CELEX: 51988PC0154
Language: en
Date: 1988-03-21
Title: AMENDED PROPOSAL FOR A COUNCIL DIRECTIVE ON THE COORDINATION OF CERTAIN PROVISIONS LAID DOWN BY LAW, REGULATION OR ADMINISTRATIVE ACTION IN MEMBER STATES CONCERNING THE PURSUIT OF BROADCASTING ACTIVITIES

27. 4. 88                             Official Journal of the European Communities                               N o C 110/3
                                                             II
                                                     (Preparatory Acts)
                                                 COMMISSION
             Amended proposal for a Council Directive on the coordination of certain provisions laid down
             by law, regulation or administrative action in Member States concerning the pursuit of broad-
                                                    casting activities (')
                                                    COM(88) 154 final
             (Submitted by the Commission to the Council pursuant to Article 149 (3) of the EEC Treaty on
                                                        6 April 1988)
                                                       (88/C 110/03)
             (') OJ No C 179, 17. 7. 1986, p. 4.
                     ORIGINAL PROPOSAL                                                  AMENDED PROPOSAL
THE COUNCIL OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European             Unchanged
Economic Community, and in particular Articles 57 (2)
and 66 thereof,
Having regard to the proposal from the Commission,                Having regard to the proposal from the Commission ('),
Having regard      to   the  opinion   of   the   European        In cooperation with the European Parliament (2),
Parliament,
Having regard to the opinion of the Economic and                  Having regard to the opinion of the Economic and
Social Committee,                                                 Social Committee (3),
Whereas the objectives of the Community as laid down              Unchanged
in the Treaty include an ever closer union among the
peoples of Europe and closer relations between the
States belonging to the Community, ensuring the
economic and social progress of its countries by common
action to eliminate the barriers which divide Europe, the
constant improvement of the living conditions of its
peoples as well as the preservation and strengthening of
peace and liberty;
Whereas for these purposes, the Treaty provides for               Unchanged
establishing a common market, including the abolition,
as between Member States, of obstacles to freedom of
movement for services, the institution of a system
ensuring that competition in the common market is not
distorted, and the approximation of the provisions of
Member States to the extent required for the proper
functioning of the common market;
                                                                   (') OJ No C 179, 17. 7. 1986, p. 4.
                                                                   (2) Minutes of the proceedings of the sitting of Wednesday
                                                                       20 January 1988, PE 120.083, p. 11.
                                                                   (') OJ No C 232, 31. 8. 1987, p. 29.
 ---pagebreak--- No C 110/4                             Official Journal of the European Communities                                  27. 4. 88
                      ORIGINAL PROPOSAL                                               AMENDED PROPOSAL
Whereas broadcasts transmitted across frontiers within            Unchanged
the Community, in particular by satellite and cable, are
one of the principal means to promote the above
objectives of the Community which are at the same time
of a political, economic, social, cultural and legal nature;
Whereas the attainment of the above objectives of the             Unchanged
Community calls, almost 30 years after the establishment
of the Community, for transition from the stage of the
opening up of national markets for the production and
distribution of broadcasts to the stage of one internal
market for broadcasts;
Whereas the achievement of this common market pre-                Unchanged
supposes, in addition to the elimination of obstacles to
the free movement of broadcasts, the adaptation and
promotion of the factors of production and distribution
in the Community of broadcast programmes in order to
ensure that the enlarged market for broadcast
programmes will operate similarly to a domestic market;
Whereas for this purpose or, in the words of the Treaty,          Unchanged
in order to make it easier for persons to take up and
pursue activities as self-employed persons, including the
activities of producing or distributing broadcast
programmes, the Treaty provides for the issuing of
directives for the coordination of the provisions
concerning the taking up and pursuit of such activities;
                                                                  Whereas an essential condition for attaining the
                                                                  objectives of this Directive is to ensure the efficiency of
                                                                  the public broadcasting system by establishing conditions
                                                                  of fair competition in the common market;
Whereas the broadcasting of commercial advertisements             Delete
is a service within the meaning of the Treaty because it is
provided for remuneration; whereas the liberalization of
this service helps to promote trade in goods and services
and has therefore to be given priority under the Treaty;
Whereas the broadcasting of other messages is also a              Whereas the broadcasting of messages, including adver-
service within the meaning of the Treaty because this             tising, is a service within the meaning of the Treaty
activity is normally provided for remuneration and is, by         because this activity is normally provided                for
its nature, not 'goods' governed by the provisions of the         remuneration and is, by its nature, not governed by the
Treaty relating to freedom of movement for goods such             provisions of the Treaty relating to freedom of
as other media like video cassettes, video discs, records,        movement for goods such as other media like video
newspapers, magazines, periodicals and books;                     cassettes, video discs, records, newspapers, magazines,
                                                                  periodicals and books;
Whereas the grant by a foreign broadcasting organ-                Unchanged
 ization or other right holder to a domestic cable
 operator of the authorization required by copyright or
 other laws to relay the foreign programmes also
 constitutes a service within the meaning of the Treaty
 because it is normally provided for remuneration;
 ---pagebreak--- 27. 4. 88                              Official Journal of the European Communities                No C 110/5
                     ORIGINAL PROPOSAL                                            AMENDED PROPOSAL
Whereas the Treaty does not exclude from its scope any            Unchanged
such service, by reason of its particular nature, such as its
cultural aspects or implications, but provides for the
liberalization and free movement of all services normally
provided for remuneration which are therefore and
without prejudice as to their cultural or other contents
considered by the Treaty to be economic activities, a
harmonious development of which is one of the
objectives of the Community;
Whereas the Treaty guarantees freedom            to provide       Unchanged
services within the Community, including         broadcasts,
without restrictions in respect of nationals    of Member
States who are established in a State of the    Community
other than that of the person for whom the      services are
intended;
Whereas this individual right to provide broadcasts to            Unchanged
recipients in other Member States, including cable
operators, free of restrictions is a specific Community
law manifestation of the more general European human
right to freedom of expression which includes freedom
to receive and impart information and ideas without
interference by public authority and regardless of
frontiers, enshrined in Article 10 (1) of the Convention
for the Protection of Human Rights and Fundamental
Freedoms, signed in Rome on 4 November 1950 and
ratified by all Member States;
Whereas, for this reason, freedom to provide broadcasts           Unchanged
under Community law must be implemented, when
applying the Treaty and issuing directives for the coordi-
nation of the provisions concerning the pursuit of the
activities of broadcasters and cable operators, in the light
of and at least to the extent guaranteed by the corre-
sponding freedoms provided for in Article 10 (1) of the
European Convention on Human Rights;
Whereas the same parallelism must be respected when               Unchanged
applying the Treaty and issuing directives for the coordi-
nation of provisions limiting the exercise, on the one
hand, of freedom to provide broadcasts which are auth-
orized under Article 56 (1) of the Treaty or justified on
grounds of general interest and, on the other hand, of
the freedom to receive and impart information and ideas
through broadcasts which are authorized under Article
 10 (2) of the European Convention on Human Rights;
Whereas the laws, regulations and administrative                  Unchanged
measures in Member States concerning the pursuit of
activities as broadcasters and cable operators contain
disparities in respect of their applicability and content,
on producing and distributing programmes, on adver-
tising and sponsoring, on protecting children and young
persons, and on copyright, which may impede the free
movement of broadcasts within the Community and may
distort competition within the common market;
 ---pagebreak--- No C 110/6                              Official Journal of the European Communities                 27. 4. 88
                       ORIGINAL PROPOSAL                                            AMENDED PROPOSAL
Whereas the disparities referred to in the field of                Unchanged
broadcast advertising have the additional effect of
impeding the free movement of goods and services
inasmuch as the opportunities to advertise those goods
and services throughout the Community, which are an
integral part of the process of marketing them, are
subject to variable restrictions and prohibitions;
Whereas the free movement of broadcast within the                  Unchanged
Community is also impeded where the right to
communicate a particular programme is assigned to
different persons in different Member States, allowing
the assignees to rely upon their rights to prohibit the
cable retransmission of a foreign broadcast in different
Member States;
Whereas all such restrictions on freedom to provide                Unchanged
broadcasting services within the Community shall be
abolished under the Treaty both by applying Article 59
of the Treaty and, in so far as such restrictive rules treat
broadcasting services identically whatever their origin or
the nationality or place of establishment of the persons
providing them and in so far as those laws are justified
on grounds of general interest, by issuing directives for
the coordination of the provisions concerning the pursuit
of activities as self-employed persons, including activities
of broadcasters and cable operators;
Whereas the purpose of this coordination is to make it             Unchanged
easier for persons to pursue activities as self-employed
persons, in particular, to make it easier for broadcasters
and cable operators to pursue the transmission and the
retransmission of broadcast programmes and adver-
tisements and thus to abolish obstacles to the free
movement of broadcasts and, more generally, to the free
flow of information and ideas within the Community;
Whereas under the Treaty, nationals of Member States               Unchanged
providing services from within a Member State to a
person in another Member State may pursue their acti-
vities exclusively under the conditions imposed by the
law of the first Member State;
Whereas for this reason, for the reason mentioned before           Unchanged
the last recital and in order to avoid the cumulative
application to the same broadcast, broadcaster or cable
operator of the broadcasting law of all or several
Member States, it is necessary but sufficient that all
broadcasts comply with the law of the Member State in
which they originate;
 ---pagebreak---  27. 4. 88                             Official Journal of the European Communities                            No C 110/7
                     ORIGINAL PROPOSAL                                               AMENDED PROPOSAL
                                                                  Whereas this Directive lays down the minimum rules
                                                                  needed to guarantee freedom of transmission in broad-
                                                                  casting; whereas, therefore, it does not affect the re-
                                                                  sponsibility of the Member States and subdivisions
                                                                  thereof with regard to the organization and financing of
                                                                  broadcasting and the content of programmes; whereas
                                                                  the independence of cultural developments in the
                                                                  Member States and the preservation of cultural diversity
                                                                  in the Community therefore remain unaffected;
Whereas it is necessary in the common market that all            Unchanged
broadcasts originating and intended for reception within
the Community, and in particular those intended for
reception in another Member State, should respect the
law of the originating Member State applicable to
broadcasts intended for reception by the public in that
Member State and the provisions of the present Directive
in order to protect consumers as listeners and viewers, in
particular young persons, as well as authors, producers,
broadcasters and performers, advertisers and advertising
agencies and the interests of the public in general;
                                                                 Whereas it is vital that the accuracy and source of all
                                                                 news and information should be checked by broadcasters
                                                                 with the utmost care prior to transmission;
Whereas checks on respect for national law as coor-              Whereas the requirement that the originating Member
dinated by this Directive in the originating Member State        State should verify respect for national law as coor-
are sufficient under Community law to ensure free circu-         dinated by this Directive is sufficient under Community
lation of broadcasts without secondary control on the            law to ensure free movement of broadcasts without
same grounds in each of the receiving Member States;             secondary control on the same grounds in each of the
                                                                 receiving Member States;
                                                                 Whereas it is essential for the satisfactory implemen-
                                                                 tation of this Directive to ensure the prevention of any
                                                                 acts which may prove detrimental to freedom of
                                                                 movement and trade in broadcasts or which may
                                                                 promote the creation of dominant positions which would
                                                                 lead to restrictions on pluralism and freedom of
                                                                 broadcast information and of the information sector as a
                                                                 whole;
Whereas the present Directive is without prejudice to            Unchanged
existing or future Community acts of harmonization
which are or will be necessary, in particular to satisfy
mandatory requirements concerning the protection of
consumers and the fairness of commercial transactions;
Whereas the coordination of national laws designed to            Unchanged
secure and promote distribution and production of tele-
vision programmes in respect of provisions that are not
based upon grounds of general interest, public policy,
public security or public health is not necessary since
they cannot be invoked to restrict the free movement of
broadcasts within the Community;
 ---pagebreak--- N o C 110/8                            Official Journal of the European Communities                               27. 4. 88
                      ORIGINAL PROPOSAL                                                AMENDED PROPOSAL
Whereas such coordination is nevertheless needed at the           Unchanged
Community level to make it easier for persons and
industries producing programmes having a cultural
objective to take up and pursue their activities;
Whereas minimum requirements in respect of all public             Unchanged
or private Community television programmes for audio-
visual productions originating in the Community are an
effective means to promote production, independent
production and distribution in the abovementioned
industries and are complementary to other instruments
which are already or will be proposed to favour the same
objective;
                                                                  Whereas in addition to this Directive other Community
                                                                  measures to promote the international competitiveness of
                                                                  European cinema and television production are needed,
                                                                  in view of the strength of the non-European media
                                                                  industry, not only in order to achieve the economic
                                                                  objectives of the Community but also to counteract any
                                                                  loss of linguistic and cultural identity;
Whereas the vulnerability of European cultural industries         Unchanged
is not due to lack of creative talent, but to fragmented
production and distribution systems and whereas it is
therefore necessary to promote markets of sufficient size
for television productions in the Member States to
recover necessary investments not only by establishing
common rules opening up national markets but also by
offering productions of each kind from the Community
an adequate part in television programmes of all Member
States, which will at the same time promote the presence
of other European cultures in the television programmes
of each Member State;
Whereas the progressive establishment of a general pref-          Unchanged
erence for the distribution of television programmes of
all kinds produced within the Community, and specific
measures designed to promote employment and small
and medium-sized enterprises within the Community's
cultural industries, allows for the necessary adaptation of
audio-visual production facilities to meet the increasing
demand for television programmes;
Whereas,    in particular, a preference for the first             Unchanged
broadcast  of new Community productions of a creative
kind will  promote actual and future employment in the
industries mentioned in the preceding recitals;
Whereas, in addition, a preference for independent                Unchanged
productions, made outside the broadcast undertaking,
will stimulate new sources of television production, es-
pecially the creation of small and medium-sized enter-
prises and offer new opportunities and outlets to the
marketing of creative talents of employment of cultural
professions and workers;
 ---pagebreak--- 27. 4. 88                              Official Journal of the European Communities                             No C 110/9
                     ORIGINAL PROPOSAL                                                AMENDED PROPOSAL
Whereas the admission of advertising in cross-frontier            Delete
broadcasts will create the conditions in which broadcast
advertising should become lawful in all Member States
thereby establishing a common market for broadcast
advertising throughout the Community;
Whereas Member States should limit the volume of                  Whereas Member States should limit the volume of
broadcast advertising, so that it does not detract from           broadcast advertising so that it does not detract from the
the function of radio and television as media for infor-          function of radio and television as media for infor-
mation, education, culture and entertainment and the              mation, education, culture and entertainment and so that
demand for advertising in internal broadcasts of each             the demand for advertising in internal broadcasts of each
Member State is largely met taking also into account the          Member State is largely met taking also into account the
interests of other media;                                         interests of other media, with a view to safeguarding the
                                                                  pluralism of the information sector as a whole;
Whereas in order to ensure that the interests of                  Whereas in order to ensure that the interests of
consumers as listeners and viewers of broadcasts are fully        consumers as listeners and viewers of broadcasts are fully
and properly protected, it is essential for broadcast             and properly protected, it is essential for broadcast
advertising to be subject to a number of rules and                advertising to be subject to a number of rules and
standards, the compliance with which is checked prior to          standards;
transmission;
Whereas the implementation of the free cross-frontier             Unchanged
movement of broadcasts implies a legal framework at
Community level containing certain minimum standards
on advertising, but it is for the Member States to
complete these provisions at the national level; and
whereas the Member States must maintain the right to
introduce stricter standards for domestic transmission
such as refusing to permit the broadcasting of adver-
tisements on Sundays or public holidays;
Whereas it is necessary to ensure that consumer interests         Unchanged
are respected, especially bearing in mind the considerable
impact of advertising on listeners and viewers, and thus it
is necessary, in accordance with the solution adopted in
the majority of Member States, to prohibit all adver-
tisements promoting cigarettes and tobacco products and
to introduce strict rules relating to the advertisement of
alcoholic products and to permit those Member States
which wish to do so to prohibit completely such adver-
tisements in their internal broadcasts;
Whereas, more particularly, advertisements can unduly             Unchanged
 influence younger people if special standards are not laid
down to prevent it;
 ---pagebreak--- N o C 110/10                          Official Journal of the European Communities                                 27. 4. 88
                    ORIGINAL PROPOSAL                                                AMENDED PROPOSAL
Whereas because of the constant rise in the cost of              Whereas because of the constant rise in the cost of
audio-visual programmes sponsorship is developing                audio-visual programmes sponsorship is developing
greatly and playing an increasing role in the financing of       greatly and playing an increasing role in the financing of
programmes; whereas sponsorship should not be                    programmes; whereas sponsorship should not be
excluded from such financing, but it should be strictly          excluded from such financing, but it should be strictly
ensured that sponsors do not exercise any improper               ensured that sponsors do not exercise any influence on
influence on the contents of programmes and that there           the contents of programmes and that there is no direct
is no link between programmes and advertising within or          link between programmes and advertising within or
around them which can be taken to suggest this;                  around them which can be taken to suggest this;
Whereas, given the large degree of flexibility for               Whereas, given the large degree of flexibility for
Member States to fix the total volume of advertising time        Member States to fix the total volume of advertising time
in internal broadcasts, Member States may restrict the           in television broadcasts, each Member State should be
retransmission of cross-frontier broadcast advertising           permitted to restrict the retransmission of television
exceeding 15 % of each broadcast receivable each day             advertising from other Member States exceeding 15 %
by the public in those Member States, in order to give a         per day and 18 % per hour of the television broadcast
certain guarantee to consumers in receiving countries            receivable by the public in that Member State, in order
and to avoid important distortions of competition                to give a certain guarantee to consumers in receiving
between broadcasters in the Community;                           countries and to avoid important distortions of compe-
                                                                 tition between broadcasters in the Community;
Whereas a lower limit than 15 % could have the effect            Unchanged
of excluding certain existing broadcasters in some
Member States from free provision of their services
within the Community;
Whereas it is accepted that the protection of the                Unchanged
physical, mental and moral development of children and
young persons is in the general interest;
Whereas in a common market for broadcasting, broad-              Unchanged
casters should be subject to similar obligations in relation
to the protection of children and young persons against
possible harmful effects of confrontation with inappro-
priate audio and audi-visual material;
Whereas the Community, while ensuring the free                   Unchanged
movement of broadcasts, must ensure respect for
copyright and related rights;
Whereas a preference to arrive at this result by an              Unchanged
agreement freely entered into by the various interested
parties, that is a contractual solution, is generally
recognized;
Whereas a sufficiently long period for negotiation should        Unchanged
be allowed to permit these parties to conclude such
agreements respecting the interests of each of them;
Whereas, nevertheless, in the absence of an agreement            Whereas, nevertheless, in the absence of an agreement
and if a cable operator has manifested his desire to             and if a cable operator has manifested his desire to
retransmit a certain programme coming from another               retransmit a certain programme coming from another
Member State, the balance between these interests has to         Member State, the balance between these interests has to
be safeguarded by a system of legal licences providing           be safeguarded by the decision of an arbitration body
for adequate remuneration which the particular Member            fixing the adequate remuneration which the particular
State will be obliged to introduce under these circum-           Member State will be obliged to introduce under these
stances;                                                         circumstances;
 ---pagebreak--- 27. 4. 88                              Official Journal of the European Communities                               No C 110/11
                     ORIGINAL PROPOSAL                                                   AMENDED PROPOSAL
                                                                  Whereas in a common market for broadcasting, broad-
                                                                  casting companies should be subject to similar obli-
                                                                  gations in relation to the right to reply, to ensure that
                                                                  this right may be effectively exercised by anyone whose
                                                                  legitimate interests have been harmed by a statement in a
                                                                  radio or television broadcast;
                                                                  Whereas the Council must ensure by means of a separate
                                                                  decision that the Community directive takes precedence
                                                                  over the European convention on broadcasting without
                                                                  frontiers currently being drawn up at the Council of
                                                                  Europe, to enable the Community, through the work of
                                                                  its institutions, to fulfil the task assigned to it of creating
                                                                  a common market in the field of broadcasting;
                                                                  Whereas it is vital to stress the requirement that, in
                                                                  accordance with Article 5 of the Treaty, Member States
                                                                  should refrain from concluding international agreements
                                                                  on this subject before the Council has adopted this
                                                                  Directive;
                                                                  Whereas this Directive is only an initial step towards the
                                                                  necessary gradual development of the comprehensive
                                                                  European 'media' policy advocated by the European
                                                                  Parliament in its resolution of 10 October 1985 ('),
HAS ADOPTED THIS DIRCTIVE:                                        Unchanged
                        CHAPTER I
                     General provision
                          Article 1                                                            Article 1
 1.   Each Member State shall ensure that all internal             1.    Each Member State shall ensure that all broadcasts
broadcasts originating on its territory comply with its law        transmitted by broadcasters under its jurisdiction comply
applicable to broadcasts intended for the public in that          with its law applicable to broadcasts intended for the
Member State.                                                      public in that Member State.
2.    Without prejudice to Article 14 and the provisions           2.    Unchanged
of Chapter V, the Member States shall not restrict the
reception and retransmission on their territories of
broadcasts from other Member States for reasons which
fall within the fields coordinated by this Directive.
 3.   This Directive does not apply to broadcasts                  3.    Unchanged
 intended exclusively for reception in States other than
 Member States.
                                                                   (') OJ No C 288, 11. 11. 1985, p. 113.
 ---pagebreak--- No C 110/12                             Official Journal of the European Communities                                 27. 4. 88
                      ORIGINAL PROPOSAL                                                 AMENDED PROPOSAL
                         CHAPTER II
Promotion of distribution and production of television
                         programmes
                           Article 2                                                         Article 2
1.     Member States shall ensure that internal broad-             1.     Member States shall ensure that television broad-
casters of television reserve at least 30 % of their               casters and cable operators retransmitting television
programming time not consisting of news, sporting                  broadcasts reserve at least 60 % of their programming
events and game shows, advertising or teletext services            time not consisting of news, sporting events, game
for broadcasts of Community works within the meaning               shows, advertising or teletext services for Community
of Article 4, of which in the case of initial transmissions        works of which at least one-third shall be reserved for
at least one-third shall be reserved for first broadcasts in       first broadcasts in the Community. This percentage shall
the Community.                                                     be achieved gradually on the basis of appropriate criteria
                                                                   within a period of three years from the date specified in
                                                                   Article 22.
2.     This percentage shall be progressively increased to         Delete
reach at least 60 % after the expiry of three years from
the date specified in Article 22.
3. For the purposes of this Article,                               2.     For the purposes of paragraph 1:
— in cases of simultaneous, unaltered and unabridged               — in cases of simultaneous,' unaltered and unabridged
     retransmission, internal broadcasts from other                     retransmission, broadcasts from other Member States
     Member States shall be regarded in their entirety as               shall be regarded in their entirety as Community
     Community works,                                                   works,
— in cases of co-produced Community works, the first               — in cases of co-productions, the first broadcast by
     broadcast by each of the co-producers shall be                     each of the Community co-producers shall be
     considered a first broadcast in the Community.                     considered to be a first broadcast in the Community.
                           Article 3                                                          Article 3
 1.    Member States shall ensure that, as regards their            1.    Member States shall ensure that television broad-
initial transmissions, internal television broadcasters            casters reserve at least 5 % of their programming budget
reserve at least 5 % of their programming budget for               for Community works created by producers who are
Community works, within the meaning of Article 4,                  independent of the television companies.
created by independent producers.
2.     This percentage shall be progressively increased to         2.     This percentage shall be progressively increased to
reach at least 10 % after the expiry of three years from           at least 10 % after the expiry of three years from the
the date specified in Article 22.                                  date specified in Article 22 and shall be achieved by allo-
                                                                   cating an adequate proportion to recent works, that is,
                                                                   works produced within a reasonable period before their
                                                                   transmission. Such a period shall be considered
                                                                   reasonable where is does not exceed five years.
                           Article 4                                                          Article 4
 Community works within the meaning of this chapter                 1.    Community works within the meaning of this
 are:                                                               chapter are works mainly made with authors and
                                                                    workers residing in one or more Member States provided
                                                                    that they comply with one of the following three
                                                                    conditions:
 ---pagebreak--- 27. 4. 88                             Official Journal of the European Communities                             No C 110/13
                     ORIGINAL PROPOSAL                                                AMENDED PROPOSAL
(a) works, made by producers from a Member State;                (a) such works are made by one or more producers
                                                                      established in one or more Member States; or
(b) works made by producers from several Member                  (b) production of the works is supervised and actually
    States;                                                           controlled by one or more producers established in
                                                                      one or more Member States; or
(c) works made by producers from one or several                  (c) the contribution of Community co-producers to the
    Member States and non-Member States where the                     total co-production costs is preponderant and the co-
    Community proportion of the total production costs                production is not controlled by one or more
    is equal to at least 70 %.                                        producers established outside the Community.
                                                                 2.     Works made either exclusively or in co-production
                                                                 with producers established in one or more Member
                                                                 States, by producers established in one or more of the
                                                                 EFTA or Council of Europe States that have concluded
                                                                 agreements based on reciprocity with the Community
                                                                 shall be considered to be Community works for the
                                                                 purposes of this chapter if they are made mainly with
                                                                 authors and workers residing in one or more Member
                                                                 States or EFTA or Council of Europe States.
                                                                 3.     Works not being Community works within the
                                                                 meaning of paragraph 1 but made mainly with authors
                                                                 and workers residing in one or more Member States
                                                                 shall be considered to be Community works to an extent
                                                                 corresponding to the proportion of the contribution of
                                                                 Community co-producers to the total production costs.
                                                                                           Article 4a
                                                                  1.    This chapter shall not apply to local television
                                                                 broadcasts not forming part of a national network.
                                                                 2.     Member States shall remain free  in relation to some
                                                                 or all of the television broadcasters    under their juris-
                                                                 diction to provide for more detailed    or stricter rules in
                                                                 order to promote the distribution and   production of tele-
                                                                 vision programmes.
                                                                                           Article 4b
                                                                 The Commission shall enter into negotiations with the
                                                                  States of EFTA and the Council of Europe with a view
                                                                  to the agreements referred to in Article 4 (2).
 ---pagebreak--- No C 110/14                            Official Journal of the European Communities                                27. 4. 88
                      ORIGINAL PROPOSAL                                                AMENDED PROPOSAL
                        CHAPTER III
           Broadcast advertising and sponsoring
                         SECTION 1                                Delete
INTERNAL BROADCASTS                                               Delete
                           Article 5                                                       Article                         ")
Member States shall fix the amount of time allowed for            Member States shall ensure that broadcast advertising
broadcast advertising so that:                                    and the maximum amount of time allowed for it is
                                                                  determined for each broadcaster authorized to broadcast
                                                                  advertising so that:
(a) it does not detract from the function of radio and            (a) unchanged
    television as media for information, education,
    culture and entertainment; and
(b) the demand for broadcast advertising can be largely           (b) the demand for broadcast advertising can be largely
    met, also taking into account the interests of other               met, also taking into account the interests of other
    media.                                                             media, with a view to safeguarding the pluralism of
                                                                       information.
                           Article 6                                                        Article 6
1.    Without prejudice to the provisions of other                1.    Without prejudice to the provisions of other
Community acts, the Member States shall ensure that               Community acts, Member States shall ensure that adver-
broadcast advertising in internal broadcasts is checked           tising is broadcast only if it complies with the rules of
prior to transmission and is broadcast only if it complies        this chapter.
with the rules of this section.
2.    Member States shall ensure that, in the case of             2.     Unchanged
broadcasts that do not respect these requirements, appro-
priate remedies sufficient to secure compliance with the
rules are imposed on the broadcasters concerned.
                           Article 7                                                        Article 7
1.     Broadcast advertising shall be clearly recognizable        1.     Unchanged
as such.
2.     Broadcast advertising shall be grouped in blocks           2.     Broadcast advertising shall be kept quite separate
and kept quite separate from the other programme                  from the other programme material by optical or
material.                                                         acoustic means.
3.     Broadcast advertising shall not interrupt coherent         3.     Unchanged
programme items except where the interruption does not
constitute an unreasonable interference because:
(a) the advertising is scheduled in such a way as to avoid
    prejudice to the integrity and value of programmes
     or their natural continuity;
(b) the advertising is inserted in a natural break within
     the programme; and
(c) the duration and nature of the programme is such as
     to permit that advertising break.
 ---pagebreak--- 27. 4. 88                               Official Journal of the European Communities                           No C 110/15
                     ORIGINAL PROPOSAL                                                  AMENDED PROPOSAL
                          Article 8                                                          Article 8
Broadcast advertising shall not:                                   Broadcast advertising shall not:
(a) offend against prevailing standards of decency and             (a) offend against prevailing standards of decency;
     good taste;
(b) contain any racial or sexual discrimination;                   (b) contain any discrimination on the grounds of race,
                                                                       sex or nationality;
(c) be offensive to religious or political beliefs;                (c) unchanged
(d) seek to rely on fear without justifiable reason;               (d) seek to rely on fear;
(e) encourage behaviour prejudicial to health or safety.           (e) encourage behaviour prejudicial to health or safety
                                                                       or the protection of the environment;
                                                                   (f) employ forms of expression which contravene respect
                                                                       for the dignity of women.
                          Article 9                                                          Article 9
Broadcast advertising for cigarettes and other tobacco             Unchanged
products shall be prohibited.
                         Article 10                                                         Article 10
Broadcast advertising for alcoholic         beverages   shall      Broadcast advertising for alcoholic       beverages  shall
comply with the following rules:                                   comply with the following criteria:
(a) it shall avoid anything that might prompt or                   (a) it shall avoid anything that might prompt or
     encourage childen and young persons to consume                    encourage children and young persons to consume
     alcohol;                                                          alcohol; the participation of children and young
                                                                       persons in such advertising shall be prohibited;
(b) it shall not link the consumption of alcohol to                (b) unchanged
     physical performance or to driving;
(c) it shall not create the impression that the                    (c) unchanged
     consumption of alcohol contributes to social or
     sexual success;
(d) it shall not claim that alcohol has therapeutic                (d) unchanged
     qualities or that it is a stimulant, a sedative or a
     means of resolving personal conflicts;
(e) it shall not encourage immoderate consumption of               (e) unchanged
     alcohol or present abstinence or moderation in a
     negative light;
(f) it shall not place undue emphasis on the alcoholic             (f) unchanged
     content of beverages.
                          Article 11                                                        Article 11
Broadcast advertising shall further comply with the                Unchanged
following rules for the protection of children and young
persons:
 (a) it shall not directly exhort children and young
     persons to buy a product or a service or exploit their
     immaturity of judgement and inexperience;
 ---pagebreak---  No C 110/16                            Official Journal of the European Communities                                  27. 4. 88
                        ORIGINAL PROPOSAL                                                 AMENDED PROPOSAL
 (b) it shall not encourage children and young persons to
     persuade their parents or others to purchase the
     goods or services being advertised;
(c) it shall not exploit the special trust children and
     young persons place in parents, teachers or other
     persons;
(d) it shall not unreasonably show children and young
     persons in dangerous situations.
                          Article 12                                                        Article 12
                                                                   1.    Member States shall allow the sponsorship of
                                                                  broadcast programmes.
Undertakings shall not exert improper influence over              2.     Undertakings shall not exert any de jure or de facto
parts of the programme that do not consist of adver-              influence over the programme as a whole or over parts
tising. Nothing shall be included in any broadcast adver-         of the programme that do not consist of advertising.
tising or programme which could reasonably be taken to            Nothing shall be included in any broadcast advertising or
suggest or imply that undertakings, for advertising               programme which could be reasonably taken to suggest
purposes, have influenced parts of the programme which            or imply that undertakings, for advertising purposes,
are not an advertisement. In particular,                          have influenced parts of the programme which are not
                                                                  an advertisement. In particular,
(a) programmes shall not refer to specific undertakings,          (a) unchanged
     products or services in a way not necessary for their
     content;
(b) programmes which are funded or co-funded by non-              (b) unchanged
     broadcasters shall be identified as such; however, the
     identification shall be restricted to a credit at the
     beginning and end of the programme;
(c) programmes shall not contain any promotion equi-              (c) unchanged
     valent to advertising, especially on behalf of those
     who funded or co-funded them;
(d) advertising within or around programmes shall not             (d) advertising within or around programmes shall not
     be allowed if there is any link in content or presen-             be allowed if there is any direct link in content or
     tation with the programme.                                        presentation with the programme.
                          Article 13                                                        Article 13
1.     Member States shall remain free to prohibit or             1.    As regards broadcasters under their jurisdiction,
restrict broadcast advertising on Sundays and public              Member States shall remain free to prohibit or restrict
holidays and to prohibit all broadcast advertising for            broadcast advertising on Sundays and public holidays
alcoholic beverages.                                              and to prohibit all broadcast advertising for alcoholic
                                                                  beverages.
2.     Member States shall remain free to apply more              2.     Member States shall remain free to require broad-
detailed or stricter rules with regard to Articles 7, 8 and       casters under their jurisdiction to apply more detailed or
10, 11 and 12.                                                    stricter rules than are contained in Articles 7, 8 and 10 to
                                                                  12.
                                                                  3.     Member States shall remain free not to apply
                                                                  Articles 5, 6 and 7 (2) and (3) to local broadcasts.
 ---pagebreak--- 27. 4. 88                              Official Journal of the European Communities                           No C 110/17
                      ORIGINAL PROPOSAL                                                AMENDED PROPOSAL
                         SECTION 2                                Delete
     CROSS-FRONTIER TELEVISION BROADCASTS                         Delete
                          Article 14                                                       Article 14
Member States shall admit the reception and retrans-              Each Member State shall permit the reception and
mission of advertising in cross-frontier television               retransmission of advertising in television broadcasts
broadcasts which does not exceed 15 % of the broadcast            from other Member States which does not exceed 15 %
receivable each day by the public in those Member                 per day and 18 °/o per hour of the broadcast receivable
States. Where a Member State allows one or several                by the public in that Member State. Where a Member
internal television broadcasters to carry advertising for         State allows one or more television broadcasters under
more than 15 % of daily broadcasting time, it shall               its jurisdiction to carry more advertising it shall permit
admit comparable types of cross-frontier broadcasts               an equal proportion of advertising in comparable types
which contain amounts of advertising that do not exceed           of broadcasts from other Member States.
those permitted for internal television broadcasts of the
same category.
                        CHAPTER IV
        Protection of children and young persons
                          Article 15                                                       Article 15
1.    Member States shall ensure that internal broadcasts         1.    Member States shall ensure that broadcasts do not
do not include programmes which might seriously harm              include programmes which are likely seriously to harm
the physical, mental or moral development of children             the physical, mental or moral development of children
and young persons, in particular those that involve               and young persons, in particular those that involve
pornography, gratuitous violence or incitement to race            pornography or gratuitous violence. This shall also apply
hatred.                                                           to programmes which, although not covered by the
                                                                  preceding sentence, might harm the physical, mental or
                                                                  moral development of children and young persons,
                                                                  except where it is ensured, by selecting the time of the
                                                                  broadcast or by any technical measure, that children and
                                                                  young persons cannot normally hear or see such
                                                                  broadcasts.
                                                                  Member States shall also ensure that broadcasts do not
                                                                  contain any incitement to racial hatred.
2.    They shall ensure that internal broadcasts are              2.     Member States shall ensure that programmes are
checked prior to transmission and broadcast only if they          broadcast only if they comply with the requirements
comply with the requirements under paragraph 1.                   under paragraph 1 and that, in the case of broadcasts
Member States shall ensure that, in the case of                   that do not respect these requirements, appropriate
broadcasts that do not respect these requirements, appro-         remedies sufficient to secure compliance with the rules
priate remedies sufficient to secure compliance with the          are imposed on the broadcasters concerned.
rules are imposed on the broadcasters concerned.
                          Article 16                                                       Article 16
Member States shall remain free to apply more detailed            Member States shall remain free to require broadcasters
or stricter rules for the protection of children and young        under their jurisdiction to apply more detailed or stricter
persons to internal broadcasts.                                   rules for the protection of children or young persons.
 ---pagebreak---  No C 110/18                           Official Journal of the European Communities                                27. 4. 88
                      ORIGINAL PROPOSAL                                                AMENDED PROPOSAL
                        CHAPTER V
                          Copyright
                          Article 17                                                       Article 17
Member States shall ensure that the retransmission by              1.   Member States shall ensure that the retransmission
cable in their territory of internal broadcasts from other        by cable in their territory of broadcasts from other
Member States may take place with respect for                     Member States may take place with respect for
applicable copyright and related rights, in particular on         applicable copyright and related rights, in particular on
the basis of contractual agreements between right owners          the basis of contractual agreements between right owners
and cable operators. When a cable operator retransmits a          and cable operators. To this end Member States shall
broadcast before a contractual agreement has been                 encourage negotiations between the collective bodies
reached or a statutory licence is applied, he shall be            responsible for managing copyright and related rights
subject to civil and penal sanctions provided for in the          and the cable operators with a view to the conclusion of
law of the Member State where the retransmission takes            agreements laying down the legal and financial
place sufficient to secure compliance with the rules.             conditions governing the retransmission of the
                                                                  broadcasts in question.
                                                                  2.    When a cable operator retransmits a broadcast
                                                                  before a contractual agreement has been concluded or a
                                                                  decision enabling such retransmission has been taken by
                                                                  the arbitration body specified in Article 19, he shall be
                                                                  subject to civil and penal sanctions provided for in the
                                                                  law of the Member State where the retransmission takes
                                                                  place. Such sanctions shall be sufficient te secure
                                                                  compliance with the rules.
                          Article 18                                                       Article 18
 1.   Where a cable operator notifies a Member State              1.    Where a cable operator notifies a Member State
that the simultaneous, unaltered and unabridged retrans-          that the simultaneous, unaltered and unabridged retrans-
mission by cable of an internal broadcast from another            mission by cable of a broadcast from another Member
Member State has been prevented by the invocation of              State has been prevented by the invocation of copyright
copyright or related rights, the Member State that has            or related rights, the Member State that has been so
been notified shall ensure, within a period of two years          notified shall ensure, within a period of two years from
from the notification, that the retransmission is made            the notification, that the retransmission is made possible
possible by the application of a statutory licence.               through a decision of the arbitration body specified in
However, such a statutory licence need not be granted            Article 19. However, such a decision shall not be
if, during the two-year period, the obstacle to retrans-          necessary if, during the two year period, the obstacle to
mission has been removed, in particular, by a contractual         retransmission has been removed, in particular by a
agreement between right owners and one or several cable           contractual agreement between right owners and one or
operators.                                                        more cable operators.
2.    Where the right invoked is a related right held by a        2.     Where the right invoked is a related right held by
broadcasting undertaking by virtue of the European                a broadcasting undertaking by virtue of the European
Agreement on the Protection of Television Broadcasts of           Agreement on the Protection of Television Broadcasts of
22 June 1960, and the Agreement is an obstacle to the             22 June 1960, and the Agreement is an obstacle to the
introduction of the statutory licence, the Member State           establishment of a compulsory arbitration scheme, the
shall denounce te Agreement to the extent necessary to            Member State shall adopt appropriate procedures with a
permit the statutory licence to be introduced in                  view to securing its establishment in accordance with
accordance with paragraph 1.                                      paragraph 1.
 ---pagebreak--- 27. 4. 88                               Official Journal of the European Communities                           No C 110/19
                      ORIGINAL PROPOSAL                                                 AMENDED PROPOSAL
                          Article 19                                                        Article 19
1.    The statutory licence introduced in accordance               1.    The decision taken in accordance with Article 18
with Article 18 shall secure an equitable remuneration             shall secure an equitable remuneration for the holders of
for the holders of copyright and related rights.                   copyright and related rights.
2.     In determining the remuneration, in particular all          2.    Unchanged
the following criteria shall be taken into account:
(a) the usual level of contractual         licence fees   for
    comparable cable transmissions;
(b) the usual level of remuneration paid for the first
    broadcast;
(c) the number of subscribers linked to the cable
    network and the level of fees paid by them;
(d) the likelihood and the extent of any impairment of
    other marketing opportunities, in particular the
    showing of films and the performance of dramatic or
    dramatic musical works.
3.    The remuneration        may    be  claimed    only   by      3.    Unchanged
collecting societies.
4.    In the absence of an amicable agreement, the                 Deleted
remuneration shall be determined by the competent
authority.
5.    The competent authority may be a court, an                   4.    Member States shall determine the composition of
administrative authority or an arbitration body. It shall          the arbitration body in such a way that holders of
be composed so as not to cast doubt on its impartiality.           copyright and related rights are adequately represented
It shall give reasons for its decisions. Where it is not a         thereon. It shall be so composed as not to cast doubt on
court, provision shall be made for procedures whereby              its impartiality. It shall give reasons for its decisions.
improper or unreasonable exercise of the competent                 Member States shall make provision for procedures
authority's powers or improper or unreasonable failure             whereby improper or unreasonable exercise of the arbi-
to exercise the said powers can be the subject of judicial         tration body's powers or improper or unreasonable
                                                                   failure to exercise the said powers can be subject to
                                                                   judicial review.
                          Article 20                                                         Article 20
The provisions of this chapter shall not affect the moral          Unchanged
rights of copyright owners and equivalent personal rights
of owners of related rights.
                                                                                          CHAPTER Va
                                                                                          Right of reply
                                                                                            Article 20a
                                                                    1.    Without prejudice to other provisions adopted by
                                                                    the Member States under civil or criminal law, any
                                                                    natural or legal person whose legitimate interests, in
                                                                    particular reputation and good name, have been
                                                                    damaged by an assertion of incorrect facts in a broadcast
                                                                    programme shall have a right of reply.
 ---pagebreak--- N o C 110/20                            Official Journal of the European Communities                                    17. 4. 88
                      ORIGINAL PROPOSAL                                                 AMENDED PROPOSAL
                                                                   2.     A right of reply shall exist in relation to all broad-
                                                                   casters under the jurisdiction of a Member State.
                                                                   3.     Member States shall adopt the measures needed to
                                                                   establish the right of reply and shall determine the
                                                                   procedure for the exercise thereof. In particular, they
                                                                   shall ensure that sufficient time is allowed for the right
                                                                   to be exercised effectively by natural or legal persons
                                                                   resident or established in other Member States.
                                                                   4.     An appliction for exercise of the right of reply may
                                                                   be rejected if such a reply is not justified according to
                                                                   the conditions laid down in paragraph 1, would involve a
                                                                   punishable act, would render the broadcaster liable to
                                                                   civil law proceedings or would transgress standards of
                                                                   public decency.
                                                                   5.     Provision shall be made for procedures whereby
                                                                   disputes as to the exercise of the right of reply can be
                                                                   subject to judicial review.
                        CHAPTER VI
                       Final provisions
                          Article 21                                                         Article 21
For the purpose of this Directive:                                 1.     For the purpose of this Directive:
1. 'Broadcasting' means the initial transmission or                (a) 'Broadcasting' means the initial transmission by wire
   retransmission by wire or over the air, including those              or over the air, including that by satellite, in
   by satellite, in unencoded or encoded form, of radio                 unencoded or encoded form, of radio and television
   and television programmes intended for reception by                  programmes intended for reception by the public.
   the public. Except for the purposes of Chapter V on                  Except for the purposes of Chapter V, it includes the
   copyright, it includes the communication of                          communication of programmes between under-
   programmes between undertakings with a view to                       takings with a view to their being relayed to the
   their being relayed to the public. It does not include               public. It does not include communication services
   communication services providing items of infor-                     providing items of information or other messages on
   mation or other messages on individual demand such                   individual demand such as telecopying, electronic
   as telecopying, electronic data banks and other similar              data banks and other similar services.
   services.
    'Broadcast advertising' means an announcement in any           (b) 'Broadcast advertising' means an announcement in
   form broadcast by a public or private undertaking in                 any form broadcast by a public or private under-
   connection with a trade, business, craft or profession               taking in connection with a trade, business, craft or
   in order to promote the supply of goods or services,                 profession in order to promote the supply against
   including immovable property, rights and obligations.                payment of goods or services, including immovable
   It does not include sponsored programmes.                            property, rights and obligations.
 ---pagebreak--- 27. 4. 88                               Official Journal of the European Communities                             No C 110/21
                        ORIGINAL PROPOSAL                                                   AMENDED PROPOSAL
3. 'Internal broadcasts' means initial transmission by             (c) 'Sponsoring' means any contribution made by a
   public or private undertakings engaged in broad-                     public or private undertaking not engaged in broad-
   casting on the territory of a Member State, including                casting activities or in the production of audio-visual
   transmissions exclusively intended for reception in                  works, to the financing of broadcast programmes
   other Member States. It also includes the initial                    with a view to promoting its name, its trade mark, its
   retransmission by such undertakings of broadcast                     image, its activities or its products.
   transmissions originating from an undertaking
   engaged in broadcasting on the territory of a State
   other than a Member State.
4. 'Cross-frontier broadcasts' means internal transmissions        Delete
   that can be received directly by the public in another
   Member State or by way of retransmission even
   where they are retransmitted by an undertaking estab-
   lished in the territory of that other Member State.
                                                                   2.    Member States shall take measures to establish the
                                                                   concept of the independent producer by providing
                                                                   sufficient opportunities for smaller producers and
                                                                   reserving the right to allow financial contributions by co-
                                                                   production subsidiaries of television companies.
                          Article 22                                                          Article 22
1.    Member States shall bring into force the laws,               Unchanged
regulations and administrative provisions necessary to
comply with this Directive not later than . . . They shall
forthwith inform the Commission thereof.
2.    Member States shall communicate to the
Commission the text of the main provisions of national
law which they adopt in the fields governed by this
Directive.
                          Article 23                                                          Article 23
Before the end of the sixth year after the date mentioned          Before the end of the third year after the date mentioned
in Article 22, the Commission shall submit to the                  in Article 22 and every two years thereafter, the
Council, the European Parliament and the Economic                  Commission shall submit to the Council, the European
and Social Committee a report on the manner in which               Parliament and the Economic and Social Committee a
this Directive has operated and, if necessary, make                report on the manner in which this Directive has
further proposals to adapt it to the developments in the           operated and, if necessary, make further proposals to
broadcasting field.                                                adapt it to developments in the broadcasting field.
                          Article 24                                                          Article 24
This Directive is addressed to the Member States.                  Unchanged