51996AG0911(09)

COMMON POSITION (EC) No 49/96 adopted by the Council on 8 July 1996 with a view to adopting Directive 96/. . ./EC 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 (96/C 264/09)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular Articles 57 (2) and 66 thereof,

Having regard to the proposal from the Commission (1),

Having regard to the opinion of the Economic and Social Committee (2),

Acting in accordance with the procedure referred to in Article 189b of the Treaty (3),

(1) Whereas Council Directive 89/552/EEC (4) constitutes the legal framework for television broadcasting in the internal market;

(2) Whereas Article 26 of Directive 89/552/EEC states that the Commission shall, no later than the end of the fifth year after the date of adoption of the Directive, submit to the European Parliament, the Council and the Economic and Social Committee a report on the application of the Directive and, if necessary, make further proposals to adapt it to developments in the field of television broadcasting;

(3) Whereas the application of Directive 89/552/EEC and the report on its application have revealed the need to clarify certain definitions or obligations on Member States under this Directive;

(4) Whereas the Commission, in its communication of 19 July 1994 entitled 'Europe's way to the information society: an action plan`, underlined the importance of a regulatory framework applying to the content of audiovisual services which would help to safeguard the free movement of such services in the Community and be responsive to the opportunities for growth in this sector opened up by new technologies, while at the same time taking into account the specific nature, in particular the cultural and sociological impact, of audiovisual programmes, whatever their mode of transmission;

(5) Whereas the Council welcomed this action plan at its meeting on 28 September 1994 and stressed the need to improve the competitiveness of the European audiovisual industry;

(6) Whereas any legislative framework concerning new audiovisual services must be compatible with the primary objective of this Directive which is to create the legal framework for the free movement of services;

(7) Whereas the Heads of State and Government meeting at the European Council in Essen on 9 and 10 December 1994 called on the Commission to present a proposal for a revision of Directive 89/552/EEC before their next meeting;

(8) Whereas the application of Directive 89/552/EEC has revealed the need to clarify the concept of jurisdiction as applied specifically to the audiovisual sector; whereas, in view of the case law of the Court of Justice of the European Communities, the establishment criterion should be made the principal criterion determining the jurisdiction of a particular Member State;

(9) Whereas the concept of establishment, according to the criteria laid down by the Court of Justice in its judgment of 25 July 1991 in 'Factortame` (5), involves the actual pursuit of an economic activity through a fixed establishment for an indefinite period;

(10) Whereas the establishment of a television broadcasting organization may be determined by a series of practical criteria such as the location of the head office of the provider of services, the place where decisions on programming policy are usually taken, the place where the programme to be broadcast to the public is finally mixed and processed, and the place where a significant proportion of the workforce required for the pursuit of the television broadcasting activity is located;

(11) Whereas the fixing of a series of material criteria is designed to determine by an exhaustive procedure that one Member State and one only is competent for a broadcaster in connection with the pursuit of the provision of the services which this Directive addresses; nevertheless, taking into account the case law of the Court of Justice and so as to avoid cases where there is a vacuum of competence, it is appropriate to mention the criterion of establishment within the meaning of Articles 52 and following of the Treaty establishing the European Community as the final criterion determining the competence of a Member State;

(12) Whereas the Court of Justice has constantly held (1) that a Member State retains the right to take measures against a television broadcasting organization that is established in another Member State but directs all or most of its 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 organization had it been established in the territory of the first Member State;

(13) Whereas Article F (2) of the Treaty on European Union stipulates that the Union shall respect fundamental rights as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms as general principles of Community law; whereas any measure aimed at restricting the reception and/or suspending the retransmission of television broadcasts taken under Article 2a of Directive 89/552/EEC as amended by this Directive must be compatible with such principles;

(14) Whereas it is necessary to ensure the effective application of the provisions of Directive 89/552/EEC as amended by this Directive throughout the Community in order to preserve free and fair competition between firms in the same industry;

(15) Whereas directly affected third parties, including nationals of other Member States, must be able to assert their rights, according to national law, in the competent judicial or other authorities of the Member State with jurisdiction over the television broadcasting organization that may be failing to comply with the national provisions arising out of the application of Directive 89/552/EEC as amended by this Directive;

(16) Whereas Member States are free to take whatever measures they deem appropriate with regard to broadcasts coming from third countries, and which do not satisfy the conditions laid down in Article 2 of Directive 89/552/EEC as amended by this Directive, provided they comply with Community law and the international obligations of the Community;

(17) Whereas in order to eliminate the obstacles arising from differences in national legislation on the promotion of European works, Directive 89/552/EEC as amended by this Directive, contains provisions aimed at harmonizing such legislation; whereas those provisions which, in general, permit the liberalization of trade must contain provisions harmonizing the conditions of competition;

(18) Whereas, moreover, Article 128 (4) of the Treaty establishing the European Community requires the Community to take cultural aspects into account in its action under other provisions of the Treaty;

(19) Whereas the Green Paper on 'Strategy options to strengthen the European programme industry in the context of the audiovisual policy of the European Union`, adopted by the Commission on 7 April 1994, puts forward inter alia measures to promote European works in order to further the development of the sector; whereas the MEDIA II programme, which seeks to promote training, development and distribution in the audiovisual sector, is also designed to enable the production of European works to be developed;

(20) Whereas broadcasting organizations, programme makers, producers, authors and other experts should be encouraged to develop more detailed concepts and strategies aimed at developing European audiovisual fiction films that are addressed to an international audience;

(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;

(22) Whereas the proportions of European works must be achieved taking economic realities into account; whereas, therefore, a progressive system for achieving this objective is required;

(23) Whereas the question of specific time scales for each type of television showing of cinematographic works is primarily a matter to be settled by means of agreements between the interested parties or professionals concerned; whereas, however, in the absence of such agreements a schedule for the showing of such works should be drawn up;

(24) Whereas advertising for medical products for human use is subject to the provisions of Directive 92/28/EEC (1);

(25) Whereas daily transmission time allotted to announcements made by the broadcaster in connection with its own programmes and ancillary products directly derived from these, or to public service announcements and charity appeals broadcast free of charge, is not to be included in the maximum amounts of daily or hourly transmission time that may be allotted to advertising and teleshopping;

(26) Whereas, in order to avoid distortions of competition, this derogation is limited to announcements concerning products that fulfil the dual condition of being both ancillary to and directly derived from the programmes concerned; whereas the term ancillary refers to products intended specifically to allow the viewing public to fully benefit from or to interact with these programmes;

(27) Whereas in view of the development of teleshopping, an activity with an economic importance for operators as a whole and a genuine outlet for goods and services within the Community, it is essential to modify the rules on transmission time and to ensure a high level of consumer protection by putting in place appropriate standards regulating the form and content of such broadcasts;

(28) Whereas it is important for the competent national authorities, in monitoring the implementation of the relevant provisions, to be able to distinguish, as regards channels not exclusively devoted to teleshopping, between transmission time devoted to teleshopping spots, advertising spots and other forms of advertising on the one hand and, to the other, transmission time devoted to teleshopping windows; whereas it is consequently necessary and sufficient that each window be clearly identified by optical and acoustic means at least at the beginning and the end of the window;

(29) Whereas Directive 89/552/EEC as amended by this Directive applies to channels exclusively devoted to teleshopping or self-promotion, without conventional programme elements such as news, sports, films, documentaries and drama, for the sole purposes of these Directives and without prejudice to their inclusion in the scope of other Community instruments;

(30) Whereas it is necessary to clarify that self-promotional activities are a particular form of advertising where the broadcaster promotes its own products, services, programmes or channels; whereas, in particular, trailers consisting of extracts from programmes should be treated as programmes; whereas self-promotion is a new and relatively unknown phenomenon and provisions concerning it may therefore be particularly subject to review in future examinations of this Directive;

(31) Whereas it is necessary to clarify the rules for the protection of the physical, mental and moral development of minors; whereas the establishment of a clear distinction between programmes that are subject to an absolute ban and those that may be authorized subject to appropriate technical means should satisfy concern about the public interest expressed by Member States and the Community;

(32) Whereas none of the provisions of this Directive that concern the protection of minors and public order require that the measures in question must necessarily be implemented through the prior control of television broadcasts;

(33) Whereas an investigation by the Commission, in liaison with the competent Member State authorities, of the possible advantages and drawbacks of further measures with a view to facilitating the control exercised by parents or guardians over the programmes that minors may watch, may involve, inter alia:

- the requirement for new television sets to be equipped with a technical device enabling parents or guardians to filter out certain programmes,

- the setting up of appropriate rating systems,

- encouraging family viewing policies,

- other educational and awareness measures,

- appropriate feasibility studies,

- taking into account experience gained in this field in and beyond Europe as well as the views of interested parties such as broadcasters, producers, educationalists, media specialists and relevant associations,

with a view to presenting, if necessary before the deadline laid down in Article 26, appropriate proposals for legislative or other measures;

(34) Whereas it is appropriate to amend Directive 89/552/EEC to allow natural or legal persons whose activities include the manufacture or the sale of medicinal products and medical treatment available only on prescription to sponsor television programmes provided that such sponsorship does not circumvent the prohibition of television advertising for medicinal products and medical treatment only available on prescription;

(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;

(36) Whereas Article B of the Treaty on European Union states that one of the objectives the Union shall set itself is to maintain in full the 'acquis communautaire`,

HAVE ADOPTED THIS DIRECTIVE:

Article 1

Directive 89/552/EEC is hereby amended as follows:

1. Article 1 shall be amended as follows:

(a) the following new point (b) shall be inserted:

'(b) "broadcaster" means the natural or legal person who has editorial responsibility for composition of schedules of television programmes within the meaning of (a) and who transmits them or has them transmitted by third parties;`;

(b) the former point (b) shall become point (c) and shall read as follows:

'(c) "television advertising" means any form of announcement broadcast whether in return for payment to 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;`;

(c) the former points (c) and (d) shall become points (d) and (e);

(d) the following point shall be added:

'(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.`.

2. Article 2 shall be replaced by the following:

'Article 2

1. Each Member State shall ensure that all television broadcasts transmitted by broadcasters under its jurisdiction comply with the rules of the system of law applicable to broadcasts intended for the public in that Member State.

2. For the purpose of this Directive the broadcasters under the jurisdiction of a Member State are:

- those established in that Member State according to paragraph 3,

- those to whom paragraph 4 applies.

3. For the purpose of this Directive, a broadcaster shall be deemed to be established in a Member State in the following cases:

(a) the broadcaster has its head office in that Member State and the editorial decisions about programme schedules are taken in that Member State;

(b) if a broadcaster has its head office in one Member State but editorial decisions on programme schedules are taken in another Member State, it shall be deemed to be established in the Member State where a significant part of the workforce involved in the pursuit of the television broadcasting activity operates; if a significant part of the workforce involved in the pursuit of the television broadcasting activity operates in each of those Member States, the broadcaster shall be deemed to be established in the Member State where it has its head office; if a significant part of the workforce involved in the pursuit of the television broadcasting activity operates in neither of those Member States, the broadcaster shall be deemed to be established in the Member State where it first began broadcasting in accordance with the system of law of that Member State, provided that it maintains a stable and effective link with the economy of that Member State;

(c) if a broadcaster has its head office in a Member State but decisions on programme schedules are taken in a third country, or vice-versa, it shall be deemed to be established in the Member State concerned, provided that a significant part of the workforce involved in the pursuit of the television broadcasting activity operates in that Member State.

4. Broadcasters to whom the provisions of paragraph 3 are not applicable are deemed to be under the jurisdiction of a Member State in the following cases:

(a) they use a frequency granted by that Member State;

(b) although they do not use a frequency granted by a Member State they do use a satellite capacity appertaining to that Member State;

(c) although they use neither a frequency granted by a Member State nor a satellite capacity appertaining to a Member State they do use a satellite up-link situated in that Member State.

5. If the question as to which Member State has jurisdiction cannot be determined according to paragraphs 3 and 4, the competent Member State shall be that in which the broadcaster is established within the meaning of Articles 52 and following of the Treaty establishing the European Community.

6. This Directive shall not apply to broadcasts intended exclusively for reception in third countries, and which are not received directly or indirectly by the public in one or more Member States.`.

3. The following Article shall be inserted:

'Article 2a

1. Member States shall ensure freedom of reception and shall not restrict retransmissions on their territory of television broadcasts from other Member States for reasons which fall within the fields coordinated by this Directive.

2. Member States may, provisionally, derogate from paragraph 1 if the following conditions are fulfilled:

(a) a television broadcast coming from another Member State manifestly, seriously and gravely infringes Article 22 (1) or (2) and/or Article 22a;

(b) during the previous 12 months, the broadcaster has infringed the provision(s) referred to in (a) on at least two prior occasions;

(c) the Member State concerned has notified the broadcaster and the Commission in writing of the alleged infringements and of the measures it intends to take should any such infringement occur again;

(d) consultations with the transmitting Member State and the Commission have not produced an amicable settlement within 15 days of the notification provided for in (c), and the alleged infringement persists.

The Commission shall, within no more than two months following notification of the measures taken by the Member State, take a decision on whether the measures are compatible with Community law. If it decides that they are not, the Member State will be required to put an end to the measures in question as a matter of urgency.

3. Paragraph 2 shall be without prejudice to the application of any procedure, remedy or sanction to the infringements in question in the Member State which has jurisdiction over the broadcaster concerned.`.

4. Article 3 shall be replaced by the following:

'Article 3

1. Member States shall remain free to require television broadcasters under their jurisdiction to comply with more detailed or stricter rules in the areas covered by this Directive.

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.

3. The measures shall include the appropriate procedures for third parties directly affected, including nationals of other Member States, to apply to the competent judicial or other authorities to seek effective compliance according to national provisions.`.

5. In Article 4 (1), the words 'and teletext services` shall be replaced by the words 'teletext services and teleshopping`.

6. In Article 5, the words 'and teletext services` shall be replaced by the words 'teletext services and teleshopping`.

7. Article 6 shall be amended as follows:

(a) paragraph 1 (a) shall be replaced by the following:

'(a) works originating from Member States;`;

(b) in paragraph 1, the following subparagraph shall be added:

'Application of the provisions of (b) and (c) shall be conditional on works originating from Member States not being the subject of discriminatory measures in the third countries concerned.`;

(c) paragraph 3 shall be replaced by the following:

'3. The works referred to in paragraph 1 (c) are works made exclusively or in co-production with producers established in one or more Member States by producers established in one or more European third countries with which the Community has concluded agreements relating to the audiovisual sector, if those works are mainly made with authors and workers residing in one or more European States.`;

(d) paragraph 4 shall become paragraph 5 and the following paragraph shall be inserted:

'4. Works that are not European works within the meaning of paragraph 1 but that are produced within the framework of bilateral co-production treaties concluded between Member States and third countries shall be deemed to be European works provided that the Community co-producers supply a majority share of the total cost of the production and that the production is not controlled by one or more producers established outside the territory of the Member States.`;

(e) in the new paragraph 5, the words 'paragraph 1` shall be replaced by the words 'paragraphs 1 and 4`.

8. Article 7 shall be replaced by the following:

'Article 7

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.

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

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

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

9. Article 8 shall be deleted.

10. Article 9 shall be replaced by the following:

'Article 9

This Chapter shall not apply to television broadcasts intended for local audiencies and that do not form part of a national network.`.

11. The title of Chapter IV shall be replaced by the following:

'Television advertising, sponsorship and teleshopping`.

12. Article 10 shall be replaced by the following:

'Article 10

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.

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

3. Advertising and teleshopping shall not use subliminal techniques.

4. Surreptitious advertising and teleshopping shall be prohibited.`.

13. Article 11 shall be replaced by the following:

'Article 11

1. Advertising and teleshopping spots shall be inserted between programmes. Provided the conditions contained in paragraphs 2 to 5 are fulfilled, advertising and teleshopping spots may also be inserted during programmes in such a way that the integrity and value of the programme, taking into account natural breaks in and the duration and nature of the programme, and the rights of the rights holders are not prejudiced.

2. In programmes consisting of autonomous parts, or in sports programmes and similarly structured events and performances comprising intervals, advertising and teleshopping spots shall only be inserted between the parts or in the intervals.

3. The transmission of audiovisual works such as feature films and films made for television (excluding series, serials, light entertainment programmes and documentaries), provided their scheduled duration is more than 45 minutes, may be interrupted once for each period of 45 minutes. A further interruption shall be allowed if their scheduled duration is at least 20 minutes longer than two or more complete periods of 45 minutes.

4. Where programmes, other than those covered by paragraph 2, are interrupted by advertising or teleshopping spots, a period of at least 20 minutes shall elapse between each successive advertising break within the programme.

5. Advertising and teleshopping shall not be inserted in any broadcast of a religious service. News and current affairs programmes, documentaries, religious programmes, and children's programmes, when their scheduled duration is less than 30 minutes shall not be interrupted by advertising or by teleshopping. If their scheduled duration is of 30 minutes or longer, the provisions of the previous paragraphs shall apply.`.

14. In Article 12, the introductory words shall be replaced by the following:

'Television advertising and teleshopping shall not:`

15. Article 13 shall be replaced by the following:

'Article 13

All forms of television advertising and teleshopping for cigarettes and other tobacco products shall be prohibited.`.

16. In Article 14, the present text shall become paragraph 1 and the following paragraph shall be added:

'2. Teleshopping for medicinal products which are subject to a marketing authorization within the meaning of Council Directive 65/65/EEC of 26 January 1965 on the approximation of provisions laid down by law, regulation or administrative action relating to medicinal products (*), as well as teleshopping for medical treatment, shall be prohibited.

(*) OJ No 22, 9. 2. 1965, p. 369. Directive as last amended by Directive 93/39/EEC (OJ No L 214, 24. 8. 1993, p. 22).`.

17. In Article 15, the introductory words shall be replaced by the following:

'Television advertising and teleshopping for alcoholic beverages shall comply with the following criteria:`.

18. In Article 16, the present text shall become paragraph 1 and the following paragraph shall be added:

'2. Teleshopping shall comply with the requirements referred to in paragraph 1 and, in addition, shall not exhort minors to contract for the sale or rental of goods and services.`.

19. Article 17 shall be amended as follows:

(a) paragraph 2 shall be replaced by the following:

'2. Television programmes may not be sponsored by undertakings whose principal activity is the manufacture or sale of cigarettes and other tobacco products.`.

(b) paragraph 3 shall become paragraph 4 and the following paragraph shall be inserted:

'3. Sponsorship of television programmes by undertakings whose activities include the manufacture or sale of medical products and medical treatment may promote the name or the image of the undertaking but may not promote specific medical products or medical treatments only available on prescription in the Member State within whose jurisdiction the broadcaster falls.`.

20. Article 18 shall be replaced by the following:

'Article 18

1. The amount of transmission time of teleshopping spots, advertising spots and other forms of advertising, with the exception of teleshopping windows within the meaning of Article 18a, shall not exceed 20 % of the daily transmission time. The transmission time for advertising spots shall not exceed 15 % of the daily transmission time.

2. The amount of advertising spots and teleshopping spots within a given clock hour shall not exceed 20 %.

3. For the purposes of this Article, advertising does not include:

- announcements made by the broadcaster in connection with its own programmes and ancillary products directly derived from those programmes,

- public service announcements and charity appeals broadcast free of charge.`.

21. The following Article shall be inserted:

'Article 18a

1. Windows devoted to teleshopping broadcast by a channel not exclusively devoted to teleshopping shall be of a minimum uninterrupted duration of 15 minutes.

2. The maximum number of windows per day shall be eight. Their overall duration shall not exceed three hours per day. They must be clearly identified as teleshopping windows by optical and acoustic means.`.

22. Article 19 shall be replaced by the following:

'Article 19

Chapters I, II, IV, V, VI, VIa and VII shall apply mutatis mutandis to channels exclusively devoted to teleshopping. Advertising on such channels shall be allowed within the daily limits established by Article 18 (1). Article 18 (2) shall not apply.`.

23. The following Article shall be inserted:

'Article 19a

Chapters I, II, IV, V, VI, VIa and VII shall apply mutatis mutandis to channels exclusively devoted to self-promotion. Other forms of advertising on such channels shall be allowed within the limits established by Article 18 (1) and (2). This provision in particular shall be subject to review in accordance with Article 26.`.

24. Article 20 shall be replaced by the following:

'Article 20

Without prejudice to Article 3, Member States may, with due regard for Community law, lay down conditions other than those laid down in Article 11 (2) to (5) and Articles 18 and 18a in respect of broadcasts intended solely for the national territory which cannot be received, directly or indirectly by the public, in one or more other Member States.`.

25. Article 21 shall be deleted.

26. The title of Chapter V shall be replaced by the following:

'Protection of minors and public order`.

27. Article 22 shall be replaced by the following:

'Article 22

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.

2. The measures provided for in paragraph 1 shall also extend to other programmes which are likely to impair the physical, mental or moral development of minors, except where it is ensured, by selecting the time of the broadcast or by any technical measure, that minors in the area of transmission will not normally hear or see such broadcast.

3. Furthermore, when such programmes are broadcast in unencoded form Member States shall ensure that they are preceded by an acoustic warning or are identified by the presence of a visual symbol throughout their duration.`.

28. The following Article shall be inserted:

'Article 22a

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

29. The following Article shall be inserted:

'Article 22b

1. The Commission shall attach particular importance to application of this Chapter in the report provided for in Article 26.

2. The Commission shall, in liaison with the competent Member State authorities, carry out an investigation of the possible advantages and drawbacks of further measures with a view to facilitating the control exercised by parents or guardians over the programmes that minors may watch.`.

30. Article 23 (1) shall be replaced by the following:

'1. Without prejudice to other provisions adopted by the Member States under civil, administrative or criminal law, any natural or legal person, regardless of nationality, whose legitimate interests, in particular reputation and good name, have been damaged by an assertion of incorrect facts in a television programme must have a right of reply or equivalent remedies. Member States shall ensure that the actual exercise of the right of reply or equivalent remedies is not hindered by the imposition of unreasonable terms or conditions. The reply shall be transmitted within a reasonable time subsequent to the request being substantiated and at a time and in a manner appropriate to the broadcast to which the request refers.`.

31. After Article 23, the following new Chapter VIa shall be inserted:

'CHAPTER VIa

Contact Committee

Article 23a

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.

2. The tasks of this Committee shall be:

(a) to facilitate effective implementation of this Directive through regular consultation on any practical problems arising from its application, and particularly from the application of Article 2, as well as on any other matters on which exchanges of views are deemed useful;

(b) to be the forum for an exchange of views on what matters should be dealt with in the reports which Member States must submit pursuant to Article 4 (3), on the methodology of these, on the terms of reference for the independent study referred to in Article 25a, on the evaluation of tenders for this and on the study itself;

(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;

(d) to facilitate the exchange of information between the Member States and the Commission on the situation and the development of regulatory activities regarding television broadcasting services, taking account of the Community's audiovisual policy, as well as relevant developments in the technical field;

(e) to examine any development arising in the sector on which an exchange of views appears useful.`.

32. The following Article shall be inserted:

'Article 25a

A further review as provided for in Article 4 (4) shall take place before . . . (*). It shall take account of an independent study on the impact of the measures in question at both Community and national level.

(*) Five years after the date of adoption of this Directive.`.

33. Article 26 shall be replaced by the following:

'Article 26

Not later than 31 December 19. . . (*) and every two years thereafter, the Commission shall submit to the European Parliament, the Council and the Economic and Social Committee a report on the application of this Directive as amended and, if necessary, make further proposals to adapt it to developments in the field of television broadcasting, in particular in the light of recent technological developments.

(*) End of the third year after the date of adoption of this Directive.`.

Article 2

1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive not later than . . . (1). They shall immediately inform the Commission thereof.

When Member States adopt these measures, they shall contain a reference to this Directive or be accompanied by such reference on the occasion of their official publication. The methods of making such reference shall be laid down by Member States.

2. Member States shall communicate to the Commission the text of the main provisions of national law which they adopt in the field covered by this Directive.

Article 3

This Directive shall enter into force on the date of its publication in the Official Journal of the European Communities.

Article 4

This Directive is addressed to the Member States.

Done at Brussels, . . .

For the Parliament The President For the Council The President

(1) OJ No C 185, 19. 7. 1995, p. 4.

(2) OJ No C 301, 13. 11. 1995, p. 35.

(3) Opinion of the European Parliament of 14 February 1996 (OJ No C 65, 4. 3. 1996, p. 113). Council common position of 8 July 1996 (not yet published in the Official Journal) and Decision of the European Parliament of . . . (not yet published in the Official Journal).

(4) OJ No L 298, 17. 10. 1989, p. 23.

(5) Case C-221/89, Queen v. Secretary of State for Transport, ex parte Factortame, (1991) ECR I-3905, paragraph 20.

(1) See, in particular, the adjustments in Case 33/74, Van Binsbergen v. Bestuur van de Bedrijfsvereniging, (1974) ECR 1299 and in Case C-23/93, TV 10 SA v. Commissariaat voor de Media, (1994) ECR I-4795.

(1) OJ No L 113, 30. 4. 1992, p. 13.

(1) 18 months after the date of adoption of this Directive.

STATEMENT OF THE COUNCIL'S REASONS

I. INTRODUCTION

1. On 31 May 1995 the Commission submitted a proposal for a Directive amending 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 broadcasting activities.

2. The European Parliament and the Economic and Social Committee delivered their opinions on 14 February 1996 and on 13 September 1995 respectively.

3. On 10 May 1996 the Commission submitted an amended proposal in the light of the European Parliament's opinion.

4. On 8 July 1996 the Council adopted its common position in accordance with Article 189b of the Treaty. The Council and/or Commission statements entered in the minutes are annexed to this statement of reasons.

II. OBJECTIVE OF THE PROPOSAL

The purpose of the proposal is, in accordance with Article 26 of Directive 89/552/EEC, to make certain amendments to that Directive in order to bring it up to date and improve its operation, so as to provide a stable legal environment conducive to the development of the audiovisual industry in the European Union.

1. General comments

1.1. In its common position, the Council supports the main objectives pursued by the Commission in its proposal for a Directive. The common position establishes a system making for better implementation of the 1989 Directive, with the introduction of provisions bringing greater legal certainty in the European audiovisual area, and it represents a dynamic instrument allowing for technological developments in television broadcasting.

1.2. At the Council meeting on 11 June 1996, some amendments were made to the Commission's amended proposal. While preferring its proposed approach in the case of some provisions, the Commission went along with the Council's common position so that the decision-making process could be taken forward and the European Parliament could consider the common position at its second reading.

1.3. The common position involves some significant changes compared with the original Commission proposal, in particular:

(a) Criteria for determining jurisdiction (Article 2, appearing in Article 1 (2) of the common position)

In accordance with the amended Commission proposal, the common position establishes an exhaustive system for assigning a Member State jurisdiction in respect of any given broadcaster. Article 2 (5) adds a final element of legal certainty for the purposes of determining the Member State with jurisdiction.

(b) Promotion of European works (Articles 4 and 5)

The Council decided to retain the system for promoting European works introduced by Directive 89/552/EEC, taking the view that this leaves Member States an advisable degree of flexibility, while ensuring the desired promotion of European audiovisual works. The Council also set up a contact Committee to keep a very close watch on the implementation of the Directive, particularly as a forum for debate on matters relating to Articles 4 and 5 (see Article 1 (31) of the common position).

The clause in Article 4 (4) and in Article 1 (32) of the common position will enable Parliament and the Council to review such matters on the basis of a report from the Commission and taking into account an independent study on the impact of the measures in question at both Community and national level.

(c) Protection of minors as regards teleshopping (Article 16, appearing in Article 1 (18) of the common position)

The common position strengthens the protection of minors as regards teleshopping by stipulating that teleshopping must not exhort minors to contract for the sale or rental of goods and services.

(d) Maximum transmission time for advertising (Article 18 (3), appearing in Article 1 (20) of the common position)

The common position excludes from the maximum daily transmission time for advertising the announcements made by the broadcaster in connection with its own programmes and ancillary products directly derived from those programmes and also public service announcements and charity appeals.

(e) Teleshopping windows (Article 18a, appearing in Article 1 (21) of the common position) The common position stipulates a maximum of eight teleshopping windows a day.

(f) Channels exclusively devoted to teleshopping (Article 19, appearing in Article 1 (22) of the common position)

The rules governing teleshopping channels have been clarified.

(g) Channels exclusively devoted to self-promotion (Articles 1 (c) and 19a, appearing in Article 1 (1) (b) and (23) respectively of the common position)

Self-promotion is treated in a similar way to television advertising and the rules governing self-promotion channels have been clarified.

(h) Protection of minors (Article 22b, appearing in Article 1 (29) of the common position) The means of protecting minors against programmes which might be harmful to them have been strengthened and the Commission is instructed to carry out an investigation, in liaison with Member States, into further ways of protecting minors, in particular by technological means.

(i) Right of reply (Article 23 (1), appearing in Article 1 (30) of the common position) Arrangements for exercising the right of reply have been improved.

2. European Parliament amendments

2.1. Amendments accepted by the Commission In its amended proposal, the Commission took on board 30 European Parliament amendments, five of them in full and 25 in part or in a different wording.

2.2. Amendments accepted by the Council

The Council accepted 34 of the European Parliament's amendments in whole, in part or in a different wording. The amendments in question are as follows:

1, 2, 6, 7, 10, 11, 12, 15, 19, 20, 21, 22, 23, 24, 25, 26, 28, 36, 37, 38, 39, 40, 41, 42, 44, 45, 46, 51, 57, 58, 74, 75, 76 and 88.

It has included the vast majority of the European Parliament amendments accepted by the Commission as well as a number of amendments rejected by the Commission.

2.3. European Parliament amendments not accepted by the Council

- Amendments 3, 18 and 77

New Services

The Council did not see fit to extend the scope of the Directive to include certain new audiovisual services. These need to be carefully considered and the Council would like to see a debate on the matter at Community level, on the basis of a Green Paper to be submitted by the Commission at an early opportunity.

Nor did it agree to the proposed definition of a 'television programme`, which was accepted by the Commission.

- Amendments 4 and 5

European guarantee fund and possible Directive on ownership arrangements for the mass media The Council did not think it appropriate at present to refer in legislation either to an instrument to guarantee funds for audiovisual production, while the proposal for a Decision on the matter is still under discussion at the Council, or to a possible Directive on ownership arrangements for the mass media, which has not yet been submitted.

- Amendment 8

Obligation to support national and local production

The Council would refer to the provisions of Article 3 (1), under which 'Member States shall remain free to require television broadcasters under their jurisdiction to comply with more detailed or stricter rules in the areas covered by this Directive`.

The Council took the view, however, that the amendment as worded would be inconsistent with the wording of Article 4.

- Amendments 13 and 68

- Compliance by advertising and teleshopping programmes and spots with the provisions of Council Directives on distance contracts and misleading advertising

- Need for a public service

The Council did not regard these amendments as coming within the scope of the Directive.

- Amendments 29, 30, 31, 32, 33, 34 and 59

Promotion of European works

See 1 (3) (b) above.

- Amendment 35

Definition of an independent broadcaster

The Council felt that the proposed definition, accepted by the Commission in recital 21a, did not suitably cover situations in the various Member States.

- Amendment 36

Definition of a European work (co-productions with third countries)

The Council has adjusted the definition of a European work so as to provide greater encouragement for co-productions with European third countries. Co-productions are to be made with European third countries with which the Community has concluded agreements relating to the audiovisual sector.

- Amendments 43, 47, 48 and 50

Legal rules applicable to advertising and to teleshopping programmes and channels - in the case of Amendment 43, the Council could not agree to go beyond the present wording and add 'philosophical` beliefs, an amendment accepted by the Commission,

- in the case of Amendments 47, 48 and 50, the Council preferred to establish a legal framework for teleshopping aligned in part on the content and presentation rules applicable to advertising; it was more amenable in the case of teleshopping for certain products (Article 14) and more flexible as regards the presentation of teleshopping windows (Article 18a) and teleshopping channels (Article 19).

- Amendments 102, 52, 55 and 62

Protection of minors

With regard to television advertising and teleshopping directed at minors, the Council regarded the wording in the common position as providing maximum protection for the audience in question without imposing on television channels requirements such as those involved in Amendment 52.

On Amendments 55 and 62, see 1 (3) (h) above.

- Amendment 56

Tightening of provisions to prevent any incitement to hatred on grounds of race, sex, religion or nationality (Article 22a)

The Council considered the wording which it has opted for to be better suited to the requirement of avoiding any incitement to hatred.

ANNEX

Common position with a view to adopting the Directive amending Directive 89/552/EEC

Statements by the Council and/or the Commission

Re Article 1 (a) In regard to new audiovisual services (point to point), the Commission states that it intends to present shortly a green paper which will deal in particular with this question.

Re Article 2a

The Council and the Commission state that this Directive does not affect Member States' right to take measures, in accordance with Community law, in situations where physical or legal persons, established in one Member State, have recourse to broadcasters established in other Member States whose broadcasts are aimed entirely or principally at the first mentioned Member State with the purpose of circumventing that State's national rules on advertising adopted in conformity with Community law, in particular those concerning consumer protection.

Re Article 6 (1) (d)

The Commission confirms that, in its view, new subparagraph (d) does not imply any additional powers for it to deal directly with, or act against, third countries.

Re Article 15

The Council and the Commission note that teleshopping for alcoholic beverages may increase their consumption and thus cause social and health risks. The Council and the Commission recognize that such risks could be particularly high in the Member States which have recently taken significant steps to liberalize provisions relating to the supply of alcoholic beverages. The Council and the Commission thus acknowledge that the criteria described in Article 15 are of special importance for those Member States and that, therefore, this fact will be taken into account in their application. Moreover, the question will be reviewed in accordance with the relevant provisions of the Directive.

Re Article 16

The Commission states that it will make a study of the impact of television advertising and teleshopping on minors, with a view to re-examination of the subject in the next revision of the Directive.

Re Article 23a (2) (a)

The Commission states that the tasks ascribed to the contact Committee by Article 23a (2) (a) include in particular taking into account efforts for investment in the production of European works made by broadcasters for whom it would be difficult to achieve a majority proportion of broadcasting time.

In referring, in Article 23a (2) (a), to practical problems arising out of the application of Article 2, the Council wishes the Committee to organize consultations on the question described in recital 12.