Wednesday 6 January 2010

EU Audiovisual Media Services Directive proposal: Structure and essentials

Our latest blog post on European level audiovisual rules was published last year – such a long time ago - and it tried to use this example to show how we are able to follow all the official stages from an original proposal to the final legislative act, published in the Official Journal of the European Union: History of EU Audiovisual Media Services Directive (Following a legislative procedure) (31 December 2009).

The AVMS Directive 2007/65 was originally based on the Commission’s proposal COM(2005) 646 final, and key to the whole legislative procedure was Oeil, the Legislative Observatory of the European Parliament, with the procedure number (and nature) COD/2005/0260 opening up the process file.

Commission proposal COM(2005) 646 final

After the recapitulation of how to access the whole legislative process, we turn to the original proposal by the Commission:

Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL AMENDING COUNCIL DIRECTIVE 89/552/EEC on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities; Brussels, 13.12.2005; COM(2005) 646 final; 2005/0260 (COD); 29 pages.

(These titles are informative, but hardly media sexy.)

The useful information on the front page also told us that the proposal by the Commission was accompanied by two documents: SEC(2005) 1625 and SEC(2005) 1626.

The proposal began with an Explanatory memorandum, which presented the grounds for and objectives of the proposal, the general context, existing provisions in the area covered by the proposal, as well as consistency with other policies and objectives of the Union (pages 2 to 4).

Two paragraphs presented the essence of the matter:

In sum, the objective of the Commission’s proposal is to modernise and simplify the regulatory framework for broadcasting or linear services and introduce minimum rules for non-linear audiovisual media services.

• Existing provisions in the area covered by the proposal

Council Directive 89/552/EEC as amended by Directive 97/36/EC concerns “television broadcasting”. The present proposal amends the TVWF Directives in order to establish a modernised and flexible framework for television broadcasts, including other linear (scheduled) audiovisual media services, and to introduce a set of minimum rules for non-linear (on-demand) audiovisual media services.

Under Consultation of interested parties and impact assessment, the Commission described the consultations and some of the major issues (page 4 to 5):

• Scope of regulation (distinction between linear and non-linear services)
• Advertising (insertion and daily advertising limits)
• Protection of minors and human dignity (including incitement of hatred)
• Cultural diversity (transmission time quotas; free flow of non-linear services)
• Rights to information and short extracts

The Commission proposal listed and described the outside expert advice it had received (page 6) on the scheduling of European works and the impact of regulation on television advertising markets.

Under Impact assessment, the Commission mentioned and discussed five options, from repealing existing regulation or doing nothing to full harmonisation in the European Union (page 7 to 8).

Legal elements of the proposal discussed (page 8 to 9):

• Summary of the proposed action
• Legal basis (ativities of self-employed persons, provisions against restrictions on services)
• Subsidiarity principle (including obstacles to the freedom to provide services in the internal market)
• Proportionality principle (minimum harmonisation to ensure free movement of services in the internal market; co- and self-regulation)
• Choice of instruments

The Commission covered the points that the proposal (page 10):

• had no budgetary implications for the Community budget
• included a transitional period for the proposal
• provided for simplification of legislation
• included a review clause
• included a requirement for member states to notify transposition measures
• concerned the European Economic Area (EEA)

On page 10 and 11 the Commission offered a short explanation of the proposal, which is about the depth we want to go into in this blog post:

• Short explanation of the proposal

The aim of the revision is to define rules for audiovisual media services in a platform neutral way, which would mean that the same basic rules apply to the same kind of services. The set of applicable rules shall no longer depend on the delivery platform but on the nature of a service. The future regulation will distinguish between linear audiovisual services or “broadcasting”, including IPTV, streaming or web-casting on one side, and non-linear services, such as “video-on-demand”- services, on the other side.

The amending Directive introduces new definitions based around the notion of “audiovisual media service” in Article 1 of the amended Directive. The definition of audiovisual media services covers mass media in their function to inform, entertain and educate, but excludes any form of private correspondence, like e-mails sent to a limited number of recipients. This definition also excludes all services the principal purpose of which is not to provide audiovisual content, even where such services contain some audiovisual elements. Services where the audiovisual content is merely ancillary to and not the principal purpose of the service are not covered.

The new Articles 3c to 3h contain the basic tier of rules for all audiovisual media services. As a consequence, some of the specific provisions for television broadcasts, such as Article 7, Article 12 and Article 22a, can be abolished.

Non-linear (on-demand) services will be subject to some minimum principles with regard to

• protection of minors

• prohibition of incitement to hatred

• identification of the media service provider

• identification of commercial communication

• some qualitative restrictions for commercial communication ( ex. for alcohol or targeted at minors).

The new Article 3b introduces a rule on the non-discriminatory application of the right to short news reporting for linear services.

The main changes to Chapter IV on television advertising concern flexible rules for the insertion of advertising (amended Article 11), clear rules for product placement, the abolition of the daily limit on television advertising (old Article 18) and the dropping of quantitative restrictions with regard to teleshopping (old Article 18a).

The daily limit of three hours of advertising per days is considered obsolete, as it finds no application in practice and therefore it is deleted. The insertion rules have been simplified and made more flexible. Instead of being compelled - as is now the case – to allow 20 minutes time between each advertising break, broadcasters can now choose the most appropriate moment to insert advertising during programmes. Nonetheless, films made for television, cinematographic works, children’s programmes and news programmes may be interrupted by advertising only once per each period of 35 minutes.

Pages 12 to 29 contained the text of the proposed Audiovisual Media Services Directive.

Ralf Grahn

P.S. Gobal Europe is a website with valuable materials and an eminent blog with a Morning Brief on international affairs from a European perspective each working day. Global Europe is listed among the nearly 500 great euroblogs on multilingual, a useful one-stop-shop for fact, opinion and gossip on European affairs, i.a. politics, policies, economics, finance and law.

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