Representatives from the European Parliament, the Council of the EU and the European Union are gearing up for their fifth consecutive meeting on Tuesday 28 November to seal an agreement on the new rules governing audiovisual media services. There are, however, too many questions still pending to be able to close this dossier before the end of the year, despite the commitment displayed by heads of state and government to concluding one.
It should be recalled that the draft text presented in May 2016 seeks to create a fairer regulatory environment between traditional and over the top (OTT) services, as well as introduce greater flexibility to the rules governing advertising and supporting creativity in Europe through obligations to promote European content (see EUROPE 11558). Inter-institutional negotiations began on 10 July and have so far produced four meetings (see EUROPE 11896). In their conclusions on 19 October, heads of state and government said that this dossier should ideally be concluded “before the end of the year”.
In a document dated 17 November (seen by EUROPE), the Estonian Presidency asserts that it had reached an agreement of principle between institutions on the definitions, accessibility, regulatory cooperation and structure of the European Regulators Group for Audiovisual Media Services (ERGA) - articles 2, 7, 30 and 30a (ERGA). It is, nonetheless, requesting the opinion of the delegations on the exceptions to the country of origin principle (article 3), circumvention procedure (article 4) and self/co-regulation (article 4a).
Revised Presidency mandate
According to the information we have received, during a meeting of the Committee of Permanent Representatives to the EU (Coreper) on 22 November, the majority of member states approved implementation of a normal procedure and an emergency procedure allowing for derogations to the country of origin principle. According to the draft compromise submitted by the Estonian Presidency, the normal procedure will include strict deadlines: therefore, audiovisual service providers must have committed an alleged infringement at least twice and one year after an amicable solution has been sought during the 15 days following notification. The emergency procedure will allow the member state concerned to take measures less than a month after the alleged infringement and calls on the European Commission to assess the measures envisaged three months after their notification. The Presidency’s mandate also includes a “stop the clock mechanism” that enables the Commission to call for additional information from the member state from whence the claims originate.
The Estonian Presidency is also proposing to redefine co-regulation and self-regulation and points out that in cases of self-regulation, the penalties are established by the representatives from industry themselves. Nonetheless, the Presidency is proposing to introduce another formulation in article 7 on accessibility measures, in an effort to preserve the right of member states to legislate, irrespective of the existence of codes of conduct resulting from co-/self-regulation.
The Coreper meeting proved to be more controversial, however, with regard to article 4 on circumvention procedure. Poland said that it was unable to support this approach. The Estonian Presidency proposed to remove the reference to “credible and substantial proof” and to replace it with a provision stipulating that the member state of reception “shall substantiate the grounds” why it believes that the service provider is circumventing its rules. The Estonian proposal, however, maintains the Council’s general approach according to which the infringement should be reasonably established without the member state of reception having to prove “the intention” of the services provider to circumvent the legislation in question.
Not much chance of closure before end of year
According to several observers, there is little chance that the co-legislators will manage to respect the deadline set out by the European Council. One source close to the dossier asserted, for example, that the parties have not yet discussed commercial communications or the details of financial contributions. The Council would like to include linear services in this question, while the European Parliament and Commission are opposed because there has not been any impact study undertaken. (Original version in French by Sophie Petitjean)