The Council's text
98. Perhaps the most significant of the alterations
in the revised text concerns the Country of Origin principle.
The revised text introduces new limits to the principle, set out
in article 3:
BOX 3
Article 3 of the revised draft Directive
| 1. Member States shall remain free to require media service providers under their jurisdiction to comply with more detailed or stricter rules in the areas covered by this Directive.
1a. In cases where a Member State:
- has exercised its freedom under paragraph 1 to adopt more detailed or stricter rules of general public interest; and
- assesses that a broadcaster under the jurisdiction of another Member State directs all or most of its activity towards its territory
it may contact the Member State having jurisdiction with a view to achieving a mutually satisfactory solution to any problems posed. On receipt of a substantiated request by the first Member State, the Member State having jurisdiction shall request the broadcaster to comply with the rules of general public interest in question. The Member State with jurisdiction shall inform the first Member State of the results obtained following this request within two months.
|
99. The Council's revised text adopts a concept originating
from Sweden of "mandatory co-operation" for National
Regulatory Authorities to mitigate any clashes between the rules
of the Country of Origin and Country of Destination over these
services.
100. Mrs Honeyball described the proposal
for mandatory co-operation as "probably not very sensible"
because of the burden it would put on National Regulatory Authorities
such as Ofcom to co-operate with 24, soon 26, other NRAs, all
with differing rules. (Q 397)
101. Mr Murray from the European Consumers'
Organisation (BEUC) defended the Swedish position, telling us
that "nobody would seriously argue that the restrictions
which they wish to maintain arose from a purely protectionist
instinct, to stop people buying non-Swedish goods" but from
genuine public interest grounds. But he accepted that other Member
States often present measures motivated by pure economic protectionism
as motivated by similar public interest concerns. (Q 376)
102. Article 3 of the Council text allows Member
States to block broadcasts on grounds of "general public
interest", and when "a broadcaster under the jurisdiction
of another Member State provides a television broadcast which
is wholly or mostly directed towards its territory".
Recital 11 clarifies the public interest grounds by referring
to European Court of Justice case law and states that they must
be "objectively necessary, applied in a non-discriminatory
manner, suitable for attaining the objectives which they pursue
and do not go beyond what is necessary to attain them."
103. Further restrictions to Member State action
against broadcasters from other Member States are set out in Article
2. The Member State in question must show that the broadcaster
it wishes to take action against "manifestly, seriously and
gravely infringes Article 22 (1) or (2) and/or Articles 3b;"
and has infringed at least twice in the previous 12 months. The
Member State must then inform both the broadcaster and the Commission
in writing of the actions it will take should the broadcaster
infringe again, and allow 15 days for a consultation with the
Commission and the other Member State to try to reach an amicable
settlement. Ultimately the Commission has the role of deciding
whether the measure legitimately falls under the Directive.
104. Chris Dawes from the DCMS told us that the
revised article threatened to "introduce uncertainty to industry",
although it was not necessarily "absolutely fatal to the
Country of Origin principle." (Q 178)
105. Matteo Maggiore from the BBC regarded any
step backwards from the Country of Origin principle as "tantamount
to going back to a world of erecting frontiers to the circulation
of services at a time when the potential for trans-border and
global communications is becoming greatest". He was concerned
that it would undo any benefits from the 1989 Directive. (Q 12)
106. Mr Paulger from the Commission was
forthright in telling us that he viewed the Country of Origin
principle as being absolutely central to the Directive; that the
revised article 3 was "a measure that would weaken the Country
of Origin Principle" and that the Commission "do not
like it." (QQ 336-343)
107. The Minister highlighted the inherent problem
for broadcasters in requiring them to fit the requirements of
a Country of Destination when "it is impossible for a programme
maker now anyway to imagine where a programme might be destined
for in 20 years' time and who might be watching it". (Q 178)
108. We share the considerable concern of
the majority of our witnesses over the apparent dilution of the
Country of Origin principle. We understand that the opposition
to the principle has gained momentum in many quarters of the European
Union, but view this as an obstacle to the consolidation of the
internal market.
109. We hope that the proposed monitoring
system will work effectively to prevent Member States from obstructing
audiovisual media service providers for any grounds other than
those strict public interest grounds set out.
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