3RD REPORT: TELEVISION WITHOUT FRONTIERS
Letter from Margot Wallström, Vice-President
of the European Commission to the Chairman
Thank you once again for your opinion on the
Commission Proposal for a Directive of the European Parliament
and of the Council amending Council Directive 89/552/EEC Television
without Frontiers).
I am pleased to inform you that further to the
adoption of the common position at the Education, Youth and Culture
Council on 24 May, the Commission had sufficient elements to give
a detailed reply to your opinion, which I enclose.
Let me reiterate that the Commission appreciates
the opportunity to respond to comments of national parliaments
on Commission's legislative proposals. It contributes to visible
improvement of the process of policy formulation. I hope you will
find our response valuable to your own deliberations.
I look forward to developing our policy dialogue
further.
1 October 2007
COMMISSION RESPONSE
1. INTRODUCTION
On 20 February 2007 the House of Lords EU Committee
(hereafter "the Committee") submitted its conclusions
and recommendations with regard to its report on the Audiovisual
Medias Services Directive (AVMSD) to the European Commission.
In a preliminary reply the Commission answered that, with regard
to the Council Presidency's declared intention to reach a political
agreement at the relevant Council meeting in May, would be in
a much better position to give a substantive reply to the EU Committee's
observations on the basis of a stabilised legislative text.
Subsequently, the Council unanimously adopted
a political agreement with a view to a common position at the
Education, Youth and Culture Council on 24 May 2007. The text
of the agreement was pre-negotiated with the European Parliament.
It thus enables an early second reading adoption. The new Directive
is, therefore, expected to enter into force before the end of
the year. Member States then will have two years to transpose
it.
II. THE COMMITTEE'S
RECOMMENDATIONS
1. Scope
The Committee recognised that changes have taken
place in the sector, and are continuing to take place, and accepted,
as did all those who gave evidence, that reform of the Directive
was needed. The Committee already welcomed the clarification of
the scope in the revised proposal and the exclusion of electronic
versions of newspapers and magazines. However, the Committee was
concerned that identifying some media services as "television-like",
may lead to the conclusion that "like-services" should
be regulated in a "like-manner", i.e. a perfectly "level
playing field". It was requested, that if these services
were to be included at all, that they be regulated differently.
One of the main reasons for the revision of
the Directive was to bring it into line with the changes in the
media landscape and to give it a broader scope than the current
framework. To be future proof, an amended Directive needs to take
into account that audiovisual services will increasingly be delivered
on-demand and therefore in a non-linear mode. The original definition
in Article 1, with its six criteria, was designed to cover television
and television-like services. The discussions in Council and in
Parliament have led to a number of amendments which have clarified
and improved this definition. The greater emphases given to "editorial
responsibility" as well as the introduction of a definition
of "programmes" ensure that there is no doubt about
which television and which on demand services are covered. The
new presentation of the Articles and the introduction of Chapters
II.a and II.b headed, Provisions applicable to all audiovisual
media services and Provisions applicable only to on-demand
services, make it clear that on-demand services are only subject
to a basic tier of rules. These provisions concern fundamental
transparency requirements, the protection of minors, incitement
to hatred and some qualitative rules for commercial communication.
Different, and more extensive, rules are provided in the specific
sections of the Directive for television (ie broadcast) services.
2. Country of Origin principle
The Committee was worried about an "apparent
dilution of the Country of Origin Principle" as the result
of the concerns, expressed by some Member States, that the application
of the Country of Origin principle could have some unwanted [sic].
The Commission considers that the procedural provisions in text
agreed by Council and Parliament, while taking account of the
concerns expressed, fully safeguard the "country of-establishment"
principle. As concerns stricter national rules (Art 3), the Audiovisual
Media Services Directive provides a new procedure regarding broadcasters
possibly circumventing the stricter rules of a Member State having
availed itself of the faculty to adopt such rules that are compatible
with Community law. The Commission is confident that the first
stage of the procedure, consisting of cooperation between the
Member States concerned on a "best endeavours" basis,
will enable most difficulties to be solved at an early stage.
Should the non-binding cooperation stage fail, a second, formal
stage would begin, where the Commission would play its role according
to the new procedure set in place, which is to examine the compatibility
of the Member State's proposed measures with Community law. If
the proposed measures are deemed by the Commission not to be compatible
with Community Law, the Member State concerned must refrain from
taking them.
3. Quantitative rules on advertising
The Committee explained that in an increasingly
competitive environment, consumers would be able to determine
themselves the volume of advertising which they find acceptable.
The Committee was concerned about some of the possible impacts
of these rules, especially the proposed 30 minute rule, for free
to air programming, particularly children's programming. Technological
progress together with changes in the market and user behaviours
(increased choice and responsibility) necessitate greater flexibility
with regards advertising rules while providing for a high level
of consumer (ie viewer) protection. The AVMSD achieves this:
— Firstly, by relaxing rules on the
insertion of advertising in TV programmes and daily advertising
limits, while also providing flexibility for new forms of advertising
such as split-screen, virtual or interactive advertising. This
will benefit not only advertisers but the whole audiovisual industry
in Europe, by strengthening its economic base.
— Secondly, providing a clear legal
framework for product placement will secure new revenues for Europe's
audiovisual industry, help to boost Europe's creative economy
and thus reinforce cultural diversity. Product placement is a
reality on European TV screens today, but operates essentially
for the benefit of non-European production and without viewers
being informed.
The Commission considers that the solution reached
with respect to advertising during children's programmes strikes
the right balance between the protection of children and the need
for broadcasters to obtain sufficient resources from advertising
in order to finance these programmes.
4. Self-regulation
The Committee strongly welcomed the inclusion
of co- and self-regulation in the body of the revised text of
the Directive. This has been done in Art 3(3) of the political
agreement with a view to a common position.
5. Impact Assessment
Though the Committee accepted the Commission's
argument that there are practical difficulties in quantifying
how many companies will be affected by this Directive, partly
because the proposal is designed to regulate according to the
type of service, rather than the type of provider, the Committee
asked to obtain cost estimates in respect of specific provisions
within the proposal. As an example, the Committee referred to
the quantitative rules governing the timing of advertising slots;
the so called "35- (now 30-) minute rule".These should
have direct measurable consequences in terms of a reduction
in the amount of revenue that can be expected to be obtained
by broadcasters. (Para 178)
In the Commission's view it is difficult to
imagine a case where the new Art 11(2) would have measurable consequences
in terms of a reduction in the amount of revenue that can
be expected to be obtained by a broadcaster. Not only do the new
rules give greater flexibility to broadcasters as to when they
are allowed to insert advertising during the programme, they also
allow for more advertising breaks during a shorter scheduled duration.
According to the current rules cinematographic works for instance
may carry three advertising breaks up to a scheduled duration
of 154 minutes. According to the new rules a scheduled duration
of 150 minutes, however, allows five advertising breaks.
The last issue raised by the Committee concerns
the fact that no impact assessment has been carried out on the
revised texts emerging progressively from the co-decision procedure.
Neither the Council nor the European Parliament have the obligation
to carry out impact assessments on texts as they emerge from the
successive stages of the co-decision procedure nor do they have
such a practice. This is a horizontal issue where the potential
advantages of additional procedures would have to be carefully
balanced with the risk of unduly delaying the adoption of necessary
legislation.
III. CONCLUSION
The agreement between European Parliament and
Council, which is explicitly supported by the three largest political
groups in the European Parliament and unanimously within the Council,
takes account, to a large extent, of the Committee's recommendations.
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