What is subject to the regulatory policy

The future of European regulatory policy in the audiovisual sector

In early 2003 the Commission launched a wide public consultation on the Television without Frontiers Directive and its possible revision. The communication provides an overview of the latest developments in the audiovisual sector and analyzes the various Community measures that have an impact on this sector.

LEGAL ACT

Communication from the Commission of 15 December 2003 on the future of European regulatory policy in the audiovisual sector [COM (2003) 784 final - Not published in the Official Journal]

SUMMARY

MAJOR TRENDS IN THE AUDIOVISUAL LANDSCAPE IN EUROPE

In 2001 the European audiovisual market was close to EUR 95 billion, an increase of 5.2% compared to 2000. Of the two main industries, i. H. Television and cinema, television accounted for about two-thirds of the market in 2001 while cinema, including video, accounted for about 15% of the market. The DVD sector was the most dynamic sector: in 2002 retail sales were on par with traditional VHS cassette sales.

The development of the television market slowed down in 2001, mainly due to unsatisfactory results in traditional commercial television, which is suffering from the global crisis in the advertising market. The pay-TV sector, on the other hand, confirmed its annual growth of around 13%. Preliminary figures for 2002 confirm these trends. Digital television reached almost 18% of EU households at the end of 2002. These are mainly satellite transmissions, while transmission by cable has only established itself in a few countries.

The trade balance for the audiovisual sector remains negative, particularly for broadcasting, cinema screenings and video film distribution rights. This is due to the negative balance with the US, which in 2000 was over USD 8 billion.

Almost all EU households are equipped with one or more television sets. In terms of average daily television consumption, Austria is still the country where people spend the least amount of time in front of the screen (153 minutes), while television is the most popular in Spain (262 minutes).

The EU was able to consolidate its leading role in the production of feature films: 630 productions in 2002, while around 450 films were made in the United States. It should be noted, however, that a significant proportion of European works do not reach the "critical audience" (ie at least 100,000 admissions). In terms of financial investment, US filmmakers still have budgets many times that of EU investments Productions and the marketing effort they go into. The recent wave of European co-productions may be a response to such an imbalance (250 co-productions in 2002).

In the field of technological developments, in addition to digital television, three technical innovations could have a beneficial effect on the development of the audiovisual sector: high definition television, flat panel displays and interactive television.

POLICY MEASURES HAVING IMPACT IN THE AUDIOVISUAL FIELD

Not only do the Community support mechanisms (MEDIA program) and content regulation (Television without Frontiers Directive - see below) have an impact on the audiovisual sector. Many other Community measures also have a major impact on companies operating in the media industry. For this reason A coherent approach at Community level, taking into account all the policy areas concerned, is imperative.

The following Community policies play an important role in the development of the audiovisual sector:

Competition: The competition rules aim to prevent illegal restraints of competition and to ensure conditions for fair competition without distorting the internal market. According to the EC Treaty, state aid, which affects competition by giving preference to certain companies, is prohibited. However, state aid for "services of general interest", including public service broadcasting, is allowed. In this context, a Commission communication of November 2001 set out the criteria for the application of the competition rules in public service broadcasting In a further communication on the film industry in September 2001, the Commission published the criteria for the compatibility of state aid for cinema and television productions with the EC Treaty.

Media pluralism: The pluralism of the media is generally secured by limiting the maximum participation in media companies; In addition, the cumulative control or simultaneous participation in several media companies is prevented. It is about protecting freedom of expression and reflecting diversity of opinion in the media. The Commission's Green Paper on Services of General Interest of May 2003 indicates that the protection of pluralism in the media is primarily a matter for the Member States. At present there are no relevant provisions in Community law. However, some Community acts contribute more or less indirectly to maintaining media pluralism. These are Community competition law and certain provisions of the "Television without Frontiers" Directive (provisions for the promotion of European works and works by independent producers).

Copyright: The relevant legal framework is provided by Directive 2001/29 / EC on the harmonization of certain aspects of copyright and related rights in the information society. Recently the Council and Parliament adopted a directive on measures and procedures for the protection of intellectual property rights. The aim is to harmonize national laws protecting intellectual property rights and create a general framework for the exchange of information between the competent authorities of the Member States.

Electronic communications networks and services: In 1999, the Commission launched a major overhaul of existing EU telecommunications law in order to stimulate competition and better adapt the sector to technological advances and market demands. This work resulted in the adoption in 2002 of a new legal framework for electronic communications (applicable from July 2003). The aim of the e-commerce directive, adopted in 2000, is to harmonize certain aspects so that information society services can fully benefit from the internal market.

Consumer protection: The audiovisual sector, like other economic sectors, is subject to Community consumer protection legislation. These include the general provisions on misleading advertising and the recent proposal for a framework directive on unfair business-to-consumer business practices.

Trade policy: In the last round of multilateral trade negotiations ("Uruguay Round"), the European Community and its Member States made no concessions or made use of exemptions for audiovisual services under the most favored nation clause The possibility is preserved, on the one hand, to maintain national and Community measures and, on the other hand, to develop national and Community strategies and instruments in view of the developments in this sector.

RESULTS OF THE CONSULTATION ON THE TELEVISION DIRECTIVE

The "Television without Frontiers" directive (the so-called television directive) is the cornerstone of the audiovisual policy of the European Union. It defines the minimum standard that Member States' regulation of the content of television programs must ensure. This minimum standard essentially includes the obligation to

  • Measures to promote the production and distribution of European television programs;
  • Consumer protection measures with regard to advertising, sponsoring and teleshopping, including with regard to unfair business practices;
  • Measures to ensure that events of material importance to society are not broadcast on an exclusive basis in a way that prevents significant parts of the public from being able to see the event;
  • Measures for the protection of minors and public order;
  • Measures to safeguard the right of reply.

The majority of the contributions received by the Commission in the context of the consultation agree that the legal framework of the Television Directive is fit for purpose and that the Directive is an essential element in facilitating the free movement of television services within the EU. The main results of the consultation are as follows:

- While most Member States felt that the rules were doing the job, other Member States, as well as consumer organizations, expressed concern about the diversity of national laws and the risk that broadcasters could establish themselves in Member States with the most liberal legislation.

- The problem of 'advertising windows' has also been raised by some Member States. This is the practice of broadcasters of broadcasting a program that is actually aimed at the audience in the country of origin in another country - mostly in the neighboring country - using the original advertising windows be replaced by ones specifically tailored to the target audience of the other country. Although this practice is in line with the principle of freedom to provide services or freedom of establishment, as pointed out by the Court, it is due to the distortions of competition it causes and the threat it poses to pluralism and cultural diversity.

- Right to information (events of major social importance): the consultations revealed that there is no urgent need to revise this provision of the directive. Although the contributions contained various suggestions for improvement, there was no consensus as to whether the term "significant part of the public" should be defined at European level or whether the reference dates in the directive should be changed.

- Production quotas and transmission times: the majority of the contributions were in favor of the status quo with regard to the promotion of European works (Article 4). Some called for the rules to be strengthened, others suggested that the current rules be replaced by other instruments (e.g. investment commitments or special support programs for European productions). As regards quotas for European productions (Article 5), the status quo is widely supported. Nonetheless, several stakeholders came out in favor of introducing a harmonized definition of "independent manufacturers".

- Advertising and sponsorship: Most of the contributions are in favor of keeping the existing rules. However, some advocate simplifying the rules on the insertion of advertising and teleshopping spots, especially with regard to sports programs and the 20-minute interval between commercial breaks. The ban on television advertising for tobacco products and prescription drugs is also generally supported. Some relaxation of the rules on duration is seen as necessary by several Member States, by most commercial television networks and by some advertising agencies. With regard to the new advertising techniques, a large number of participants expressed the wish that the Commission would clarify the modalities for the application of the provisions of the Directive to these new techniques.

- Protection of minors: All in all, the actors concerned agree that the provisions of the Directive on the protection of minors are satisfactory and appropriate. However, some have suggested that enforcement of these regulations could become increasingly difficult, especially in an online environment.

THE NEXT STEPS

Based on the results of the consultation process, the Commission concludes that there is currently no urgent need to review the Directive.

In the medium term, however, the Commission is of the opinion that a fundamental revision of the directive might be necessary in order to take account of technological developments and structural changes in the audiovisual market. With a view to a possible revision, the Commission will take a two-step approach.

Short term

In the short term, the Commission intends to adopt an interpretative communication on television advertising. In particular, this communication is intended to clarify the extent to which the current directive applies to new advertising techniques and, in this respect, to provide more legal certainty. The Commission will also update the Recommendation on the protection of minors and human dignity.

Medium term

In the medium term, a number of questions will require more in-depth considerations as to what a change in the TV Directive might entail at a later stage. These questions are examined by the Commission either with the help of experts or through independent studies. The following topics should be discussed:

  • Regulation of audiovisual content;
  • Degree of detail in regulation in advertising area;
  • Right to information and right to short reporting.

The studies should deal with the following aspects:

  • Comparative study of the impact of regulatory measures on television advertising markets in Member States and some other countries;
  • Study on the impact of measures to promote the distribution and production of television programs in accordance with the television directive;
  • Study on co-regulatory measures in the media sector;
  • Study of the regulatory treatment of interactive television.

FURTHER MEASURES IN THIS FIELD

Interpretative communication from the Commission on certain aspects of the provisions of the Television without Frontiers Directive on television advertising [COM (2004) 1450 - Official Journal C 102 of 28.4.2004]

The aim of this communication is to clarify how the provisions of the television directive apply in particular to certain forms and techniques of advertising, such as split-screen technology and interactive and virtual advertising. The communication states that the new advertising techniques and forms are not a priori incompatible with the directive. It explains to what extent their use is compatible with the existing legal provisions.

Proposal for a recommendation of the European Parliament and of the Council of 30 April 2004 on the protection of young people, human dignity and the right of reply with regard to the competitiveness of the European audiovisual media and the European information services industry [COM (2004) 341 final - not in the Official Journal released].

This proposal is intended to complement Council Recommendation 98/560 / EC, which addresses the same issue, taking into account recent technological developments and the changing media landscape. It is devoted to the following four aspects: right of reply in all media, responsible use and education, combating discrimination, evaluation or classification of audiovisual content.

Last change: June 28, 2004