Annexes to COM(2009)309 - Seventh Report from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions on the application of Directive 89/552/EEC "Television without Frontiers"

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dossier COM(2009)309 - Seventh Report from the Commission to the European Parliament, the Council, the European Economic and Social Committee and ...
document COM(2009)309 EN
date June 26, 2009
agreements relating to the audiovisual sector and under the conditions laid down in each of such agreements.

2.5. Application of the rules on advertising (Articles 10 to 20)

In its ruling regarding the classification of a phone-in programme broadcast by national public Austrian broadcaster ÖRF[14], the Court explained that ‘teleshopping’ or ‘television advertising' should be assessed at national level but it provided guidelines to assist with the interpretation of both concepts and their application.

Accordingly, for phone-ins to qualify as teleshopping, viewers must be provided with a real offer of services, this being determined by reference to several criteria, such as the length of time devoted to the game, the amount of income generated by premium-rate calls, and the type of question which the candidates are asked.

For phone-ins to qualify as television advertising, adverts inviting viewers to play the game must seek either to encourage viewers to buy the goods and services presented as prizes to be won or to promote the merits of the channel of the broadcaster in question indirectly in the form of self-promotion.

In 2007 and 2008, following the reports delivered to the Commission by an independent consultant, concerning the application of the rules on advertising by the Member States, two infringement procedures were initiated, against Italy and Spain. The infringement procedure against Italy was launched regarding insertion rules and the maximum duration of advertising. Several instances of failure to transpose the rules on advertising within Italian national law were also identified. On 12 December 2007, the Commission sent a letter of formal notice to Italy.

The Italian law was amended in order to guarantee the efficiency of the sanctioning procedure[15] and to respect the insertion rules for advertising.

The Italian regulator AGCOM also amended the Italian regulation on advertising by two decisions[16] [17], one on the minimum duration of teleshopping windows and self-promotion and the other including teleshopping spots in the hourly advertising limit[18]. It also adopted an interpretative communication on advertising[19].

The report concerning Spain revealed several major and persistent possible breaches of the hourly advertising limit. On 11 July 2007 a letter of formal notice was sent to Spain[20] and on 6 May 2008 the Commission issued a reasoned opinion against Spain[21]. On 27 November 2008 the Commission decided to bring the case before the Court of Justice. The Spanish authorities and the Commission differ on the interpretation of the notions of "spot advertisement" and "others forms of advertising", these notions being essential for the implementation of the hourly limit rules. Indeed, Spain's interpretation excludes several types from the hourly limit such as telepromotion spots, micro-ad spots and short reports having the objective of advertising[22]. Although these types all have, in the Commission's view, the characteristics of advertising spots, they are subject to a separate hourly limit defined in national law.

New rules introduced by Directive 2007/65/EC (new Articles 1(h), 1(m) 3e, 3f, 3g, 10, 11, 18, 18a)

Directive 2007/65/EC introduces the general concept of audiovisual commercial communication and provides for a basic tier of rules on audiovisual commercial communications in all audiovisual media services.

As regards advertising, the daily ceiling on time devoted to advertising is withdrawn but the ceiling of 12 minutes per clock hour is kept. The former 20-minutes rule between each advertising break no longer applies. However, a specific regime of a single advertising break per scheduled period of 30 minutes still applies to cinematographic films, films made for television and news programmes.

Product placement is regulated for the first time. As a matter of principle, product placement is prohibited but may be admissible in some programmes: cinematographic works, films and series made for audiovisual media services, sports programmes and light entertainment programmes unless a Member State decides otherwise. Product placement consisting in the provision of goods or services for free such as production props or prizes is allowed in all types of programmes. Where it is allowed, product placement, whether paid or not, must comply with certain rules, such as respect for the responsibility and editorial independence of the media service provider, the absence of encouragement to buy or rent the goods or services concerned, the absence of undue prominence and the obligation to inform viewers of the existence of product placement. In any event, product placement for tobacco products (and from their companies) and for medicinal products or medicinal treatments under prescription is prohibited.

Lastly, Member States are asked to encourage the development of codes of conduct by audiovisual media services providers regarding inappropriate audiovisual commercial communications in children's programmes for sweet, fatty or salty foods or drinks.

2.6. Protection of minors and public order (Articles 2a, 22 and 22a /new Articles 2a, 22 and 3b)

Following three complaints from the Turkish Radio and Television Supreme Council (RTSC), the Danish Radio and Television Board (RTB) ruled in May 2007 that the programmes of the Kurdish broadcaster ROJ TV contained no incitement to hatred.

In June 2008, the German Government banned all activities of ROJ TV in Germany for breaching criminal law through its support of the terror-listed PKK (Kurdistan Workers Party). ROJ TV was also deemed to oppose the promotion of friendship between nations, endanger public security and public order, and violate human dignity.

In November 2008, the German Government banned all activities of Al Manar TV in Germany after having found that "The purpose and activity of Al-Manar TV is to support, advocate and call for the use of violence as a means to achieving political and religious aims". The ban goes beyond the prohibition of broadcasting and retransmission and covers all forms of support for the channel. However, since Al Manar TV does not fall under the jurisdiction of any Member State, the provisions of the TWFD do not apply to this service.

In December 2008, the French CSA ( Conseil Supérieur de l'Audiovisuel ) requested the satellite operator Eutelsat to stop the infringement of the French regulation implementing the TWFD by the Palestinian broadcaster Al-Aqsa TV, as the CSA found incitement to hatred in some of the programmes broadcast.

New rules introduced by Directive 2007/65/EC (new Article 3h)

Directive 2007/65/EC introduces a provision on the protection of minors as regards on-demand services, thereby ensuring that audiovisual media services whose content might seriously impair the physical, mental or moral development of minors are only made available in such a way that normally prevents minors from hearing or seeing such on-demand audiovisual media services[23].

2.7. Coordination between national authorities and the Commission

2.7.1. Contact Committee[24] meetings

Meetings of the Contact Committee took place on 20 November 2007 (25th meeting), 19 February 2008 (26th meeting), 16 April 2008 (27th meeting), 18 June 2008 (28th meeting) and 16 December 2008 (29th meeting). The minutes of these meetings are posted on the Commission’s website[25].

The Committee followed closely the process of transposing the newly adopted Directive in the Member States. It discussed all the new provisions with regard to possible implementation issues like future transparency requirements and reporting obligations. Delegations also agreed on a procedure to ensure non-disruptive implementation of the changed subsidiary jurisdiction criteria.

2.7.2. Regulators ' meetings

Meetings with the regulators took place on 30 October 2007 and on 4 July 2008. The main purpose was to have an exchange of views on the new provisions contained in the now re-named AVMSD and to update regulators through discussions held with the Contact Committee. The Commission also attended as observer the European Platform of Regulatory Agencies (EPRA) meetings. Article 23b of the AVMSD reinforces the obligation of cooperation between Member States and between them and the Commission through their respective competent independent regulatory bodies.

3. INTERNATIONAL ASPECTS

3.1. Enlargement – prospects

Croatia, Turkey and the Former Yugoslav Republic of Macedonia are candidate countries for membership of the European Union. After the alignment of Croatian legislation with the TWFD, the Council of the European Union provisionally closed Chapter 10 of the accession negotiations on information society and media on 18 December 2008. The Council decided to open the same chapter in the accession negotiations with Turkey on the same date on the basis of the compromise alignment of Turkish audiovisual legislation with European audiovisual legislation.

As regards the countries of the Stabilisation and Association process (Albania, Bosnia and Herzegovina, Montenegro and Serbia as well as Kosovo under UN Security Council Resolution 1244/99), the Commission is pursuing a strategy for the convergence of their audiovisual policies with European media standards, in cooperation with the Council of Europe. The Commission monitors the process, paying particular attention to the development of administrative and judicial capabilities .

3.2. International framework for cultural diversity

The Community has been taking steps to implement the UNESCO Convention on the protection and promotion of the diversity of cultural expressions in its policies. By extending the definition of European works to works co-produced in the framework of agreements related to the audiovisual sector concluded between the Community and third countries, the AVMSD increases openness to international cooperation, with the aim of fostering cultural diversity through enhanced opportunities for the circulation of audiovisual works. The Cultural Cooperation Protocol of the Economic Partnership Agreement, signed with 14 Caribbean countries of the CARIFORUM group[26] in October 2008, is the first agreement where this approach has been implemented.

3.3. Cooperation with the Council of Europe

On 14 May 2007, the European Commission and the Council of Europe presented a review on the draft digital broadcasting law of Albania.

On 28 April 2008, the European Commission in cooperation with the Council of Europe and OSCE organised an expertise workshop on the independence of media and telecoms regulatory authorities in Sarajevo (Bosnia and Herzegovina).

On 1 and 2 December 2008, the European Commission invited media stakeholders of the Western Balkans countries and Turkey to a seminar in Istanbul on the AVMSD and the digitalisation of television[27].

4. Next report

Article 26 of the re-named AVMSD stipulates that no later than 19 December 2011, and every three years thereafter, the Commission must submit to the European Parliament, the Council and the European Economic and Social Committee a report on the application of this Directive and, if necessary, make further proposals to adapt it to developments in the field of audiovisual media services, in particular in the light of recent technological developments, the competitiveness of the sector and levels of media literacy in all Member States[28]. The report should also assess the issue of television advertising accompanying or included in children's programmes, and in particular whether the quantitative and qualitative rules contained in the Directive have afforded the level of protection required. Therefore, the Member States will have to report to the Commission regarding these various issues. Furthermore, the accessibility of audiovisual media services to people with a visual or hearing disability and the co- and self-regulatory regimes should also be referred to.

5. Conclusions

This report demonstrates that the Television without Frontiers Directive continues to function as an effective tool to ensure the free circulation of broadcasting services whilst guaranteeing an appropriate level of consumer protection and promotion of European works. The infringement procedures in connection with application of the advertising rules demonstrate the need for close monitoring. However, as stated in the previous report, the legal framework needed to be revised in order to address technological evolution and changes in the market. The adoption of Directive 2007/65/CE, amending substantially the TWFD and modifying its title, responds to these various issues. The adequacy of this new instrument will continue to be monitored and will be addressed by the Commission in coming reports.

[1] OJ L 298, 17.10.1989, p. 23.

[2] OJ L 202, 30.7.1997, p. 60.

[3] It follows the sixth application report (COM(2007) 452 final).

[4] See article 1 of Directive 2007/65/EC: " Directive 89/552/EEC is hereby amended as follows: 1. the title shall be replaced by the following: "Directive 89/552/EEC of 3 October 1989 of the European Parliament and of the Council on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services (Audiovisual Media Services Directive)".

[5] European Audiovisual Observatory, Yearbook 2008

[6] European Audiovisual Observatory, MAVISE database.

[7] Directive 2000/31/EC Recital (57): The Court of Justice has consistently held that a Member State retains the right to take measures against a service provider that is established in another Member State but directs all or most of his activity to the territory of the first Member State if the choice of establishment was made with a view to evading the legislation that would have applied to the provider had he been established on the territory of the first Member State. See notably cases C-212/97, Centros, 9 March 1999, and C-196/04, Cadbury, 12 September 2008.

[8] See 2.7.1

[9] Case T-33/01, Infront WM AG /Commission, 15 December 2005.

[10] OJ, C 17 of 24 January 2008, pages 7-10.

[11] Case C-125/06, 13 March 2008, Commission/Infront WM AG.

[12] Cases T- 385/07, T-55/08 and T-68/08.

[13] Article 3i(1).

[14] C/195-06, Kommunikationsbehörde Austria (KommAustria)/Österreichischer Rundfunk (ORF),18 October 2007.

[15] http://www.parlamento.it/leggi/08101l.htm#conve.

[16] http://www.agcom.it/provv/d_162_07_CSP.htm.

[17] http://www.agcom.it/provv/d_12_08_CSP.htm.

[18] http://www.agcom.it/provv/d_133_08_CSP.htm.

[19] http://www.agcom.it/provv/d_211_08_CSP/d_211_08_CSP.htm.

[20] http://europa.eu/rapid/pressReleasesAction.do?reference=IP/07/1062&format=HTML&aged=0 &language=EN&guiLanguage=en

[21] http://www.europa.eu/rapid/pressReleasesAction.do?reference=IP/08/700&format=HTML&ag ed=0&language=EN&guiLanguage=en

[22] In Spanish, micro-espacios publicitarios and publireportages.

[23] Other actions taken in the field of the protection of minors include a Communication on the protection of minors, in respect of the use of video games adopted by the Commission on 22 April 2008 (COM (2008) /0207 final, 22.04.2008). The Communication addresses several issues including the adoption by the Member States of the PEGI and PEGI On-line rating systems.

[24] Pursuant to Article 23a of the Directive, a contact committee composed of the representatives of the competent authorities is established under the aegis of the Commission. Its tasks are a.o to discuss issues regarding the implementation of the Directive.

[25] http://ec.europa.eu/comm/avpolicy/reg/tvwf/contact_comm/index_en.htm.

[26] i.e. all the Caribbean states (except Haiti) which are members of CARICOM (Antigua & Barbuda, Bahamas, Barbados, Belize, Dominica, Grenada, Guyana, Jamaica, Montserrat, St. Kitts & Nevis, Saint Lucia, St. Vincent & The Grenadines, Suriname, Trinidad & Tobago) and the Dominican Republic. The Agreement was signed on 15 October 2008 with 13 of these countries. Guyana signed the Agreement on 20 October 2008.

[27] http://ec.europa.eu/avpolicy/ext/enlargement/index_en.htm

[28] To this end, a study to develop criteria for assessing media literacy levels has been launched. The contract was signed in October 2008 and the final report is due in July 2009.