Infso-2008-00093-00-02-en-rev-01

Reasons for non-compliance

In general, the reasons given for non-compliance with the proportions required under Articles 4 and 5 of the Directive are the same as those expressed during the previous reference period. They are summarised below in order of occurrence:

• 
  Programme orientation and special-interest nature of the channel
  

A significant number of reports explain the non-compliance of certain channels with the required proportions by the fact that they mainly broadcast music, films, children’s programmes or other special-interest material (niche channels). This reason may be accepted only if specific substantiated arguments are given. Generally, the reports remained rather laconic in this respect. Therefore, it should be pointed out that such channels are not entitled to a general ex-ante exemption from their obligation to broadcast the required proportions of European and independent works, which applies each year for each channel covered by Articles 4 and 5.¹⁰.

• 
  Higher costs of European programmes
  

Given the objective of Articles 4 and 5 to foster the European audiovisual media industry, this reason cannot be taken into account.

• 
  Subsidiaries of non-EU companies
  

The reasoning behind this argument is that such channels are very likely to use their own catalogue material, which results in lower proportions of European works. In this respect, it should be pointed out that the ownership of a given channel does not constitute an objective criterion exempting it from its obligations under the Directive.

• 
  Groups of channels belonging to the same broadcaster achieve the required proportions when taken together, but not individually;
  

Some of the Member State reports point out that groups of channels belonging to the same broadcaster comply with the proportions when their figures were taken together, even though some individual channels fail to meet the requirements. This argument implies that monitoring should apply to the broadcaster rather than each individual channel. Such an approach may have an impact on competition between the various market participants. In some cases, it may lead to the results of ‘small’ (in terms of audience share) channels or special-interest channels being artificially aggregated with those of ‘major’ general interest channels. It may also encourage scheduling European works on one or more specific (and less watched) channels. In this respect, it should be observed that, whereas Article 4(1) speaks of ‘broadcasters’ having to reserve proportions of their transmission time, Article 4(3) refers to ‘television programmes’ as regards monitoring the achievement of the required proportions. Consequently, broadcasters have to ensure that the proportions are achieved by each channel broadcast.

• 
  Progress achieved
  

According to Article 4(3), the Commission may ‘take account in its opinion, in particular, of progress achieved in relation to previous years’ as regards compliance with Articles 4 and 5. In line with the principle of progressive improvement, some Member States have introduced in their legislation ‘non-slip-back’ clauses for channels that fail to meet the proportions, in addition to the existing rules.

• 
  The recent nature of the channel
  

Given the ever-growing number of newly emerging channels in the market, the recent nature of the channels is often put forward by the Member States as a reason for non-compliance. In accordance with Article 4(3), the Commission may take account in its opinion of the particular circumstances of new television broadcasters. It should be noted, however, that many of the new entrants in the market quickly achieve the proportions required under Articles 4 and 5 in their first years of operation.

• 
  Specific market conditions during the reference period
  

Some Member States indicate in their reports that events of major importance, such as the Olympic Winter Games and the Football World Cup, predominated in 2006. As these events do not count towards the qualifying time for achieving the proportions required under the Directive, their transmission on major channels narrowed the margin within which European works and independent productions could be placed. In this respect, it should be pointed out that the importance of news, sports, events, games, advertising, teletext services or teleshopping in a channel’s schedule does not have any effect on the relative compliance with the thresholds set for qualifying transmission time, even if in absolute terms the opportunities for scheduling European works may be reduced.

• 
  Low audiovisual production capacity or restricted language area
  

Some Member States hinted at difficulties encountered by broadcasters under their jurisdiction which are due to their limited market size or linguistic situation. According to Article 4(3), the Commission may take account in its opinion of the specific situation of countries with a low audiovisual production capacity or restricted language area of a Member State.

• 
  Changes in methodology (abandoning the 3% audience threshold)
  

One Member State referred to the impact of the change in methodology since the last report. While previously channels with less than a 3% audience share were excluded from consideration under Article 4, the methodology was changed in the last report to present the average proportions of European works on all channels covered by Article 4. As a result, the Member State concerned considered that the report failed to record properly the major contribution made to European production by broadcasters under its jurisdiction. In this respect, it should be recalled that the previous methodology was adopted because at the time channels with audience shares below 3% were considered to be of marginal importance. With the considerable increase in the number of channels, this consideration is no longer justified. Nevertheless, for ease of comparison, Background Document 7 lists the channels with audience shares above 3% and their respective proportions of transmission time reserved for European works.

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