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10.2.  The audiovisual Policy of the EU

    The audiovisual sector is not comparable to any other sector, because it offers a unique combination of features. Its widespread penetration provides almost complete coverage of the population across different broadcasting networks. It plays a central role in modern democratic societies, notably in the development and transmission of cultural, economic, social and political ideas and values. The European film and television programme industry, which plays a strategic role in the development of the audiovisual sector, is a prime vector of European culture and a living testimony to the traditions and identity of each country. It must, therefore, illustrate the creative genius and the personality of the peoples of Europe; but, to do this, it must be competitive in an open, worldwide market [COM/94/96].

    Protocol No 29 annexed to the treaty of Lisbon asserts that public broadcasting in the Member States is directly related to the democratic, social and cultural needs of each society and to the need to preserve media pluralism [see also section 6.6.4]. Member States may therefore provide for the funding of public service broadcasting in so far as such funding is granted to broadcasting organisations for the fulfilment of the public service remit as conferred, defined and organised by each Member State, and such funding does not affect trading conditions and competition in the Union.

    The audiovisual sector in Europe took on a totally new face at the end of the 1980s, with the rapid growth in broadcasting by cable and telecommunications satellites and the emergence of the first European direct broadcasting satellites. However, national markets in the Member States were too narrow to be able to offer at competitive rates the equipment and programmes required by the new technologies and the proliferation of channels. This was a handicap for the European audiovisual sector, which was expected to be one of the principal service sectors in the 21st century.

    Scattered and confined in their smallish national markets, European producers found themselves in conditions of uneven competition in the international arena as far as the costs were concerned. Europe should unify its audiovisual market to enable European producers to participate profitably in this technological revolution. Otherwise, it had to rely on powerful American and Japanese audiovisual industry, capable of covering cheaply international markets. American movies and serials and Japanese cartoons can defy world competition, because their cost is amortised on the large national market. European producers were doomed to disappear or be confined in their national markets.

    Therefore, a particular regulatory framework was necessary to permit the free provision of audiovisual services in the European space. To this end, the Audiovisual Media Services Directive (ex directive "television without frontiers") strengthens Europe's TV and audiovisual industry by reducing regulation and creating a level-playing field for audiovisual media services across borders while maintaining high consumer protection standards [Directive 2010/13]. It ensures that rules on the protection of minors and against incitement to hatred, based on race, sex, religion or nationality, apply to all audiovisual services (broadcast on fixed, mobile or satellite networks, including on-demand). Member States must ensure the prevention of any acts which may prove detrimental to freedom of movement and trade in television programmes or which may promote the creation of dominant positions which would lead to restrictions on pluralism and freedom of televised information and of the information sector as a whole. However, Member States may authorise innovative advertising tools such as split-screen advertising or product placement, giving producers and providers of TV programmes access to new forms of financing.

    The aims of the television without frontiers directive (replaced by the Audiovisual Media Services Directive) have broadly been met, with a substantial increase in the number of television channels in Europe, and especially in the United Kingdom, as well as in the broadcasting of European works and independent productions [COM/2000/442]. Member States have given themselves the means to achieve the overriding objectives of public interest that the Directive aims to safeguard [COM/2002/778]. According to the Court of Justice, the "Television without frontiers Directive" does not allow a Member State to apply to television broadcasts from other Member States a provision of domestic law, which prohibits the broadcasting of advertisements on television that are designed to attract the attention of children under 12 years of age [Joined Cases C-34/95, C-35/95 and C-36/95]. The Court has also ruled that the transmission and broadcasting of television signals comes within the rules of the Treaty relating to the provision of services and that there cannot be any discrimination in the application of legal rulings or taxing in respect of satellite dishes [Case C-260/89 and Case C-17/00]. According to the Directive coordinating certain rules concerning copyright and rights related to copyright applicable to satellite broadcasting and cable retransmission, broadcasting right Member States must provide an exclusive right for the author to authorize the communication to the public by satellite of copyright works [Directive 93/83].

    However, a "technological revolution" was underway with the introduction of high definition television (HDTV) that gives to the image an almost perfect quality and makes it possible for the image to be accompanied by four sound channels, thus permitting, for example, a stereophonic sound and the simultaneous transmission of dialogues in two languages at the choice of the spectator. To prepare this revolution, the European strategy on new technologies in the audiovisual sector sought the cooperation between the Member States for the promotion of the European standard for HDTV, the aid for technological development and the aid to audiovisual operators for launching services using the new technology [Decision 89/337 and Decision 89/630]. A single regulatory framework now covers the converging telecommunications, information technology and audiovisual sectors, including digital television [Directive 2002/21]. The so-called ''Framework Directive'' regulates electronic communications services, electronic communications networks, associated facilities and associated services. It lays down tasks of national regulatory authorities and establishes a set of procedures to ensure the harmonised application of the regulatory framework throughout the EU [see section 17.3.6].

    The ''MEDIA 2007'' programme of support for the European audiovisual sector (2007-2013) aspires to strengthen the audiovisual sector economically to enable it to play its cultural roles more effectively [Decision 1718/2006]. It aims, in particular, to (a) preserve and enhance European cultural and linguistic diversity and its cinematographic and audiovisual heritage; (b) increase the circulation and viewership of European audiovisual works inside and outside the European Union; (c) strengthen the competitiveness of the European audiovisual sector in the framework of an open and competitive European market favourable to employment. Upstream of audiovisual production it helps the acquisition and improvement of skills in the audiovisual field and the development of European audiovisual works. Downstream of audiovisual production it supports the distribution and promotion of European audiovisual works. The MEDIA Mundus programme (2011-2013) aims to increase the competitiveness of the European audiovisual industry, to enable Europe to play its cultural and political role in the world more effectively, to increase consumer choice and cultural diversity, to improve access to third-country markets and to build trust and long-term working relationships [Decision 1041/2009]. The EU participates in the European Audiovisual Observatory aimed at boosting the competitiveness of European audiovisual industry [Decision 1999/784, consolidated version 17.11.2004].

    Emphasising that national aid to the film and audiovisual industries is one of the chief means of ensuring cultural diversity and may contribute to the emergence of a European audiovisual market, the Council has confirmed that the Member States are justified in conducting national policies to support the creation of film and audiovisual products [Council Resolution]. Α Council recommendation proposes the development of the competitiveness of the European audiovisual and information services industry by promoting national frameworks aimed at achieving a comparable and effective level of protection of minors and human dignity [Recommendation 98/560]. Another recommendation aims to improve conditions of conservation, restoration and exploitation of the European film heritage and remove obstacles to the development and competitiveness of related industrial activities [Recommendation 2005/865].

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