Amended proposal for 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
COMMISSION OF THE EUROPEAN COMMUNITIES Brussels, 07. 05. 1996 COM(%) 200 final 95/0074 (COD) Amended proposal for 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 (presented by the Commission pursuant to Article 189 a (2) of the EC-Treaty) EXPLANATORY MEMORANDUM 1. Introduction 1. 1 The 1989 Directive1 The 1989 Directive was adopted in order to create the legal reference framework needed at Community level to ensure the free movement of television broadcasts. This is achieved through the coordination of national rules in the fields where the disparities between them were - or are potentially - such as to create legal barriers to free circulation. The fields concerned are respectively jurisdiction, the promotion of distribution and production of television programmes, advertising and sponsorship, the protection of minors and the right of reply. Member States may not restrict the reception or the retransmission of broadcasts from other Member States for reasons which fall within the coordinated fields. A Member State may only lay down more detailed or stricter rules in these fields as regards broadcasters under its own jurisdiction. The main objective of the Directive is to achieve free circulation. Because it uses the method of the coordination of national rules where necessary to achieve this primary objective, the Directive also espouses the objectives of those national rules. It is the cornerstone of the "European audiovisual space" and has been, or is in the process of being supplemented by complementary legal measures (in particular the cable and satellite copyright Directive2). 1. 2 The History of the Proposal for a Directive amending the 1989 Directive Article 26 of the 1989 Directive requires the Commission to present a report on its application five years after adoption, accompanied if appropriate by proposals to adapt it to developments in the field of television broadcasting. The Commission's services carried out an extensive consultation process in 1994. The Commission presented to Parliament and Council a Communication the introductory statement and the proposal for a Directive amending the 1989 Directive on including the application report, Council Directive 89/552/EEC of 3 October 1989 "on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities" (OJ L298 p. 23 17. 10. 1989) Council Directive 93/83/EEC (OJ L248, p. 15, 06. 10. 1996). See also the recent "Green Paper on the legal protection of encrypted signals" COM(96)76 •X 31 May 19953. The purpose of the proposal is to adapt and clarify certain provisions of the 1989 text in the light of the experience gained in its implementation and of developments in the sector. The current Directive remains in force until amended (the next report on application is due in October 1996). The Economic and Social Committee adopted its opinion on 13 September 1995 (CES 972/95). On 14 February 1996 Parliament adopted a legislative resolution4 in the first reading under the co-decision procedure (Art. 189 (b) EC Treaty) approving the Commission's proposal subject to the amendments it had made. In parallel, the Council of Ministers was examining the proposal and held a full debate at ministerial level at its meeting on 20 November 1995 pending the adoption of Parliament's opinion in accordance with the co-decision procedure. 2. The amended proposal 2. 1 Parliament's amendments The amended proposal set out here incorporates the amendments accepted by the Commission. A large number of amendments (25) were accepted in part or in spirit and 5 as such i. e. roughly half the amendments actually adopted by Parliament. This memorandum will explain how these have been incorporated into the text and will provide further specific comments on the Commission's reasoning where appropriate. In general terms, the Commission has done its utmost to take the greatest possible account of Parliament's wishes as expressed in the first reading. Where it has not been able to incorporate an amendment, either partially or not at all, this is for one or several of the following categories of reason: the amendment, either on its own or in combination with other amendments, would seriously upset the balance of the Commission's proposal; the amendment includes measures that would be impossible to implement in practical terms, in the Commission's view; the amendment presents, in the Commission's view, serious legal difficulties. 2. 2 Explanation of the amendments incorporated The right-hand column of the attached document constitutes the Commission's amended proposal. The amendments are underlined. The left-hand column represents the Commissions initial proposal and is provided for ease of reference. 3 4 OJC185, p. 4, 19. 07. 1995 EP 196. 583 d cx Recital 5(a) incorporates in part Parliament's amendment no. 35. This is because the Commission considers that while it is acceptable to state that future Community legal measures must be compatible with existing measures in the same field, to go beyond such a statement would prejudge the outcome of future legislative processes. Recital 9 incorporates a change made necessary by Parliament's amendment no. 22 which has been partially incorporated into Article 2(3). Recital 11 incorporates a change made necessary by Parliament's amendment no. 28 the spirit of which has been incorporated into Article 3(2). Recital 15a corresponds to Parliament's amendment no. 88. Recital 17a corresponds to Parliament's amendment no. 10 (and, in part, no. 4). Recitals 21 (a) to (c) correspond to Parliament's amendment no. 35. The Commission considers that while it is useful, for the purposes of the implementation of Article 5, to have a guideline definition of what is meant by the term "independent producer", it would be too prescriptive, given the very diverse nature of the independent production sector in the Member States, to include such a definition in an Article. It is therefore proposed to include the definition in a recital. Moreover, the actual definition must be flexible enough to take account of this diversity. For example, in some smaller Member States there are very few broadcasters (in some cases, such as Austria and Ireland, there is currently only one). It is not possible therefore to stipulate in absolute terms that a producer is only independent if he or she does not supply to the same broadcaster more than 90% of the works he or she produces. A further useful criterion 6f independence to be taken into account is the degree to which the producer retains the right to exploit the work on secondary markets (eg. after first broadcast or after a certain time) as suggested by the amendment. Recital 22a refers to Article 1 new paragraph (d) (definition of television advertising) and Article 18(1) which have been modified to take account of Parliament's Amendment no. 20 (in as far as the matter is not already covered by the current definition). Recital 23 is modified to incorporate partially Parliament's amendment no. 12. Recital 24 takes account, in part, of Parliament's amendment no. 52. It also incorporates changes made necessary by the amendment of Article 22 (2) which itself now takes account of Parliament's amendment no. 76. This is the first of Parliament's amendments to be incorporated into the text of the amended proposal following the order of the recitals. However, it should be noted that Amendment no. 1 is identical to recital no. 16 of the 1989 Directive. This recital remains valid as it is not affected by the Directive amending the 1989 Directive and therefore there is no need (and it is not possible) to incorporate Amendment no. 1 into the Commission's amended proposal (as it is already in the 1989 text). *. ft- Recital 24a is included to take account of Parliament's amendments no. 14, 15, 62 and 55 (the latter being the so-called "V-chip" amendment); it corresponds to new Article 22b included to take account of the same series of amendments. Recital 25 is modified to incorporate Parliament's amendment no. 26 which itself relates to Article 3(1). It should be pointed out that Article 3(1), which states that Member States remain free to require television broadcasters under their jurisdiction to comply with more detailed or stricter rules than those laid down by the Directive, does not as such create any legal obligation for the Member States. It therefore makes no difference, in legal terms, whether the list of areas in which Member States may take such measures and, which is indicative in nature, is included in an Article or in a recital. The Commission has a preference for the latter for reasons of presentation and clarity. Article 1 new paragraph (b). The Commission accepted this part of Parliament's amendment no. 18 because it considers that it is an improvement, in terms of legal security, to include this definition of what is meant by the term "television programme" in Article 1(a) (the weakness of which is due to the fact that television broadcasting is defined by reference to television programmes giving rise to a somewhat circular definition). However, this addition does not change the scope of the definition of television broadcasting, which is circumscribed by the terms "to the public" and "it does not include communication services — on individual demand". The Commission explained in the Explanatory Memorandum to the initial proposal why it considers that it would be inappropriate to extend the scope of this Directive beyond that of the 1989 text (i. e. the point-to-multipoint transmission of television programmes intended for reception by the public). Article 1 new paragraph (c) corresponds to Parliament's amendment no. 19. The Commission considers that it is useful to include a definition of the organisations which have to comply with the national provisions transposing those of the Directive. The definition proposed matches the one proposed by Parliament with the one used in the Council of Europe's Transfrontier Television Convention. It is based on three essential elements: it concerns natural or legal persons (as in the Convention) who have editorial responsibility for the composition of schedules of television programmes (this corresponds to the 2nd and 3rd parts of Parliament's definition and to the 2nd part of the Council of Europe's definition) who transmits, or has transmitted, these programmes (the 3rd part of the Council of Europe's definition). a c Article 1(d). This is paragraph (b) of the 1989 text modified to take account of amendment no. 20. It should be seen in conjunction with recital no. 22a. The purpose is to make it clear that the basic consumer protection rules in Articles 10 to 16 apply to self-promotional forms of advertising (see also amended Article 18). Article 1 (g) is paragraph (e) of the Commission's proposal modified to take account of amendment no. 21 and to align the reference to goods and services with the one in new paragraph (d). Article 2 paragraphs 2. 3 and 4 have been modified to take account of amendments no. 22, 23 and 24 (jurisdiction criteria). The Commission agrees that it is important to provide for detailed criteria making it possible to determine, with a sufficient degree of clarity and by reference to the specific nature of the activities involved, the place of establishment of the broadcaster for the purpose of determining which Member States has jurisdiction. However, this implies an exhaustive hierarchical arrangement of the three specific criteria that have been chosen (head office, place where editorial decisions are taken, and place where a significant part of the workforce is located) in order to take account of all the possible combinations of the criteria. Failure to establish a hierarchical order would give rise to positive conflicts (several States claiming jurisdiction) or negative conflicts (legal vacuum). Moreover, the Commission cannot accept paragraph (c) of amendment 23 for the following reasons: by introducing the criterion of the State for which the programmes are intended it reverses the "home country control principle" of the Directive and would make it unworkable; it is contrary to the logic of the Treaty; it is self-defeating, as the result would be that jurisdiction could not be determined on the basis of the three chosen criteria and therefore would have to be determined on the basis of the purely technical criteria contained in paragraph 4 (frequency, satellite capacity or up-link). Article 2a has been modified to take account partially of amendment 24. However, the Commission cannot accept the part of the amendment that extends to advertising a procedure designed to deal with grave violations of the rules on protection of minors in programmes. It would be wholly inappropriate to confuse these two very different issues. Moreover, it would reverse in one field the "home country control" principle and thereby make the Directive unworkable. Article 3 paragraph 2 has been modified to take account of amendments no. 27 (effective compliance) and 28 (third party redress ). (Amendment no. 35 has been incorporated into recital no. 21a - see above). Article 6 paragraph 1 incorporates a new sub-paragraph (d) which the Commission considers necessary in view of certain recent developments in the broadcasting legislation of some of the European third countries referred to in sub-paragraphs (b) and (c). This d a addition also corresponds in part to what the Commission construes as being the spirit of Parliament's amendment no. 36. Article 7 is modified to incorporate partially amendment no. 37. The wording of the first sentence emphasizes that windows are first and foremost a matter for the contracting is adjusted according to the amendment. parties. The duration of the windows However, the Commission considers that the provision in sub-paragraph (b) referring to works co-produced by the broadcaster renders the last paragraph in the amendment superfluous. Moreover, it is not possible, in the internal market, to take any other date than that of first release in the Community as the starting date for the various windows. Article 9 incorporates a change that corresponds in part to amendment no. 38. Articles 10 and 11 now incorporate references to teleshopping as in amendments no. 39, 40 and 42. Article 11(3) incorporates the part of amendment no. 41 referring to films produced for television. The Commission cannot accept the part of the amendment stating that the basis for the calculation of the number of breaks allowed should be scheduled duration "exclusive of all interruptions". This would impose an unnecessary restriction that would impact very negatively on broadcasters' revenue streams. Articles 12 (c) incorporates amendment no. 43. Article 14 has been modified to incorporate the essence of the 2nd part of Parliament's amendment no. 44 with wording that is compatible with existing Community regulations. The first part of the amendment is not acceptable as it reverses the home country control principle of the directive and is incompatible with Court of Justice case law (notably the "Bond van Adverteeders" judgement, CJCE 352/86 of 24. 04. 1988). However, a wide prohibition on teleshopping for medical products, by reference to existing Community regulations, can be justified on the one hand by public health concerns, and on the other, by the fact that teleshopping differs from advertising and sponsorship in that it entails a much more direct relationship with the final consumer. Article 17 includes a new paragraph 2a that incorporates changes that reflect the development of the debate on sponsorship of programmes by pharmaceutical companies since the Commission's initial proposal. Article 18 incorporates changes deriving in part from amendments 45 and 46. However, the Commission is of the opinion that it is neither desirable nor possible to exclude forms of advertising other than spot advertising. It also incorporates a change relating to announcements made by broadcasters in connection with their own programmes that is made necessary by the amended definition of "television advertising" in Article 1 in order to avoid such announcements having to be counted within the daily advertising limit. Article 18a reflects amendment no. 74 on teleshopping within channels other than teleshopping channels. 4--Û- Article 19 corresponds to Article 18b in the Commission's initial proposal concerning teleshopping channels and other channels devoted exclusively to commercial promotion. The Commission does not consider it appropriate to place quantitative restrictions of the type that apply, by virtue of Article 18, to conventional channels on channels exclusively devoted to forms of commercial promotion or direct selling. The latter have a different purpose and do not compete on the same market segments as the former. Article 20 incorporates a change that brings it into line with the terminology used in Article 9 and incorporates in part amendment no. 51. Article 22 (2) corresponds to amendment no. 76 in particular and to concerns about the protection of minors in general as expressed in amendments nos. 14, 15, 62, 52 and 55 (see also recital no. 24). However, the Commission considers that it could be unnecessarily prescriptive to require a programme that is already encoded to incorporate warning signals. Moreover, one or other of the forms of warning (acoustic or visual) is sufficient to achieve the purpose of alerting the viewers. Article 22 (b) includes a new second paragraph that corresponds in particular to amendments nos. 62 and 55 (see also recital no. 24a). The Commission considers that the "V-chip" is an interesting development that could provide an effective way of ensuring greater parental control. However, this idea requires further investigation before it can be incorporated into binding legal measures at Community level. In particular, the matter of the rating system poses specific problems in the context of transfrontier television in Europe. Furthermore, the inter play between the "V-chip" and existing family viewing policies, including watersheds at specific times, requires in-depth analysis in order to be sure that the new development will complement rather than undermine existing measures. Finally by taking the time needed to analyze all these questions, Europe will also be able to benefit from the experience that will be gained by the United States and Canada in implementing V-chip legislation. Article 26 corresponds partially to amendment no. 58. The Commission agrees that developments in the field of television broadcasting need to be taken into account in the implementation of the Directive, including any future revision, but considers that to limit the scope of the analyses that will be required to services operating solely on individual demand would be to adopt too narrow an approach. This is why the Commission prefers the wider notion of technological developments in general. S Amended proposal for 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 9 INITIAL PROPOSAL AMENDED PROPOSAL THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, 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 Treaty establishing the European Community, and in particular Articles 57(2) and 66 thereof, Having regard to the proposal from the Commission1, Having regard to the proposal from the Commission, Having regard Economic and Social Committee2, the opinion of the to Having regard the opinion Economic and Social Committee, to of the Acting in accordance with the procedure referred to in Article 189b of the Treaty3, Acting in accordance with the procedure referred to in Article 189b of the Treaty, 1. Whereas Council Directive 89/552/EEC4 constitutes for legal broadcasting in the internal market; framework the Whereas Council Directive 89/552/EEC constitutes for legal broadcasting in the internal market; framework the 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 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; 26 Whereas Article 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 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; OJN' OJN* OJN" OJNTL298, 17. 10. 1989, p. 23 3. Whereas the application of Directive 89/552/EEC and its application have revealed the need to clarify certain definitions or obligations on Member States under this Directive; the report on Whereas the application of Directive 89/552/EEC and its application have revealed the need to clarify certain definitions or obligations on Member States under this Directive; the report on in the Commission 4. Whereas its Communication of 19 July 1994 entitled "Europe's way to the information society. An action" 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 sector opened up by new technologies,. while at the same time taking into account in particular the cultural and sociological audiovisual programmes, impact, whatever their mode of transmission; the specific nature, this of in Whereas its the Commission Communication of 19 July 1994 entitled "Europe's way to the information society. An action" 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 sector opened up by new technologies, while at the same time taking into account in particular the cultural and sociological impact, audiovisual programmes, whatever their mode of transmission; the specific nature, this of 5. Whereas the Council welcomed this action plan at its 1787th meeting on 28 September 1994 and stressed the need to. the improve European audiovisual industry; the competitiveness of Whereas the Council welcomed this action plan at its 1787th meeting on 28 September 1994 and stressed the need to improve the the European of competitiveness audiovisual industry; 5a. Whereas the addition of a definition of a "television programme" shall bv no means be interpreted as extending the scope of application of this Directive, to new services such as video-on-demand and on line or internet type services and 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 circulation of services: 6. 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 for a revision of Directive proposal 89/552/EEC before their next meeting; the Heads of State and Whereas Government meeting at the European Council in Essen on 9 and 10 December 1994 called on the Commission to present a for a revision of Directive proposal 89/552/EEC before their next meeting; to 7. Whereas the application of Directive 89/552/EEC has revealed the need to clarify the concept of jurisdiction as applied the audiovisual sector; specifically whereas, in view of the case law of the Court of the European Communities, the establishment criterion should be made the principal criterion determining the jurisdiction of a particular Member State; Justice of to Whereas the application of Directive 89/552/EEC has revealed the need to clarify the concept of jurisdiction as applied the audiovisual sector; specifically whereas, in view of the case law of the' Court of the European Communities, the establishment criterion should be made the principal criterion determining the jurisdiction of a particular Member State; Justice of 8. Whereas the concept of establishment according to the criteria laid down by the ODUrt of Justice in its judgment of 25 July 1991 in Factortame5. involves the actual pursuit of an economic activity through a fixed establishment for a indefinite period; 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. involves the actual pursuit of an economic activity through a fixed establishment for a indefinite period; 9. Whereas the establishment of a television broadcasting organization, for the purpose of Directive 89/552/EEC, as amended by this Directive, 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, provided that a significant proportion of the workforce required for the pursuit of the television broadcasting activity is located in the same Member State; Whereas the establishment of a television broadcasting organization, for the purpose of Directive 89/552/EEC, as amended by this Directive, 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 is television broadcasting activity located: Case C-221/89, Queen v Secretary of State for Transport, ex parte Factortame. [1991] ECR 1-3905, para. 20. 4 9a. Whereas the fixing of a series of material criteria is designed to determine bv 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 the 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, if the question as to which Member State has jurisdiction cannot be determined according to these material criteria, the competent Member State is that in which the broadcaster is established within the meaning of Article 52 and the following of the EC Treaty: 10. Whereas the Court of Justice has constantly held6 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; 11. Whereas any interested party in the Community must be able to assert its rights in the competent courts of the Member State with jurisdiction over the television broadcasting organization that is failing to comply with the national provisions arising out of the application of this Directive; take measures against a Whereas the Court of Justice has constantly held that a Member State retains the right to 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 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; if Whereas directly affected third parties, including nationals of other Member States, must be able to assert their rights in the competent courts or administrative bodies of the Member State with jurisdiction over a television broadcasting organization that may be failing to comply with the national provisions arising out of the application of this Directive; 12. 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 in Article 2 of conditions Directive they comply with Community law and the international obligations of the Community; laid down 89/552/EEC, provided 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 in Article 2 of conditions Directive they comply with Community law and the international obligations of the Community; laid down 89/552/EEC, provided from differences 13. Whereas in order to eliminate the obstacles arising in national legislation on the promotion of European works, Directive 89/552/EEC contains provisions aimed at harmonizing these regulations; whereas those provisions which, in general, permit the liberalization of provisions harmonizing the conditions of competition; trade must contain from differences Whereas in order to eliminate the obstacles arising in national legislation on the promotion of European contains works, Directive 89/552/EEC provisions aimed at harmonizing these those provisions regulations; whereas which, in general, permit the liberalization of provisions harmonizing the conditions of competition; trade must contain See, in particular, the judgments in Case 33/74, Van Binsbergen v Bestuur van de BedrijfsvereniRing. [1974] ECR 1299 and in Case C-23/93. TV 10 SA v Commissariaat voor the Media f 19941 ECR 1-4795 14. Whereas, moreover, Article 128(4) of the Treaty requires the Community to take cultural aspects into account in its action under other provisions of the Treaty; Whereas, moreover, Article 128(4) of the Treaty requires the Community to take cultural aspects into account in its action under other provisions of the Treaty; to strengthen 15. Whereas the Green Paper on "Strategy options the European programme industry in the context of the audiovisual policy of the European Union", adopted by the Commission on 7 April 1994, emphasizes in particular the need to step up measures to promote European works in order to further the development of the sector; 15(a) to for improving in addition the Communication on 16. Whereas, the considerations cited above, it is necessary to create conditions the competitiveness of the programme industry; the whereas application of Articles 4 and 5 of Directive 89/552/EEC , adopted by the Commission on 3 March 1994 pursuant to Article 4(3), shows that the measures to promote European works can contribute to such an improvement, but that they need to be modified to take account of developments in the field of television broadcasting. to strengthen Whereas the Green Paper on "Strategy options the European programme industry in the context of the audiovisual policy of the European Union", adopted by the Commission on 7 April 1994, emphasizes in particular the need to step up measures to promote European works in order to further the development of the sector; broadcasting organizations, Whereas programme makers, producers, authors and other experts should develop more detailed concepts and strategies aimed at developing European audiovisual fiction films that are addressed to a large audience: the Communication on Whereas, in addition to the considerations it is necessary to create cited above, conditions the improving for competitiveness of the programme industry; the whereas application of Articles 4 and 5 of Directive 89/552/EEC , adopted by the Commission on 3 March 1994 pursuant to Article 4(3), shows that the measures to promote European works can contribute to such an improvement, but that they need to be modified to take account of developments in the field of television broadcasting; 17. Whereas, if Article 4 of Directive 89/552/EEC, as amended by this Directive, is effectively implemented over a ten-year period, it should be possible, given the impact of the financial instruments available to the Community and the Member States, to achieve the objective of strengthening the European programme industry; Whereas, if Article 4 of Directive 89/552/EEC, as amended by this Directive, is effectively implemented over a ten-year period, it should be possible, given the impact of the financial instruments available to the Community and the Member States, to achieve the objective of strengthening the European programme industry; 17(a) Whereas the Media II programme, which seeks to promote training and distribution in the audiovisual sector, is also designed to enable the production of European works to be developed: 18. Whereas it is necessary to ensure the effective application of such measures throughout the Community in order to preserve free and fair competition between firms in the same industry; whereas the application of such measures could help to reinforce mutual trust between Member States; Whereas it is necessary to ensure the effective application of such measures throughout the Community in order to preserve free and fair competition between firms in the same industry; whereas the application of such measures could help to reinforce mutual trust between Member States; 19. Whereas, at the end of the ten-year period, any national measures in this field must not interfere with the principle of free circulation of services by restricting the reception or retransmission of television broadcasts from other Member States; Whereas, at the end of the ten-year period, any national measures in this field must not interfere with free circulation of services by restricting the reception or retransmission of television broadcasts from other Member States; the principle of 20. Whereas the proportions of European works must be achieved taking economic realities into account; whereas, therefore, it is necessary to introduce a progressive system for achieving this objective; Whereas the proportions of European works must be achieved taking economic realities into account; whereas, therefore, is necessary to introduce a progressive system for achieving this objective; it 21. Whereas account should be taken of the specific nature of transmissions broadcast only in a language other than those of the Member States; Whereas account should be taken of the specific nature of transmissions broadcast only in a language other than those of the Member States; 21(a) 21(b) 21(c) of for the purposes the Whereas, implementation of the measures designed to promote works created bv producers who are independent of broadcasters, guideline criteria are needed whereby a producer may be deemed to be independent if : = the broadcaster holds no more than 25% of the share capital of the production company than one television broadcaster is involved): if more (50% = over a three-vear period the producer supplies to the same broadcaster no more than 90% of the works produced, the unless, over the same period, producer makes only one programme or only one series: = the producer does not hold a significant number of shares in a broadcaster: shall be Whereas, in applying the above criteria, due specific account characteristics States' audiovisual systems, in particular those of Member States with a lesser audiovisual capacity or a limited language area: taken of of Member Whereas Member States may also take into account the destination and ownership of secondary rights when assessing the criteria of independence: 22. Whereas the question of specific time scales for each type of television showing of cinematographic works is primarily a matter to be settled by individual contracts; whereas, however, the absence of agreements between the interested parties or professionals concerned, a schedule tailored to the needs at each stage in the showing of such works, should be drawn up; in Whereas the question of specific time scales for each type of television showing of cinematographic works is primarily a matter individual contracts; to be settled by whereas, however, the absence of in agreements between the interested parties or professionals concerned, a schedule tailored to the needs at each stage in the showing of such works, should be drawn up; 22(a) 23. Whereas, it is important to facilitate 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, by modifying the rules on transmission time; whereas, to ensure the full protection of consumer interests, teleshopping should be governed by a number of minimum standards regulating the form and content of broadcasts; 24. 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; Whereas transmission time allotted to to programme announcements relating schedules and derived products 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: 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 bv in place appropriate standards putting regulating form and content of broadcasts; the Whereas it is necessary to clarify the rules for the protection of the physical, mental and moral development of minors, in particular with regard to programmes which might disturb them psychologically: 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 protective measures of a technical nature or regarding the time of the broadcast should satisfy whereas latter programmes when moreover the broadcast in unencoded form should be identified through optical or acoustic means regardless of the time of the broadcast: legitimate concerns; 10 24(a) 24b. in sensibility it appears possible to Whereas, since harmonize national rules on the protection of minors only to a limited extent owing to differences and moral standards, the potentialities of technical filtering devices and appropriate rating systems at national and Community level, should be studied with a view to enabling filter out to parents and guardians programmes which might a detrimental effect on the mental and physical development of minors: whereas such rating systems should involve as much as possible bodies consisting of experts (educationalists and media specialists') set up in association with the broadcasting and producing organisations themselves with appropriate support from the competent national and European authorities: have Whereas the Commission, in liaison with Member State authorities, should conduct an in-depth analysis of these issues and possible measures involving : - i z i 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 measures educational awareness and with a view to presenting, if necessary before the deadline laid down in Article 26, the appropriate proposals for legislative or other measures. 11 through transmission 25. Whereas the Court of Justice has constantly held7 that the concept of services, as referred to in Articles 59 and 60 of the EEC Treaty, embraces the broadcasting of the television programmes, including the intermediary of cable operators; whereas in accordance with Article 3b of the Treaty action by the Community should not go beyond what is necessary to achieve its objectives in the sphere of television broadcasting; whereas the principle that Member States are free to lay down stricter or more detailed rules for the broadcasters under should be jurisdiction reaffirmed, their 25a. to the achieve the approach in Directive Whereas 89/552/EEC and this Directive has been adopted essential harmonisation necessary and sufficient to ensure the free circulation of television broadcasts in the Community will not be restricted for reasons which fall within the coordinated fields: whereas Member States remain free to apply to broadcasters under their jurisdiction more detailed or stricter rules in these fields: these rules, which must be compatible with Community law7, may concern, inter alia, the achievement of language policy goals and the taking into account of the public interest in terms of role as a provider of television's information, culture and education, entertainment and the need to safeguard pluralism in the information industry and the media: to ensure Whereas this Directive does not affect Member States' capacity to take measures in the protection of order competition with a view to avoiding the abuse of dominant positions and/or the establishment or strengthening of dominant positions bv mergers, agreements, acquisitions and similar initiatives: 26. Whereas Article B of the Treaty on European Union states that one of the objectives the Union shall set itself is to maintain "acquis full in communautaire", the Whereas Article B of the Treaty on European Union states that one of the objectives the Union shall set itself is to maintain "acquis full in communautaire", the 7 (initial proposal) See, in particular, the judgments in Case 155/73, Sacchi, [1974] ECR 409 and in Case 52/79, Procureur du Roi v Debauve. [1980] ECR 833. 7 (amended proposal) See the judgement in Case C-412/93, Leclerc-Siplec. [1995], ECR 1-179. 12 HAVE ADOPTED THIS DIRECTIVE: HAVE ADOPTED THIS DIRECTIVE: Article 1 Article 1 Directive 89/552/EEC follows: is amended as Directive 89/552/EEC is amended as follows: 1. Article 1 is amended as follows: 1. Article 1 is amended as follows: (a) point (b) is replaced by the following: (a) point (b) is replaced by the following: "(b) "television programme" within the meaning of paragraph (a) means an animated or non-animated sequence of images which may or mav not be accompanied bv sound. " (b) point (c) is replaced by the following : "(c) "broadcaster" means the natural or legal person who has editorial responsibility for the composition of schedules of television programmes within the meaning of paragraph (b) and who transmits them or has them transmitted bv a third party. " 13 (c) point (d) is replaced by the following : "(b) "television advertising" means any form of announcement broadcast in return for payment or for similar consideration by a public or private undertaking in connection with a trade, business, craft or profession in order to promote the supply of goods including services, immovable property, or rights and obligations, in return for payment. It does not include teleshopping;" or "(d) "television advertising" means any form of announcement broadcast, whether in return for payment or for similar consideration or for self- promotional purposes, by a public or private undertaking in connection trade, business, craft or with profession in order to promote the supply of goods or services, including immovable property, or rights and obligations, in return for payment;" (d) point (c) in Article 1 of Directive 89/552/EEC becomes point (e) (e) point (d) in Article 1 of Directive 89/552/EEC becomes point (f) (b) the following point (e) is added: (f) the following point (g) is added : "(e) "(g) "teleshopping" means television programmes and spots containing direct offers to the public with a view to the sale, purchase or rental of products or with a view to the supply of services in return for payment;" "teleshopping" means direct offers broadcast to the public with a view to the supply of goods or services, including immovable property, or rights and obligations, in return for payment". 14 2. Article 2 is replaced by the following: 2. Article 2 is replaced by the following: "Article 2 "Article 2 1. Each Member State shall ensure that all 1. television broadcasts transmitted by broadcasters under jurisdiction comply with the rules of the system of law applicable to broadcasts intended for the public in that Member State. its Each Member State shall ensure that all television broadcasts transmitted by broadcasters under jurisdiction comply with the rules of the system of law applicable to broadcasts intended for the public in that Member State. its 2. The broadcasters under the jurisdiction 2. For the purpose of this directive the broadcasters under the jurisdiction of a Member State are those established in the territory of that Member State according to paragraph 3 as well as those to whom paragraph 4 applies. of a Member State are those established in the territory of that Member State, in which fixed they must have a establishment and actually pursue an economic activity. 3. For the purposes of this directive, a broadcaster is 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 that Member State's are territory: taken in 15 (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 the to be established deemed 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: in (ç) if a broadcaster has its head office in a Member State but decisions on programme schedules are taken in a non-member state, 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 which are not established in the territory of a Member State according to paragraph 3 are deemed to be under the jurisdiction of a Member State in the following cases : 3. Broadcasters established outside the territory of the Community shall also be under the jurisdiction of a Member the State following conditions: they satisfy one of if 16 (a) they use a frequency granted by that (a) they use a frequency granted by that Member State, Member State, (b) although they do not use a frequency granted by a Member State, they do use a satellite capacity 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 nor a satellite capacity granted by a Member State, they do use a satellite up-link situated in 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. intended exclusively to This Directive shall not apply for broadcasts reception in third countries, and which are not received directly or indirectly by the public in one or more Member States. " 5. This Directive shall not apply intended exclusively to for broadcasts reception in third countries, and which are not received directly or indirectly by the public in one or more Member States. " 17 3. The following Article 2a is inserted: 3. The following Article 2a is inserted: "Article 2a "Article 2a not and their Member States shall ensure freedom of restrict reception shall retransmission on territory of television broadcasts from other Member States for reasons which fall within the fields coordinated by this Directive. They take may, appropriate reception and/or measures suspend television broadcasts if the following conditions are fulfilled: to retransmission provisionally, restrict of not and their Member States shall ensure freedom of reception restrict shall retransmission on territory of television broadcasts from other Member States for reasons which fall within the fields coordinated by this Directive. They may, provisionally, derogate from the above if the following conditions are fulfilled: (a) a television broadcast coming from another Member State manifestly, seriously and gravely infringes Article 22 and/or Article 22a; (a) a television broadcast coming from another Member State manifestly, seriously and gravely infringes Articles 22 or 22a; (b) during the previous 12 months, the the same least two prior broadcaster has infringed provision(s) on at occasions; (b) during the previous 12 months, the the same least two prior broadcaster has infringed provisions) on at occasions; the broadcaster and (c) the Member State concerned has notified the Commission in writing of the alleged infringements and of its intention to to restrict reception take measures and/or suspend retransmission should any such infringement occur again; (c) the Member State concerned has notified the the broadcaster Commission in writing of the alleged infringements and of the measures it take should any such intends infringement occur again; and to (d) consultations with the transmitting State and the Commission have not produced an amicable settlement within 15 days of the notification provided for in point (c), and infringement persists. the alleged (d) consultations with the transmitting State and the Commission have not produced an amicable settlement withins 15 days of the notification provided for in point (c), and infringement persists. the alleged 18 The Commission shall, within no more than two months following notification of the measure taken by the Member State, take a decision on whether is law. If it compatible with Community decides that it is not, the Member State will be required to put an end to the measure in question as a matter of urgency. the measure The Commission shall, within no more than two months following notification of the measure taken by the Member State, take a is decision on whether it compatible with Community decides that it is not, the Member State will be required to put an end to the measure in question as a matter of urgency. the measure law. If in the first The provision referred to paragraph is 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. " is without prejudice in the first The provision referred to paragraph the to 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 is replaced by the following: 4. Article 3 is replaced by the following: "Article 3 "Article 3 1. Member States shall remain free to 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. require television broadcasters under their jurisdiction to comply with more detailed or stricter rules in the areas covered by this Directive. These rules, which must be compatible with Community law, may concern, inter alia: the achievement of goals; language policy the taking into account of the public interest in terms of television's role as a information, education, provider of culture and entertainment and the need to the information industry and the media. safeguard pluralism in 19 2. Member States shall, by appropriate means, ensure,. within the framework of that their television legislation, broadcasters under their jurisdiction comply with the provisions of this Directive. legislation, Member States shall, by appropriate means, ensure, within the framework of their television broadcasters under their jurisdiction effectively comply with the provisions of this Directive. that to applicable Each Member State shall determine the television penalties broadcasting organizations under their jurisdiction who do not comply with the adopted provisions implementation of this Directive, which penalties shall be sufficient to enforce compliance. for include The measures the shall 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. " 3. Member States shall also provide in their legislation, as regards television broadcasting organizations under their the possibility of jurisdiction, invoking interim measures aimed at remedying an the provisions of this Directive, if necessary broadcasting by licence. " infringement of suspending the for 5. Article 4 is replaced by the following: 5. Article 4 is replaced by the following: "Article 4 "Article 4 1. Member States shall, by appropriate means, ensure that broadcasters reserve for European works, within the meaning of Article 6, a majority proportion of their transmission time, excluding the time appointed to news, sports events, and advertising, games, teleshopping services. teletext 1. Member States shall, by appropriate means, ensure that broadcasters reserve for European works, within the meaning of Article 6, a majority proportion of their transmission time, excluding the time appointed to news, sports events, games, and advertising, teleshopping services. teletext 20 or the and time appointed teleshopping, In the case of channels which devote at least 80% of their transmission time, to excluding to advertising drama, cinematographic works, documentaries animation, Member States shall allow television broadcasting organizations to choose first between complying with paragraph or allocating 25% of their programming budget to European works within the meaning of Article 6. For the this Directive, purposes the "programming budget" means acquiring, accounting cost and commissioning, co-producing all those programmes broadcast by the channel in question in any given year. producing the of of or the and time appointed teleshopping, In the case of channels which devote at least 80% of their transmission time, to excluding advertising to drama, cinematographic works, documentaries animation, Member States shall allow television broadcasting organizations to choose first between complying with paragraph or allocating 25% of their programming budget to European works within the meaning of Article 6. For the this Directive, purposes "programming budget" means the acquiring, accounting cost and commissioning, co-producing all those programmes broadcast by the channel in question in any given year. producing the of of to referred proportions The in paragraphs 1 and 2 shall be attained progressively, in stages, no later than three years after the date of the first broadcast by the channel in question. to referred The proportions in paragraphs 1 and 2 shall be attained progressively, in stages, no later than three years after the date of the first broadcast by the channel in question. Channels broadcasting entirely in a language other the than Member States are not covered by the provisions of this Article or those of Article 5. those of Channels broadcasting entirely in a language other the than Member States are not covered by the provisions of this Article or those of Article 5. those of the Member States shall provide Commission with a report on the application of this Article and Article 5 every two years from the date of adoption of this Directive. the Member States shall provide Commission with a report on the application of this Article and Article 5 every two years from the date of adoption of this Directive. 21 the Member State That report shall in particular include a statistical statement on the achievement of the proportion referred to in this Article and Article 5 for each of the channels falling within the jurisdiction concerned. of Member States the Commission of the reasons for the failure to attain those proportions and the measures they are taking in each case television broadcasting organization does actually attain them. shall notify to ensure that the the Member State That report shall in particular include a statistical statement on the achievement of the proportion referred to in this Article and Article 5 for each of the channels falling within the jurisdiction concerned. of Member States the Commission of the reasons for the failure to attain those proportions and the measures they are taking in each case to ensure television broadcasting organization does actually attain them. shall notify that the t he a nd S t a t es The Commission shall inform the other M e m b er European Parliament of the reports, which shall be accompanied, where appropriate, by an opinion. The Commission shall ensure the application of in this Article and Article 5 accordance with the provisions of the Treaty. The Commission may take account in its opinion, in particular, of to progress achieved previous years, 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. " the share of relation in t he a nd S t a t es The Commission shall inform the other M e m b er European Parliament of the reports, which shall be accompanied, where appropriate, by an opinion. The Commission shall ensure the application of in this Article and Article 5 accordance with the provisions of the Treaty. The Commission may take account in its opinion, in particular, of to progress achieved previous years, 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. " the share of relation in 22 6. Article 5 is replaced by the following: 6. Article 5 is replaced by the following: "Article 5 "Article 5 Member States shall ensure, by appropriate means, that broadcasters reserve at least 10% of their transmission time, excluding the time appointed to news, sports events, and games, teletext services, or alternately, at the discretion of the Member States, at least 10% of their programming budget, for European works created by producers who are independent of broadcasters. teleshopping advertising, Member States shall ensure, by appropriate means, that broadcasters reserve at least 10% of their transmission time, excluding the time appointed to news, sports events, and games, teletext services, or alternately, at the discretion of the Member States, at least 10% of their programming budget, for European works created by producers who are independent of broadcasters. teleshopping advertising, This proportion must be achieved by earmarking at least 50% for recent works, that is to say works transmitted within five years of their production. " This proportion must be achieved by earmarking at least 50% for recent works, that is to say works transmitted within five years of their production. " 7. Article 6 is amended as follows: 7. Article 6 is amended as follows: (a) in paragraph 1, point (a) is replaced by (a) in paragraph 1, point (a) is replaced by the following: the following: "(a) works originating from Member "(a) works originating from Member States" States" and a new point (d) is added: "(d) the application of the provisions of paragraphs (b) and (c) is conditional on works originating from Member States not being the subject of discriminatory measures in the third countries concerned. " 23 (b) paragraph 3 following: is replaced by the (b) paragraph 3 following: is replaced by the '3. The works referred to in point (c) of paragraph 1 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. " "3. The works referred to in point (c) of paragraph 1 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. " (c) the following paragraph 3a is inserted: (c) the following paragraph 3a is inserted: "3a. 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 to be European works deemed 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 producers or more established outside the territory of the Member States. " one "3a. 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 to be European works deemed 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 producers or more established outside the territory of the Member States. " one (d) in paragraph 4, the words "and paragraph 3a" are added after the words "within the meaning of paragraph 1"; (d) in paragraph 4, the words "and paragraph 3 a" are added after the words "within the meaning of paragraph 1"; 24 8. Article 7 is replaced by the following: 8. Article 7 is replaced by the following: "Article 7 "Article 7 limits broadcasting Rightsholders and broadcasters shall agree time for cinematographic works. In the absence of such agreements, television broadcasting organizations shall not broadcast any cinematographic work until the following periods have elapsed since the work was first shown in cinemas in one of the Member States: agreed otherwise between Unless rightholders and broadcasters, the latter shall not broadcast any cinematographic work until eighteen months have elapsed since the work was first shown in cinemas in one of the Member States. This period shall be reduced to twelve months : (a) six months for pay-per-view services; (a) for pav-per-view and pay-television channels; (b) in the case of cinematographic works co-produced bv the broadcaster. " (b) twelve months for pay-television services other than those referred to in (a); (c) eighteen months for services other than those referred to in (a) and (b). Member States shall ensure that the television broadcasting organizations under these jurisdiction comply with their provisions. " 9. Article 8 is deleted. 9. Article 8 is deleted. 9a. Article 9 is replaced by the following : "Article 9 This chapter shall not apply to television broadcasts intended for local audiences and that do not form part of a national network. " 10. The title of Chapter IV is replaced by 10. The title of Chapter IV is replaced by the following: the following: "Television advertising and sponsorship, "Television advertising, sponsorship and and teleshopping" teleshopping" 25 10a. Article 10 is 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. spots 3. Advertising and teleshopping shall not use subliminal techniques. 4. Surreptitious advertising and teleshopping shall be prohibited. " 11. In Article 11, paragraph 3 is replaced by the following: 11. Article 11 is replaced by the following: "Article 11 advertisements "1. Advertisements and teleshopping shall be inserted between other programmes. Provided the conditions contained in paragraph 2 to 5 of this Article are and fulfilled, teleshopping may also be inserted during programmes in such a way that the the programme, taking into account natural breaks in and the duration and nature of the programme, and the rights of the rightsholders are not prejudiced. " and value of integrity 2. In in consisting of programmes autonomous parts, or sports programmes and similarly structured events and performances comprising and intervals, teleshopping shall only be inserted between the parts or in the intervals. " advertisements 26 "3. The transmission of feature films may be interrupted once for each complete further period of 45 minutes. A if interruption their is allowed least 20 scheduled duration is at minutes longer than two or more complete periods of 45 minutes. " 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 that 45 minutes, may '-be interrupted once for each period of 45 minutes. A further interruption is 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 advertisements or teleshopping spots, a period of at least 20 minutes should elapse between successive advertising break within the programme. each 5. Advertisements 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 shall not be interrupted by advertisements or by teleshopping when their scheduled duration is less than 30 minutes. If their scheduled duration is of 30 minutes or longer, the provisions of the paragraphs 1 to 4 shall apply. " 12. In Article 12, the introductory words 12. In Article 12, the introductory words are replaced by the following: are replaced by the following: "Television advertising and teleshopping "Television advertising and teleshopping shall not:" shall not:" and paragraph (c) following : is replaced by the offensive be philosophical or political beliefs;" religious, to "(c) 27 13. Articles 13 and 14 are replaced by the 13. Articles 13 and 14 are replaced by the following: following: "Article 13 "Article 13 All forms of television advertising and All forms of television advertising and teleshopping for cigarettes and other tobacco products shall be prohibited. teleshopping tobacco products shall be prohibited. for cigarettes and other Article 14 "Article 14 Television advertising and teleshopping for 1. Television advertising for medicinal products treatment and medical medicinal products and medical treatment available only on prescription in the available only on prescription the Member State within whose jurisdiction Member State within whose jurisdiction the the broadcaster falls shall be prohibited. broadcaster falls shall be prohibited. " in Teleshopping for medicinal products and medical treatment which are subject to a marketing authorization within the meaning of Directive 65/65/EEC8 as last amended bv Directive 89/343/EEC9 shall be prohibited. " 14. Article 15 is amended as follows: 14. Article 15 is amended as follows: (a) The introductory words are replaced by (a) The introductory words are replaced by the following: the following: "Television advertising and teleshopping for alcoholic beverages shall comply with the following criteria:" "Television advertising and teleshopping for alcoholic beverages shall comply with the following criteria:" OJ no. L22, 9. 2. 1965, p. 369 OJ no. L142, 25. 5. 1989, p. 14 28 (b) Points (a) to (f) are replaced by the (b) Points (a) to (f) are replaced by the following: following: "(a) they may not be aimed specifically at minors or, in particular, depict minors consuming such beverages; "(a) they may not be aimed specifically at minors or, in particular, depict minors consuming such beverages; (b) they shall not link the consumption of enhanced physical to alcohol performance or to driving; (b) they shall not link the consumption of physical enhanced alcohol performance or to driving; to (c) they shall not create the impression that the consumption of alcohol contributes towards social or sexual success; (c) they shall not create the impression that the consumption of alcohol contributes towards social or sexual success; (d) they shall not claim that alcohol has (d) they shall not claim that alcohol has therapeutic qualities or that it is a stimulant, a sedative or a means of resolving personal conflicts; therapeutic qualities or that it is a stimulant, a sedative or a means of resolving personal conflicts; (e) they shall not encourage immoderate consumption of alcohol or present abstinence or moderation in a negative light; (e) they shall not encourage immoderate consumption of alcohol or present abstinence or moderation in a negative light; (f) they shall not place emphasis on high alcoholic content as being a positive quality of the beverages. " (f) they shall not place emphasis on high alcoholic content as being a positive quality of the beverages. " 29 15. Article 16 is amended as follows: 15. Article 16 is amended as follows: (a) The introductory words are replaced by (a) The introductory words are replaced by the following: the following: "Television advertising and teleshopping shall not cause moral or physical detriment to minors and shall therefore comply with the following criteria for their protection:" "Television advertising and teleshopping shall not cause moral or physical detriment to minors and shall therefore comply with the following criteria for their protection:" (b) Points (a) to (d) are replaced by the (b) Points (a) to (d) are replaced by the following: following: "(a) they shall not directly exhort minors to buy a product or a service by exploiting inexperience or credulity; their "(a) they shall not directly exhort minors to buy a product or a service by exploiting inexperience or credulity; their (b) they shall not directly encourage minors to persuade their parents or others to purchase the goods or services being advertised; (b) they shall not directly encourage minors to persuade their parents or others to purchase the goods or services being advertised; (c) they shall not exploit the special trust minors place in parents, teachers or other persons; (c) they shall not exploit the special trust minors place in parents, teachers or other persons; (d) they shall not unreasonably show (d) they shall not unreasonably show minors in dangerous situations. " minors in dangerous situations. " 30 16. Article 17(2) following: is replaced by the 16. Article 17(2) is replaced by the following: "2. Television programmes may not be "2. Television programmes may not be sponsored by undertakings whose principal activity is the manufacture or sale of cigarettes and other tobacco products. Television programmes may not be sponsored by natural or legal persons whose principal the manufacture or sale of products, or the provision of services, the advertising of which is prohibited by Article 13. " activity is 2a. 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 and may not promote specific medical products or medical treatments on prescription. " available only 17. Article 18 is replaced by the following: 17. Article 18 is replaced by the following: "Article 18 "Article 18 1. The amount of advertising shall not 1. exceed 15% of the daily transmission time. However, this percentage may be increased to 20% if it includes forms of advertising other than advertising spots and/or teleshopping spots inserted in a service that is not exclusively devoted to teleshopping, on condition that the amount of spot advertising does not exceed 15%. The amount of transmission time of teleshopping spots, advertising spots and other means of advertising, with the exception of teleshopping windows in the sense 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 spot advertising within a 2 given clock hour shall not exceed 20%. " The amount of advertising spots and teleshopping spots within a given clock hour shall not exceed 20%. 3. For does the purposes of this article, advertising include announcements made bv the broadcaster in own programmes. " connection with not its 31 18. The following Articles 18a and 18b are 18. The following Article 18a is inserted : inserted: "Article 18a "Article 18a to Windows devoted teleshopping broadcast bv a channel not exclusively devoted to teleshopping shall be of a minimum uninterrupted duration of 15 minutes. Their overall duration shall not exceed three hours per day. They must as teleshopping windows by optical and/or acoustic means. " identified clearly be 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 or acoustic means. 2. Teleshopping programmes and spots must comply with the provisions of Council Directive [concerning consumer to distance protection with regard selling]10, and in particular with those provisions that relate to information on contractual obligations. Article 18b 1. Windows devoted to teleshopping and inserted in a service not exclusively devoted to this activity shall not exceed three hours in any twenty-four-hour period. 2. Services devoted exclusively to teleshopping shall not be subject to any scheduling restrictions as regards time- limits. " 19. Article 19 is deleted. 19. Article 19 is replaced by the following: "Article 19 Articles 18 and 18a shall not apply to channels exclusively devoted to advertising and/or teleshopping. " O J N oL 32 20. Article 20 is replaced by the following: 20. Article 20 is replaced by the following: "Article 20 "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 18b in respect of broadcasts intended solely for the national territory which cannot be received, directly or indirectly, in one or more other Member States. " 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 for local audiences which cannot be received, directly or indirectly by the public, in one or more other Member States. " 21. Article 21 is deleted. 21. Article 21 is deleted. 22. The title of Chapter V is replaced by 22. The title of Chapter V is replaced by the following: the following: "Protection of minors and public morality" "Protection of minors and public order" 23. Article 22 is replaced by the following: "Article 22 "Article 22 1. Member States shall take appropriate 1, that to ensure television measures broadcasts, trailers, by including broadcasters under their jurisdiction do not include programmes which might seriously impair the physical, mental or in moral development of minors, particular involve those pornography or gratuitous violence. that that to ensure Member States shall take appropriate measures television broadcasts by broadcasters under their jurisdiction do not any programmes, which might seriously impair the physical, mental or moral development of minors, in particular those involve pornography or that gratuitous violence. include 33 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 broadcasts. " 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 broadcasts. hear Furthermore, when such programmes are broadcast form Member States shall ensure that thev are preceded bv an acoustic warning or are identified bv the presence of a visual symbol throughout their duration. in unencoded such see or 24. The following Articles 22a and 22b are inserted: The following Articles 22a and 22b are inserted: "Article 22a "Article 22a Member States shall ensure that broadcasts do not contain any incitement to hatred on grounds of race, sex, religion or nationality. Member States shall ensure that broadcasts do not contain any incitement to hatred on grounds of race, sex, religion or nationality. Article 22b Article 22b The Commission shall attach particular importance to application of this chapter in the report provided for in Article 26. " 1. The Commission shall attach particular importance to application of this chapter in the report provided for in Article 26. investigation of 2. The Commission shall, in liaison with the competent Member State authorities, carry out an the possible advantages and drawbacks of further measures with a view to exercised by facilitating the control parents the or programmes that minors may watch. guardians over 34 24a. In Article 23, paragraph 1 is 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 incorrect assertion 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 is not hindered by the imposition of unreasonable terms or conditions. The reply shall be transmitted within a reasonable time subsequent to the request, in conditions as similar as possible to those of the broadcast the request refers to. 25. Article 25 is deleted. 26. Article 26 is replaced by the following: "Article 26 thereafter, two years Not later than the end of the third year after the date of the adoption of this Directive and every the Commission shall submit to the European Parliament, the Council and the Economic and Social Committee a report on the application of if necessary, make further proposals to adapt it to developments in the field of television in particular in the light of broadcasting, technological its developments adoption. " this Directive and, since 35 Article 2 Article 2 1. Member States shall bring into force 1. the laws, regulations and administrative provisions necessary to comply with this Directive not later than one year after the date of its adoption. They the immediately shall Commission thereof. inform Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive not later than one year after the date of its adoption. They the immediately shall Commission thereof. inform these When Member States adopt these shall contain a provisions, reference to this Directive or shall be accompanied by such reference at the time of their official publication. The procedure for such reference shall be adopted by Member States. these When Member States adopt these shall contain a provisions, reference to this Directive or shall be accompanied by such reference at the time of their official publication. The procedure for such reference shall be adopted 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. 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 Article 3 This Directive shall enter into force on the its following twentieth day publication in the Official Journal of the European Communities. that of This Directive shall enter into force on the its following twentieth day publication in the Official Journal of the European Communities. that of Article 1 point 5 shall be effectively applied for a period of ten years from the date of entry into force of this Directive. Article 1 point 5 shall be effectively applied for a period of ten years from the date of entry into force of this Directive. Article 4 Article 4 This Directive is addressed to the Member States. This Directive is addressed to the Member States. 36 ISSN 0254-1475 COM(96) 200 final DOCUMENTS EN 16 Catalogue number : CB-CO-96-210-EN-C ISBN 92-78-03593-9 Office for Official Publications of the European Communities L-2985 Luxembourg "3 }