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

3. Definition of “recent work”

In the table, the terminology used in the Act is applied to works by independent producers and the statistics indicate the proportion of works produced not more than five years before broadcasting.

4. Legislative background

The requirements concerning broadcasting of works made by European and independent producers are set out in Article 7 of the Act.

“Article 7

(1) Television broadcasters shall reserve at least half of their total yearly transmission time for broadcasting European works and at least one third of it for broadcasting productions originally made in Hungarian.

(2) Television broadcasters shall reserve at least 10% of their total yearly transmission time for European works and at least 7% for works originally made in Hungarian by independent producers or made not more than five years before their purchase.

(3) The proportions provided for in paragraphs (1) and (2) — having regard to the broadcasters’ informational, educational, cultural and entertainment responsibility to viewers — shall be achieved progressively, if necessary. Broadcasters which do not attain the proportions stipulated in paragraphs (1) or (2) shall provide evidence that this is legal in the light of this provision.

(4) Television broadcasters shall reserve at least 12% of their programme budget for acquisition of programmes made by independent producers or produced not more than five years prior to their purchase. Such programmes — with the exception of films — shall have been made originally in Hungarian.

(5) For the purpose of this provision:

(a) “broadcaster” shall mean a broadcaster who broadcasts nationally or regionally and a broadcaster who broadcasts nationally as a result of connection to the network;

(b) in establishing total broadcasting time, broadcasts of news or sports events, games, advertisements and teletext services shall be excluded …”

Under the authorisation provided for in Article 7(3) of the Act, the ORTT issued Decision No 505/2004 (IV. 15.), subsequently amended by Decision No 627/2004 (V. 5.), to clarify issues relating to progressive introduction of the programming requirements laid down in Article 7, to exceptions from compliance with the requirements and to specific procedural issues.

In its 7th Communication of 14 August 2006 on the application of Articles 4 and 5 of the Directive, the Commission criticised the general nature of the exemptions granted by the ORTT in Decision No 627/2004 (V. 5.) and the fact that the decisions granting exemptions have been taken without regard to the principle of progressive introduction, by simply acknowledging the channels’ failure to meet the quotas.

Therefore, there was a need for radical revision of ORTT Decision No 627/2004 (V. 5.) laying down the exemption decisions in line with the criteria adopted by the Commission. To this end, ORTT Decision No 627/2004 (V. 5.), subsequently amended by ORTT Decision No 2761/2006 (XII. 13.), set out detailed rules on how the programming requirements (quotas) introduced by the Act should be met:

“By virtue of the authorisation provided for in Article 41(j) of Act I of 1996 on Radio and Television Broadcasting (hereinafter referred to as “the Act”), the ORTT adopts the following Decision concerning the programming requirements laid down in Article 7 (the mandatory proportion of European works and the Hungarian language quotas), the progressive introduction of the programming requirements laid down in Article 7(3), exceptions from compliance with the requirements and specific procedural issues:

The programming requirement laid down in Article 7(1), (2) and (4) of the Act shall apply to all television programme broadcasting subject to Act I of 1996 on Radio and Television Broadcasting, except for the broadcasters exempted by this Decision.

Television broadcasters shall establish the quota requirement on the basis of their total annual broadcasting time, deducting the programme times of news, sports events, games, advertisements, television shopping and teletext services.

The following are exempted from this Act:

1. Article 7(1), (2) and (4) shall not apply to television broadcasts that consist exclusively of “news, sporting events, games, advertisements, television shopping or teletext services” and the time allocated to such broadcasts shall be deducted from the total broadcasting time for the year.

2. Article 7(1), (2) and (4) shall not apply to local television broadcasts provided for by Article 2(10) of the Act if they do not form part of a national network.

3. Article 7(1), (2) and (4) shall not apply to television broadcasters that exclusively broadcast programmes in languages other than those of the Member States⁴²; where such a language or languages constitute not all but a significant part of the channel’s transmission time, Article 7(1), (2) and (4) shall not apply to that part of the transmission time.

4. Television broadcasts that can be received only in a third country and cannot be received indirectly or directly in the territory of any Member State shall be exempted from the requirements of Article 7(1), (2) and (4).

5. Television broadcasts whose target coverage area falls exclusively outside the borders of Hungary and which cannot be received either indirectly or directly in Hungary shall be exempted from the Hungarian programme requirements in Article 7(1), (2) and (4).

Exemption on request:

The ORTT may partly exempt specialised and satellite broadcasters (with the exception of public service broadcasters) from the requirements, in advance and more than once, for a given period on the basis of an individual request justified by the broadcaster in a way that is compatible with the provisions laid down in the Directive, and to a degree gradually decreasing in each successive period, in accordance with the principle of progressive improvement.

The ORTT shall grant exemptions by individual decisions addressed to a given broadcaster for a maximum of one year. One month before the expiry of the exemption, the exempted broadcaster may submit another application for exemption for the next year, with a proper explanation of its reasons for doing so.

When granting exemptions, the ORTT shall take account of the extent to which any given broadcaster can, under the given market conditions, undertake to meet the quota, having regard to the broadcaster’s informational, educational, cultural and entertainment responsibility. However, in view of the provisions laid down in the Directive, the ORTT cannot accept reasons based exclusively on economic considerations in evaluating applications for exemption. In agreements it concludes with broadcasters, the ORTT shall include a clause providing that the broadcaster must meet at least the proportion attained in the preceding year, even if it has been granted exemption from the quotas or if it did not manage to meet them.

Broadcasters that have not submitted an application for exemption, or those that have submitted one if it was refused by the ORTT and yet they still fail to meet the prescribed quotas, shall conclude an agreement with the ORTT in which they undertake to achieve the proportion delivered in the preceding year — in accordance with the principle of a progressive approach — in the year following conclusion of that agreement.

Reporting:

Every television broadcaster — regardless of whether it is granted a licence or not — must report on its compliance with the obligation laid down in Article 7(1) and (2), as specified in Article 89(4)(e).

The reporting obligation shall apply to exempted broadcasters on the basis of and subject to the terms and conditions of the agreement concluded with the ORTT.

The deadline for submitting the reasoned applications for exemption for the next year shall be 31 August every year for broadcasters already operating. For newly launched broadcasters it shall be the 90th day following the day on which broadcasting started.

The application must give details of the proportion of European works, of those produced originally in Hungarian and of those produced by independent producers in the total transmission time in the preceding year, along with data that may justify exemption or may explain the failure to meet the proportions — below the quotas — specified in the agreement.

Pursuant to Article 7(3) of the Act, if the broadcaster failed to meet the proportions laid down in paragraphs (1) and (2) during the given calendar year, the broadcaster must prove that this practice was legitimate. Broadcasters should make efforts to improve on the proportions attained during the preceding year.

It shall be accepted by the ORTT as legitimate if the broadcaster fulfils its obligation specified in Article 7 only to a certain degree during the first three years of its operation, but even in such cases at least half of the quota must be met. The ORTT may grant one-off partial exemption from the quotas up to the end of the third year, in accordance with a plan containing precise data specified in the agreement.

The Műsorfigyelő és -elemző Igazgatóság (Directorate for Monitoring and Analysing Programmes) shall review television broadcasters’ programmes once a month for compliance with the proportions specified in Article 7(1) and (2). Fulfilment of the obligations shall be evaluated by the ORTT once a quarter/twice a year.⁴³

Pursuant to Article 7(4), the broadcaster must certify its compliance with the proportions in the framework of its annual report by presenting data certified by an auditor.

If the broadcaster fails to fulfil its obligations laid down in Article 7 or if it fails to fulfil its reporting obligation, the ORTT may apply the sanctions specified in Article 112; in particular, it may apply the sanctions referred to in Article 112(1)(a), (b) and (d) to broadcasters operating under a contract and it may apply those referred to in Article 112(1)(a), (b) and (e) to broadcasters covered by Article 113, while public service broadcasters may be liable to the sanctions specified in Article 112(1)(a), (b) and (e).⁴⁴”

MALTA

Number of channels		Reference period			Monitoring method
Total identified: 5 Covered (IND 1): 5		2005/2006			Self-assessment by broadcasters (on the basis of a yearly questionnaire)