The Television Without Frontiers Directive (TVWF Directive) is the cornerstone of the European Union’s audiovisual policy. It rests on two basic principles: the free movement of European television programs within the internal market, and the requirement for TV channels to reserve, whenever possible, more than half of their transmission time for European works or “broadcasting quotas”. The Television Without Frontiers Directive also safeguards certain important public interest objectives, such as cultural diversity, the protection of minors and the right of reply.
The Television Without Frontiers Directive aims to ensure the free movement of broadcasting services within the internal market and at the same time to preserve certain public interest objectives, such as cultural diversity, the right of reply, consumer protection and the protection of minors. It is also intended to promote the distribution and production of European audiovisual programs, for example by ensuring that they are given a majority position in television channels’ program schedules.
The Directive establishes the principle that Member States must ensure freedom of reception and that they may not restrict retransmission on their territory of television programs from other Member States. They may, however, suspend retransmission of television programs which infringe the Directive’s provisions on the protection of minors.
Directive (European Union)
A directive is a legal act of the European Union which requires Member States to achieve a particular result without dictating the means of achieving that result. It can be distinguished from regulations, which are self-executing and do not require any implementing measures. Directives normally leave Member States with a certain amount of leeway as to the exact rules to be adopted. Directives can be adopted by means of a variety of legislative procedures depending on their subject matter.
The text of a draft directive (if subject to the co-decision process, as contentious matters usually are) is prepared by the Commission after consultation with its own and national experts. The draft is presented to the Parliament and the Council, composed of relevant ministers of member governments, initially for evaluation and comment then subsequently for approval or rejection.
There are justifications for using a directive rather than a regulation: it complies with the EU’s desire for “subsidiarity”, it acknowledges that different member States have different legal systems, legal traditions and legal processes, and each Member State has leeway to choose its own statutory wording, rather than accepting the Brussels’ official terminology.
So, for example, while EU Directive 2009/20/EC (which simply requires all vessels visiting EU ports to have P&I cover) could have been done perfectly well as a regulation (without bothering Member States to implement the directive), the desire for subsidiarity was paramount and thus, a directive was the chosen vehicle.
The legal basis for the enactment of directives is Article 288 of the Treaty on the Functioning of the European Union which states that “To exercise the Union’s competences, the institutions shall adopt regulations, directives, decisions, recommendations and opinions. A regulation shall have general application. It shall be binding in its entirety and directly applicable in all Member States. A directive shall be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods. A decision shall be binding in its entirety upon those to whom it is addressed. Recommendations and opinions shall have no binding force”.
The Council can delegate legislative authority to the Commission and, depending on the area and the appropriate legislative procedure, both institutions can seek to make laws. There are Council directives and Commission directives. Article 288 does not clearly distinguish between legislative acts and administrative acts. Directives are binding only on the Member States to whom they are addressed, which can be just one Member State, or a group of them. In general, however, with the exception of directives related to the Common Agricultural Policy, directives are addressed to all Member States.
The Television Without Frontiers Directive
In order to encourage the distribution and production of European television programs, Member States must ensure where practicable that broadcasters reserve for European works a majority proportion of their transmission time, excluding the time allocated to news, sports events, games, advertising and teletext, and teleshopping services (Article 4).
Broadcasters must also reserve at least ten percent of their transmission time or ten percent of their programming budget for European works from independent producers (Article 5). The Commission is responsible for ensuring compliance with these two provisions. Member States are therefore required to provide it with a report every two years, including a statistical statement on fulfilment of the quotas referred to in Articles 4 and 5. Under certain circumstances, Member States are authorised to lay down stricter rules where necessary for purposes of language policy.
The TWF Directive, the forerunner to the AVMS Directive, is the main regulatory instrument for the audiovisual sector in Europe (Council of the EU, 1989). It was adopted in 1989 as a single-market initiative to establish a legal framework for the cross-border transmission of television programs. The directive was punctually amended in 1997 (European Parliament and Council of the EU, 1997), and more radically overhauled in 2007 (European Parliament and Council of the EU, 2007). It followed the paradigm of the European Convention on Transfrontier Television (ECTT), but had an altogether different motivation (Council of Europe, 1989).
While the ECTT was embedded in the cultural policy tradition of the Council of Europe and sought to encourage the free flow of information, the TWF Directive was inspired by the EU’s free-market orientation. It harmonised key areas that were particularly likely to hinder the free movement of television broadcasts across borders: the promotion of European works and works by independent producers; advertising, sponsorship and teleshopping; the protection of minors and public order; the right of reply; and, in its 1997 amended version, events of major importance to society.
The coordination of national broadcasting laws was partial in that it did not cover all areas, and minimum, in that member states were free to impose higher standards on their broadcasting industry if they so wished (European Court of Justice, 2007). Even though the directive’s primary objective was the opening up of national markets, some of its rules, such as the advertising restrictions and the rules on the protection of minors, coincidentally also protect the public interest.