A4-0346/96

Decision on the common position adopted by the Council with a view to the adoption of a European Parliament and Council Directive 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 (C4-0380/96 - 95/0074(COD))

(Codecision procedure: second reading)

The European Parliament,

- having regard to the common position of the Council, C4-0380/96 - 95/0074(COD) ((OJ C 264, 11.9.1996, p. 52.)),

- having regard to its opinion at first reading ((OJ C 65, 4.3.1996, p. 96.)) on the Commission proposal to Parliament and the Council, COM(95)0086 ((OJ C 185, 19.7.1995, p. 4.)),

- having regard to the amended Commission proposal, COM(96)0200 ((OJ C 221, 30.7.1996, p. 10.)),

- having regard to Article 189b(2) of the EC Treaty,

- having regard to Rule 72 of its Rules of Procedure,

- having regard to the recommendation for second reading of the Committee on Culture, Youth, Education and the Media (A4-0346/96),

1. Amends the common position as follows;

2. Calls on the Commission to support Parliament's amendments in the opinion it is required to deliver pursuant to Article 189b(2)(d) of the EC Treaty;

3. Calls on the Council to approve all of Parliament's amendments, amend its common position accordingly and definitively adopt the act;

4. Instructs its President to forward this decision to the Council and Commission.

(Amendment 1)

Recital 5a (new)

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(5a) Whereas the Commission has undertaken to submit two Green Papers on new services, the first relating to the protection of minors and human dignity and the second focusing on developing the cultural aspects;

(Amendment 2)

Recital 5b (new)

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(5b) Whereas any legislative framework concerning new audiovisual services must include arrangements which are in line with the spirit and objectives of this Directive;

(Amendment 3)

Recital 6a (new)

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(6a) Whereas, however, pending the introduction of a comprehensive European legal framework to regulate the new services, the Member States must take action with regard to services comparable to television broadcasting in order to prevent any breach of the fundamental principles which must govern information and the emergence of wide disparities as regards free movement and competition;

(Amendment 4)

Recital 19a (new)

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(19a) Whereas, with a view to promoting the production of European works according to the objectives of the MEDIA programme, the Community should provide appropriate financial support to particular artistic works, including those realized by independent producers and to coproduction works with producers established in two or more Member States;

(Amendment 5)

Recital 21

>Original text>

(21) Whereas, in addition to the considerations cited above, it is necessary to create conditions for improving the competitiveness of the programme industry; whereas the communication on the application of Articles 4 and 5 of Directive 89/552/EEC, adopted by the Commission on 3 March 1994 pursuant to Article 4(3) of that Directive, draws the conclusion that measures to promote European works can contribute to such an improvement;

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(21) Whereas, in addition to the considerations cited above, it is necessary to create conditions for improving the competitiveness of the programme industry; whereas the communications on the application of Articles 4 and 5 of Directive 89/552/EEC, adopted by the Commission on 3 March 1994 and ... July 1996 pursuant to Article 4(3) of that Directive, draw the conclusion that measures to promote European works can contribute to such an improvement but that they need to take account of developments in the field of TV broadcasting;

(Amendment 6)

Recital 22a (new)

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(22a) Whereas the production and distribution of European works should also be promoted by a Guarantee Fund;

(Amendment 7)

Recital 22b (new)

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(22b) Whereas, for the purposes of the implementation of the measures designed to promote works created by producers who are independent of broadcasters, guideline criteria are needed whereby a producer may be deemed to be independent if:

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- the broadcaster holds no more than 20% of the share capital of the production company (50% if more than one television broadcaster is involved);

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- over a three-year period the producer supplies to the same broadcaster no more than 90% of the works produced, unless, over the same period, the producer makes only one programme or only one series, except where the broadcaster is predominantly using a minority language in the Member State concerned;

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- the producer does not hold a significant number of shares in a broadcaster;

(Amendment 8)

Recital 22c (new)

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(22c) Whereas Member States shall also take into account the destination and ownership of secondary rights when assessing the criteria of independence;

(Amendment 9)

Recital 35

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(35) Whereas the approach in Directive 89/552/EEC and this Directive has been adopted to achieve the essential harmonization necessary and sufficient to ensure the free movement of television broadcasts in the Community; whereas Member States remain free to apply to broadcasters under their jurisdiction more detailed or stricter rules in the fields coordinated by this Directive, including inter alia, rules concerning the achievement of language policy goals and of the protection of the public interest in terms of television's role as a provider of information, education, culture and entertainment and the need to safeguard pluralism in the information industry and the media and the protection of competition with a view to avoiding the abuse of dominant positions and/or the establishment or strengthening of dominant positions; whereas such rules must be compatible with Community law;

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(35) Whereas the approach in Directive 89/552/EEC and this Directive has been adopted to achieve the essential harmonization necessary and sufficient to ensure the free movement of television broadcasts in the Community; whereas Member States remain free to apply to broadcasters under their jurisdiction more detailed or stricter rules in the fields coordinated by this Directive, including inter alia, rules concerning the achievement of language policy goals and of the protection of the public interest in terms of television's role as a provider of information, education, culture and entertainment and the need to safeguard pluralism in the information industry and the media and the protection of competition with a view to avoiding the abuse of dominant positions, for example by securing exclusive rights to major events to the disadvantage of the majority, and/or the establishment or strengthening of dominant positions; whereas such rules must be compatible with Community law;

(Amendment 10)

Recital 35a (new)

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(35a) Whereas this Directive does not affect Member States' capacity to take measures in order to ensure the protection of competition with a view to avoiding the abuse of dominant positions and/or the establishment or strengthening of dominant positions by mergers, agreements, acquisitions and similar initiatives;

(Amendment 11)

Recital 35b (new)

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(35b) Whereas the objective of supporting audiovisual production in Europe can be pursued within the Member States inter alia through the definition of a public interest mission for certain broadcasting organizations, including the obligation to contribute substantially to investment in national and local production;

(Amendment 14)

ARTICLE 1(1)(b)

Article 1(c) (Directive 89/552/EEC)

>Original text>

(c) television advertising means any form of announcement broadcast whether in return for payment or for similar consideration or broadcast for self- promotional purposes by a public or private undertaking in connection with a trade, business, craft or profession in order to promote the supply of goods or services, including immovable property, rights and obligations, in return for payment.

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(c) television advertising means any form of announcement broadcast whether in return for payment or for similar consideration or broadcast for self- promotional purposes by a public or private undertaking in connection with a trade, business, craft or profession in order to promote the supply of goods or services, including immovable property, rights and obligations, in return for payment or by distributing such goods as a free promotion. It shall include all items of publicity broadcast on behalf of someone other than the broadcaster in advertising breaks, apart from public service announcements and charity appeals broadcast free of charge. It shall also include publicity by broadcasters unrelated to programmes. It shall not include teleshopping.

(Amendment 15)

ARTICLE 1(1)(d)

Article 1(f) (Directive 89/552/EEC)

>Original text>

(f) 'teleshopping' means direct offers broadcast to the public with a view to the supply of goods or services, including immovable property, rights and obligations, in return for payment.

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(f) 'teleshopping' means direct offers broadcast to the public with a view to the supply of goods or services, including immovable property, rights and obligations, in return for payment, or the distribution of such goods or services free of charge for promotional purposes.

(Amendment 19)

ARTICLE 1(4)

Article 3(2)(Directive 89/552/EEC)

>Original text>

2. Member States shall, by appropriate means, ensure, within the framework of their legislation, that television broadcasters under their jurisdiction effectively comply with the provisions of this Directive.

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2. Member States shall, by appropriate means, including fines, ensure, within the framework of their legislation, that television broadcasters under their jurisdiction effectively comply with the provisions of this Directive.

(Amendment 20)

ARTICLE 1(4)

Article 3(3a) (new) (Directive 89/552/EEC)

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3a. Member States shall ensure, by appropriate legal means, that broadcasters under their jurisdiction which have acquired exclusive broadcasting rights to particularly important sports events of general interest, both national and/or European, such as, in particular, the Summer and Winter Olympic Games, the football World Cup and European Championships and any other event which a Member State deems, by means of laws or regulations, equally important, do not exercise those rights in such a way as to deprive a sizeable proportion of the public in the Member State of the possibility of following such events live, via broadcasts in unencoded form.

(Amendment 23)

ARTICLE 1(5), FIRST SUBPARAGRAPH a (new)

Article 4(2) (Directive 89/552/EEC)

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Paragraph 2 is replaced by the following:

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"2. For channels which have been broadcasting for more than three years, these proportions may be under no circumstances less than the average recorded in 1992 in the Member State concerned.¨

(Amendment 24)

ARTICLE 1(5), FIRST SUBPARAGRAPH b (new)

Article 4(2a) (new) (Directive 89/552/EEC)

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The following new paragraph 2a is inserted:

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"2a. Channels broadcasting entirely in a language other than those of the Member States shall not be covered by the provisions of this Article or those of Article 5.

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Where such a language or languages are a substantial but not exclusive part of the output, their contribution under paragraph 1a above shall be in due proportion to that part of the output excluded from the provisions of this Article and Article 5.¨

(Amendment 25)

ARTICLE 1(5), FIRST SUBPARAGRAPH c (new)

Article 4(3) (Directive 89/552/EEC)

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Paragraph 3 is replaced by the following:

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"3. Member States shall provide the Commission every two years with a report on the application of this Article and Article 5 from the date of adoption of this Directive.

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That report shall in particular comprise all qualitative assessments and statistical information supplied to the Member State concerned by the channels falling within its jurisdiction for the purpose of ascertaining whether the proportion referred to in this Article and Article 5 has been achieved. In addition Member States shall indicate to the Commission the reasons for the failure to attain those proportions and the appropriate measures they propose to take in each case to ensure that the TV broadcasting organization does actually attain them.

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The Commission shall inform the other Member States and the European Parliament of the reports, which shall be accompanied by an opinion. The Commission shall ensure the application of this Article and Article 5 in accordance with the provisions of the Treaty. The Commission may take account in its opinion, in particular, of progress achieved in relation to previous years, the share of first broadcast works in the programming, the particular circumstances of new television broadcasters and the specific situation of countries with a low audiovisual production capacity or restricted language area.¨

(Amendment 28)

ARTICLE 1(6a) (new)

Article 5, second and third paragraphs (new) (Directive 89/552/EEC)

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6a. The following new paragraphs are added to Article 5:

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'Within the meaning of this Directive a producer is 'independent' of a television broadcaster if:

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- the broadcaster holds no more than 20% of the share capital of the production company (50% if more than one television broadcaster is involved);

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- over a three-year period the producer supplies to the same television broadcaster no more than 90% of the works produced unless, over the same period, the producer makes only one programme or only one series, except where the broadcaster is predominantly using a minority language in the Member State concerned;

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- the producer does not hold a significant number of shares in a broadcaster.

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Without prejudice to the above, Member States shall take into account the destination and ownership of secondary rights when assessing the criteria of independence.¨

(Amendment 29)

ARTICLE 1(8)

Article 7 (Directive 89/552/EEC)

>Original text>

1. Unless otherwise agreed between rights holders and broadcasters, the latter shall not broadcast any cinematographic work until 18 months have elapsed since the work was first shown in cinemas in one of the Member States.

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Member States shall ensure that broadcasters under their jurisdiction do not broadcast cinematographic works outside periods agreed with the rightholders.

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2. The period referred to in paragraph 1 shall be reduced to 12 months:

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(a) for pay-per-view and pay- television channels;

>Original text>

(b) in the case of cinematographic works co-produced by the broadcaster.

(Amendment 31)

ARTICLE 1(12)

Article 10 (Directive 89/552/EEC)

>Original text>

1. Television advertising and teleshopping shall be readily recognizable as such and kept quite separate from other parts of the programme service by optical and/or acoustic means.

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1. Television advertising and teleshopping broadcasts, spots and windows shall be readily recognizable as such and kept quite separate from other parts of the programme service by optical and/or acoustic means.

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2. Isolated advertising and teleshopping spots shall remain the exception.

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2. Isolated advertising and teleshopping spots shall remain the exception.

>Original text>

3. Advertising and teleshopping shall not use subliminal techniques.

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3. Advertising and teleshopping broadcasts, spots and windows shall not use subliminal techniques.

>Original text>

4. Surreptitious advertising and teleshopping shall be prohibited.

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4. Surreptitious advertising and teleshopping broadcasts, spots and windows shall be prohibited.

(Amendment 33)

ARTICLE 1(14), SECOND SUBPARAGRAPH (new)

Article 12(c) (Directive 89/552/EEC)

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Article 12(c) is replaced by the following:

"(c) be offensive to religious, philosophical or political beliefs;¨

(Amendment 36)

ARTICLE 1(21)

Article 18a(1a) (new) (Directive 89/552/EEC)

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1a. Teleshopping programmes and spots must be easily identifiable as such and, if they are inserted in a service that is not exclusively devoted to this activity, they must be clearly distinguished from that service's other broadcasts, including advertising broadcasts, by optical and acoustic means, so that any fraudulous intent to circumvent the rules applying to advertising can be excluded.

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The teleshopping programmes referred to in paragraphs 1 and 2 may not be interrupted by advertising, nor may they be incorporated into advertising sequences.

(Amendment 38)

ARTICLE 1(27)

Article 22(1) (Directive 89/552/EEC)

>Original text>

1. Member States shall take appropriate measures to ensure that television broadcasts by broadcasters under their jurisdiction do not include any programmes which might seriously impair the physical, mental or moral development of minors, in particular those that involve pornography or gratuitous violence.

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1. Member States shall take appropriate measures to ensure that television broadcasts, including trailers, by broadcasters under their jurisdiction do not include any programmes which might seriously impair the physical, mental or moral development of minors, in particular those that involve pornography or gratuitous violence. Member States shall take the necessary measures to ensure that programmes do not include advertising spots or programme announcements which might seriously impair the psychological well-being of minors.

(Amendment 40)

ARTICLE 1(27a) (new)

Article 22-a (new) (Directive 89/552/EEC)

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27a. The following Article shall be inserted:

'Article 22-a

1. Member States shall ensure that broadcasting bodies under their jurisdiction take the necessary measures to code all programmes which they broadcast in line with the common classification of programmes according to their possible detrimental effect on minors, by one year at the latest after its adoption under the procedure laid down in Article 25.

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2. Any television receiver marketed for the purposes of sale or rental in the Community must be equipped with the technical device for filtering programmes by one year, at the latest, after it has been standardized by a recognized European standardization body.¨

(Amendment 41)

ARTICLE 1(28)

Article 22a (Directive 89/552/EEC)

>Original text>

Member States shall ensure that broadcasts do not contain any incitement to hatred on grounds of race, sex, religion or nationality.

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Member States shall ensure that broadcasts do not contain any incitement to contempt or hatred on grounds of race, sex, social or political ideology, religion, philosophy or nationality.

(Amendment 42)

ARTICLE 1(31)

Article 23a(1) (Directive 89/552/EEC)

>Original text>

1. A contact Committee shall be set up under the aegis of the Commission. It shall be composed of representatives of the competent authorities of the Member States. It shall be chaired by a representative of the Commission and meet either on his initiative or at the request of the delegation of a Member State.

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1. A contact Committee shall be set up under the aegis of the Commission. It shall be composed of representatives of the authorities of the Member States responsible for the audiovisual sector and of the European Parliament. It shall be chaired by a representative of the Commission and meet either on his initiative or at the request of the delegation of a Member State.

(Amendment 43)

ARTICLE 1(31)

Article 23a(2)(aa) (new) (Directive 89/552/EEC)

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(aa) to deliver own-initiative opinions or opinions requested by the Commission on the application by the Member States of the provisions of this Directive;

(Amendment 44)

ARTICLE 1(31)

Article 23a(2)(c) (Directive 89/552/EEC)

>Original text>

(c) to discuss the outcome of regular consultations which the Commission holds with representatives of broadcasting organizations, producers, consumers, manufacturers, service providers and trade unions;

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(c) to discuss the outcome of regular consultations which the Commission holds with representatives of broadcasting organizations, producers, consumers, manufacturers, service providers, trade unions and the creative community;