Memorandum by Prof Michael Holoubek, Institute
for Austrian and European Public Law, Vienna University of Economics
and Business Administration
To understand the relevance and impact of the
proposal of the European Commission's future "Audiovisual
Media Services Directive" (AMS-Directive) in full, it's necessary
to look at the broader context of European audiovisual media regulation,
the future AMS-Directive will be part of. The main purpose of
this paper is, thus, to give a brief outline on the general system
of European content regulation and to draw from this some conclusions
regarding the scope, the basic features and regulatory approach
of the AMS-Directive.
THE EC NETWORK
REGULATION SYSTEM
FOR AUDIOVISUAL
MEDIA SERVICES
Audiovisual media services are in many respects
subject to Community level policy-making. There are a number of
interconnected regulation areas. Together they form a network
of regulation systems that determines the framework under which
the content industry has to act. This network system is built
of firstly, numerous funding programmes established under the
Community policies focusing on the content industry and in particular
the audiovisual media industry (ie Media Plus and Media Training,
Culture 2000-07, eContentplus etc). Secondly, the EC Treaty, and
here especially the fundamental freedoms, the culture exemption
clause [Article 87 (3) (d) EC] and the EC general competition
rules, tax law measures, and the law of copyrights and related
rights constitute in a horizontal way essential guidelines and
rules for the sector. And finally, sector-specific provisions
have been developed for the audiovisual media industry, (a) at
the infrastructure level (with the 2002 regulatory package for
the communication infrastructures) and (b) at the content level.
Besides the AMS directive, which shall constitute in future a
coherent regulatory framework for all audiovisual media services
(currently the TWF directive covers only broadcast services in
a narrow sense), the e-Commerce Directive, too, contains such
content related sector-specific rules, namely for the so called
information society services, the non linear audiovisual media
services form a subcategory of.
The EC network regulation system for the audiovisual
media services at a glance
REALISATION
OF CULTURAL,
DEMOCRATIC AND
SOCIAL POLICY
GOALS
It is important to realise that within this
network of regulations that determine the EC framework for the
audiovisual media industry, apart from the funding programmes
as soft law measures (ie subsidies) only the AMS-Directive as
hard structure regulation formulates interventions in the audiovisual
sector at EC level that also aim at the realisation of certain
cultural, democratic and social policy goals in this area. By
providing the necessity for standards with regard to the protection
of minors, hate speech etc on Member State level and by providing
minimum standards in the field of programming quotas, advertising
etc it constitutes a special "economic-cultural" regulatory
approach at European level for the audiovisual media services.
In contrast, all the other above mentioned regulatory areas governing
the audiovisual industry and in particular also the e-commerce
Directive follow a purely "economic" regulatory approach;
ie they focus on the establishment on an "economic"
market model for the audiovisual media industry by providing only
rules safeguarding functioning market structures in this industry
sector. Objectives of a cultural, democratic or social nature
are merely seen as external objectives left (via specific exceptions
from the economic market structure regulation at EC level) to
the discretion of the Member States.
EUROPEAN CULTURAL
POLICY MODEL
The fact that Community law enables the Member
States—via specific exceptions and authorizations—to
lay down structural rules of a cultural and democratic policy
nature, but fails to define them even in the form of minimum standards,
has one consequence well-known from the application of the dogma
of fundamental freedoms: due to the country-of-origin principle
governing large parts of the EC market structure regulations,
MS regulations motivated by cultural and other public interest
objectives get under pressure by the economic principles of the
single market. The consequence is that uncoordinated structural
regulations on the part of Member States and the relevant political
decisions typically finally either have no effect at all or become
subject to such economic pressure that their special cultural
or social regulatory approach loses its persuasiveness. From this
it follows, if we assume that audiovisual media services shall
not be regulated only by economic criteria, that structural regulatory
interventions aimed at giving the market model a certain cultural,
democratic and social policy dimension will have to be defined
and coordinated at EC level. In particular under globalized competitive
conditions, de facto only a European cultural policy model,
but not isolated steps taken by individual Member States will
stand a chance of success and assert itself in global competition.
"ECONOMIC-CULTURAL"
REGULATORY APPROACH
OF THE
AMS-DIRECTIVE
Before this background we see all the more clearly
the special importance that attaches to the Commission's proposal
for a revised TWF directive, according to which all audiovisual
media services shall be subjected to a combined specific "economic-cultural"
regulatory approach. First, it is capable at European level of
asserting itself against other purely economic orientated regulatory
approaches. Second, by defining criteria for an appropriate balance
between economic and cultural aspects to be followed European-wide
while leaving at the same time an adequate margin of appreciation
to the Member States, it also provides the right basis, ie, the
necessary back up provisions, on which Member States regulations
motivated by cultural and other public interest objectives in
this sector can stand a chance against the economic principles
pursued by European economic integration. To put it short, the
specific regulatory approach of the future AMS-Directive ensures
and allows for the effective realisation of cultural and other
public interest objectives as with regard to audiovisual media
services in Europe. By contrast, the other regulatory areas relevant
for the audiovisual media services, especially also the e-commerce
Directive only allow for regulatory interventions on economic
grounds. Even if the audiovisual media services are currently
excluded from the strict country-of-origin principle of the e-commerce
Directive, without common coordinating guiding principles special
MS regulations for audiovisual media services will not be able
to assert themselves against the general economic principles of
the e-Commerce Directive).
SCOPE OF
THE AMS-DIRECTIVE
The question of the scope of the AMS-Directive
and in particular the question, whether non linear audiovisual
media services shall be included, is a crucial one, as this question
in particular also determines whether the specific combined economic-cultural
regulatory approach of the AMS-Directive or the purely economic
approach of the e-Commerce Directive and the other regulatory
areas applies to a service. Here again it has to be stressed that
not including a service in the scope of the AMS-Directive does
not mean that they are left unregulated at European level and
thus fall in the exclusive competence of the Member States, but
that they are subjected under the economic regulatory regime of
the e-Commerce Directive and the other horizontal measures at
EC level relevant for the audiovisual industry.
In light of these considerations the extension
of the scope of the planned AMS-Directive to cover all audiovisual
media services and thus to opt for a special cultural approach
for all of these services has to be seen as an appropriate step.
With this extension audiovisual media services that are currently
excluded from the strict country-of-origin principle of the E-Commerce
Directive, will be in future subjected to the country-of-origin
principle of the AMS-Directive, which narrows the margin for Member
States to intervene with transboundary services and thus have
a deregulatory effect on this sector, guaranteeing the maintenance
of the single market. At the same time the application of the
country-of-origin principle of the AMS-Directive is backed up
by arguments in favour of the promotion of democracy and cultural
policy including the explicitly laid down authorization of Member
States to provide for further measures in regard of media service
providers subject to their jurisdiction, which in turn guarantees
the Member States competences in this field. In this context it
is also to stress that the current regulatory structure of the
AMS-Directive to define as with regard to cultural matters the
essential goals and guidelines but to leave the definition of
the instruments by which these goals are to be achieved to the
Member States is an appropriate one. For example, it's better
to decide at Member States level whether a co-regulation system
for, eg the protection of minors, shall be implemented than at
EC level, as it very much depends on the specific national regulatory
tradition whether such a system will work or not.
TECHNOLOGY-NEUTRAL
FUNCTIONAL CRITERIA
For the lack of alternatives there are also
good reasons to apply technology-neutral functional criteria that
focus on the cultural and democratic importance of the audiovisual
media services to define the scope of the directive and especially
to draw the line between linear and non linear services. It fits
the entire regulatory environment, because it harmonizes with
the same functional, technology-neutral approach that is used
regarding the European communications infrastructure regulation
and it is in accordance with the principal task of the "ams
directive" as the sector-specific European regulation at
content level and its cultural and democratic market regulatory
model. And backed up with a catalogue of examples of linear, respectively
non linear services, which could be provided by soft law measures
(eg, recommendations or guidelines by the Commission), the Member
States' legislators, their courts and the European Court will
be capable to deal with.
3 October 2006
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