The European Parliament and the Council of the EU are gearing up for further negotiations on Tuesday 7 November on the draft directive on audiovisual media services. During the Committee of Permanent Representatives to the EU (Coreper) on 27 October, the delegations approved the principles and compromises so far obtained. On the other hand, they are opposed to any encroachment on the country of origin principle (Articles 3 and 4).
It should be pointed out that the draft text presented in May 2016 seeks to create a fairer regulatory environment between traditional and over-the-top (OTT) services, introduce greater flexibility in the rules governing advertising and support European creativity through obligations to promote European content (see EUROPE 11558). Inter-institutional negotiations began on 10 July and according to the timetable agreed by heads of state and government on 19 October, they should ideally conclude “before the end of the year”.
In view of the forthcoming trialogue on 7 November, the Estonian Presidency of the Council questioned Coreper about what room for manoeuvre it had for negotiating. According to a document seen by EUROPE, the Presidency would like more flexibility, particularly with regard to the provisions on promoting European content (article 13), cooperation between the regulatory authorities (article 30-a) and the freedom of reception/retransmission of services, including the country of origin principle (article 3). According to one source close to the dossier, during the talks France and Portugal expressed their opposition to distancing themselves from the Council’s general approach on the circumvention procedure (article 4), while the United Kingdom and Denmark demonstrated flexibility.
Current state of negotiations
During the first three trialogues, the co-legislators reached a provisional agreement on jurisdiction by introducing a new definition for “editorial decisions” and access, through a reference to disability in general in an article and visual and auditory disabilities, in a clause.
With regard to the promotion of European content, the co-legislators considered that such obligations should be imposed by up to 30% (as opposed to 20% proposed by the Commission) for OTT services such as Netflix, unless this is “unrealistic or unjustified”. On the other hand, they have not yet decided on the question of financial participation: the Council has extended the financial levy to linear services, whereas the European Parliament follows the Commission proposal to limit it only to on-demand services.
On co-operation between regulatory authorities, Parliament agrees to keep the Council's paragraph 1 on information sharing, but asks for the deletion of paragraph 2 and limits the scope of paragraph 3 to cooperation in the case of “targeting” services. In practice, Parliament does not want a regulatory authority, informed by of the wishes of the latter to provide a service entirely or mainly for the public in another member state, to be obliged to communicate this information to the regulatory authority of the country of reception.
Finally, on the country of origin question (the freedom of reception/retransmission of services to article 3 and the procedure to follow in the event of article 4 being circumvented) the document poses the question to the delegations of the room to manoeuvre available to the Presidency, whilst ensuring that member states, “can take actions already after the first infringement of the media service provider in cases of a threat to public security, is maintained; there is clarity about the deadlines; the Commission has a sufficient time to take decisions (one month as proposed by Parliament is quite short) and that the ERGA should be consulted only if the Commission considers it necessary”.
The Estonian Presidency document is available at: http://bit.ly/2h6jW6Q (Original version in French by Sophie Petitjean)