following :
                                                2. Where the proportion laid down in
                                                paragraph 1 cannot be attained, it must not
                                                be lower than the average for 1992 in the
                                                Member State concerned."
Comment : The Commission gave a positive opinion on amendment 23 in Plenary in the
context of a system including investment obligations, in the spirit of its initial proposal.
However, the Parliament failed to adopt the amendment on investment obligations (am. n " 22)
which was designed to introduce the necessary flexibility into the system. Consequently, the
"no-back sliding" clause in amendment 23 would become extremely difficult to apply. The
underlying purpose being to update the reference year for the "acquis communautaire", the
Commission proposes the same formula as in the Common Position but with a reference to
1992, as in the Parliamentary amendment, instead of 1988 (or 1990 for Greece and Portugal).
There is also a numbering change (5a instead of 5c)
                                              "  ^
 ---pagebreak---                                     Amendment 24
                               ARTICLE l(5)(b) (new)
                     Article 4(2a) (new) (Directive 89/552/EEC)
    Common Position of the Council                      Amended Proposal
                                            b) The following new paragraph 2a is
                                            inserted :
                                            "2a Channels broadcasting entirely in a
                                            language other than those of the Member
                                            States shall not be covered bv the
                                           provisions of this Article or Article 5.
                                            Where such a language or languages are a
                                            substantial but not exclusive part of the
                                            channel's transmission time, the provisions
                                           of this Article and Article 5 shall not apply
                                           to that part of transmission time."
Comment : Rewording of amendment for purposes of clarification.
                                      n<g
 ---pagebreak---                               Amendment 25
                         ARTICLE l(5)(c) (new)
                   Article 4(3) (Directive 89/552/EEC)
Common Position of the Council                      Amended Proposal
                                       c) Paragraph      3   is   replaced   by   the
                                       following :
                                       "3. Member States shall provide the
                                       Commission every two years with a report
                                       on the application of this Article and Article
                                       5 from the date of adoption of this
                                       Directive.
                                       That report shall in particular comprise all
                                       qualitative assessments and statistical
                                       information supplied to the Member State
                                       concerned by the channels falling within its
                                       jurisdiction for the purpose of ascertaining
                                       whether the proportion referred to in this
                                       Article and Article 5 has been achieved. In
                                       addition Member States shall indicate to the
                                       Commission the reasons for the failure to
                                       attain those proportions and the appropriate
                                       measures they propose to take in each case
                                       to ensure that the TV broadcasting
                                       organization does actually attain them.
                                       The Commission shall inform the other
                                       Member States and the European Parliament
                                       ofthe reports, which shall be accompanied
                                       bv an opinion. The Commission shall
                                       ensure the application of this Article and
                                       Article 5 in accordance with the provisions
                                       of the Treaty. The Commission may take
                                       account in its opinion, in particular, of
                                       progress achieved in relation to previous
                                       years, the share of first broadcast works in
                                       the programming, the               particular
                                       circumstances of new television
                                       broadcasters and the specific situation of
                                       countries with a low audiovisual production
                                       capacity or restricted language area."
                                    1 <3
 ---pagebreak---                                     Amendment 29
                                    ARTICLE 1(8)
                           Article 7 (Directive 89/552/EEC)
     Common Position of the Council                       Amended Proposal
Article 7 shall be replaced by the Article 7 shall be replaced by the
following :                                   following :
"1. Unless otherwise agreed between           "Article 7
rightsholders and broadcasters, the latter    Member States shall ensure that
shall not broadcast any cinematographic      broadcasters under their iurisdiction do not
work until eighteen months have elapsed       broadcast cinematographic works outside
since the work was first shown in cinemas     periods agreed with the rightholders."
in one of the Member States.
2. The period referred to in paragraph 1
shall be reduced to twelve months :
(a) for pay-per-view and pay-television
channels;
(b) in the case of cinematographic works
co-produced by the broadcaster. "
                                          2o
 ---pagebreak---                                        Amendment 31
                                       ARTICLE 1(12)
                             Article 10 (Directive 89/552/EEC)
     Common Position of the Council                          Amended Proposal
Article 10 shall      be replaced     by the    Article 10 shall be replaced          by the
following :                                     following :
"Article 10                                     "Article 10
1. Television advertising and teleshopping      1. Television advertising and teleshopping
shall be readily recognizable as such and       broadcasts, spots and windows shall be
kept quite separate from other parts of the     readily recognizable as such and kept quite
programme service by optical and/or             separate from other parts of the programme
acoustic means.                                 service by optical and/or acoustic means.
2. Isolated advertising and teleshopping        2. Isolated advertising and teleshopping
spots shall remain the exception.               spots shall remain the exception.
3. Advertising and teleshopping shall not       3. Advertising and teleshopping broadcasts,
use subliminal techniques.                      spots and windows shall not use subliminal
                                                techniques.
4. Surreptitious advertising and teleshopping   4. Surreptitious advertising and teleshopping
shall be prohibited."                           broadcasts, spots and windows shall be
                                                prohibited."
                                                  2 "7
 ---pagebreak---                              Amendment 33
         ARTICLE 1(14), SECOND SUBPARAGRAPH (new)
                  Article 12(c) (Directive 89/552/EEC)
Common Position of the Council                    Amended Proposal
                                      "Article 12(c) is replaced by the following
                                      (c)     be offensive        to     religious,
                                              philosophical or political beliefs:"
                                     2d
 ---pagebreak---                                        Amendment 36
                                      ARTICLE 1(21)
                                    Article 18a(la) (new)
      Common Position of the Council                        Amended Proposal
                                                The following Article shall be inserted :
                                                "Article 18a
                                                1. (no change)
                                               i a Teleshopping programmes and spots
                                               must be easily identifiable as such and, if
                                               they are inserted in a service that is not
                                               exclusively devoted to this activity, they
                                               must be clearly distinguished from that
                                               service's other broadcasts, including
                                               advertising broadcasts, by optical and
                                               acoustic means, so that any fraudulous
                                               intent to circumvent the rules applying to
                                               advertising can be excluded.
                                               2. (no change)
Comment : This is the first part of amendment 36. The Commission has a negative opinion
on the second part (which does not therefore appear here).
                                             Z 3
 ---pagebreak---                                         Amendment 38
                                       ARTICLE 1(18)
                             Article 16(1) (Directive 89/552/EEC)
      Common Position of the Council                          Amended Proposal
                                                 In Article 16, the present text shall become
                                                 paragraph 1 and the following paragraphs
                                                 shall be added :
                                                 "(la) Member States shall take the
                                                 necessary measures to ensure that
                                                 broadcasts bv broadcasters under their
                                                 jurisdiction do not include advertising spots
                                                 which might seriously impair the
                                                 psychological well-being of minors.
                                                 2. (no change)"
Comment : the 2nd part of amendment 38 has been re-located in the appropriate Article of
Chapter IV, which concerns the provisions on advertising. The word "programme " has been
replaced by "broadcast" because it is already a fundamental principle of the Directive that
programmes and advertising should be kept separate (cf. Article 10 § 1). The matter of
programme announcements (1st part of amendment 38) is already covered by the phrase
 "including trailers" included in the amended version of Article 22 (cf. infra).
                                           *W
 ---pagebreak---                                         Amendment 38
                                        ARTICLE 1(27)
                             Article 22(1) (Directive 89/552/EEC)
       Common Position of the Council                         Amended Proposal
  Article 22 shall be replaced         by the    Article 22 shall be replaced         by the
  following :                                    following :
  "1. Member States shall take appropriate       "1. Member States shall take appropriate
 measures to ensure that television              measures to ensure that television
 broadcasts by broadcasters under their          broadcasts, including trailers, by
 jurisdiction do not include any programmes      broadcasters under their jurisdiction do not
 which might seriously impair the physical,      include any programmes which might
 mental or moral development of minors, in       seriously impair the physical, mental or
 particular those that involve pornography or    moral development of minors, in particular
 gratuitous violence."                           those that involve pornography or gratuitous
                                                 violence.
                                                 2. (no change)
                                                 3. (no change)"
Comment : Corresponds to 1st part of Amendment 38
                                            2.S
 ---pagebreak---                                       Amendment 43
                                    ARTICLE 1 (31)
                                Article 23a (2) (aa) (new)
     Common Position of the Council                        Amended Proposal
                                              "aa) to deliver own-initiative opinions or
                                              opinions requested by the Commission on
                                              the application by the Member States of the
                                              provisions of this Directive, without
                                              prejudice to the Commission's powers
                                              under Articles 155 and 169 of the Treaty;"
Comment : it is appropriate to add "vAthout prejudice ... "for reasons of conformity with the
Treaty provisions.
                                        Z G
 ---pagebreak---                                     Amendment 44
                                   ARTICLE 1(31)
                                  Article 23a (2) (c)
    Common Position of the Council                      Amended Proposal
"c) to discuss the outcome of regular       "c) to discuss the outcome of regular
consultations which the Commission holds    consultations which the Commission holds
with representatives of broadcasting        with representatives of broadcasting
organisations, producers, consumers,        organisations, producers, consumers,
manufacturers, service providers and trade  manufacturers, service providers and trade
unions;"                                    unions and the creative community;"
                                          2}
 ---pagebreak---  ---pagebreak---  ---pagebreak---  ---pagebreak---                                                                   ISSN 0254-1475
                                                           COM(96) 626 final
                                              DOCUMENTS
EN                                                                       16 06
                                    Catalogue number : CB-CO-96-621-EN-C
                                                             ISBN 92-78-11980-6
Office for Official Publications of the European Communities
L-2985 Luxembourg