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Legislative up-date - 62 Month - JUNE 1997

In this issue we cover:

  • MEPs vote for zero rate on press
  • Media ownership proposals delayed
  • New Copyright proposals due in September
  • Commission recommends self-regulation for Internet Content
  • UK Government to hold international anti-smoking summit
  • Amsterdam Summit - changes to the Treaty on culture, consumer and health protection.
 

 

TABLE OF CONTENTS

1. VAT

MEPs call for zero rating of the press

2. PRESS POLICY

2.1 Media Ownership

2.2 Impact of New Technologies on the Press

3. INTERNET (CONTENT) REGULATION

3.1 Commission report on Protection of Young People

3.2 MEPs views on protection of young people

4. INTERNET AND CONVERGENCE

4.1 Legal protection of encrypted and conditional access

services

4.2 Commission Green Paper on Convergence

4.3 EP Report on new information and communication

technologies

  1. Adoption of Telecoms Directive
  1. INFORMATION SOCIETY REPORTS
Adoption of reports in the European Parliament

6. COPYRIGHT

  1. East meets West to share experiences
6.2 Service providers criticise proposals from

Commission

6.3 Commission proposals delayed until Autumn

7. ADVERTISING POLICY

7.1 Tobacco advertising

7.2 Alcohol advertising

7.3 Commercial Communications Green Paper

7.4 European Court case on press sales promotions

7.5 Women in advertising

7.6 Comparative advertising

8. AUDIOVISUAL POLICY

8.1 Formal adoption of the Broadcasting Directive

8.2 European Court case on the Broadcasting Directive

8.3 New Treaty Protocol on public service broadcasting

9. GENERAL

Amsterdam Summit Treaty Amendments

  1. HARMONISATION OF VAT
EP CALLS FOR ZERO RATE OF VAT FOR THE PRESS

On 10 June, MEPs voted in favour of the EPC’s amendment calling for continuing to allow member states to zero-rate newspapers, magazines and books. In another amendment supporting the zero-rate the Parliament added that it "considers it necessary for the zero rate to be maintained, the reduced rate to be fixed at 5% and for there to be a binding definition of all transactions falling into this category".

The Commission is expected to come forward in the next few months with specific proposals on which products and services might benefit from reduced rates. So far the Commission has resisted calls for maintenance of zero rating.

Although MEPs gave overall approval for the proposed programme for a Common System of VAT, based on a system of country of origin, the report adopted by Parliament

    • "emphasises the difficulty of developing and gaining acceptance for a VAT system of this kind owing to the major differences in tax structure in the EU..." and adds that "one-sided, comprehensive harmonisation of VAT might unnecessarily and overly restrict the member states’ room for manoeuvre, especially at times of falling tax revenues"; and
    • "considers it politically difficult for the current band of standard tax rates to be widened or narrowed".
Although the EP has now been consulted by the Commission it will be national governments which will give a decisive view. The Council’s voting rules currently stipulate that decisions on taxation matters must be reached by unanimity. The next Council of Economic and Finance Ministers will take place during the forthcoming Luxembourg Presidency of the EU beginning on 1 July. 2.0 PRESS, NEWSPAPER AND MAGAZINE POLICY

2.1 MEDIA OWNERSHIP PROPOSALS DELAYED

 

The Commission is expected to come forward with new proposals for EU action on media concentration early in September. DG XV (Internal market) continues to work on a fully-fledged directive with thresholds for "share of voice", including a threshold for cross-media audience share, whilst other parts of the Commission are rumoured to be considering a non-legally binding recommendation. 2.2 EP - impact of new technologies on the press Greek MEP Katerina Daskalaki’s draft report on the impact of new technologies upon the press in Europe is due to be examined in the Culture Committee at their meeting on 21-23 July and then adopted at the meeting on 23-25 September, in time for the Plenary Session of 20-24 October. The Working Document is available upon request although Mrs Daskalaki is revising this early text. EPC has supplied information to the Rapporteur on a number of issues covered in the report. 3.0 INTERNET (CONTENT) REGULATION

3.1 Commission - protection of minors and human

dignity in new audiovisual services

 

The Commission’s working paper on the protection of minors, which will be presented to the Culture/Audiovisual Council on Monday 30 June as a follow up to their Green Paper on the Protection of Minors and Human Dignity in Audiovisual and Information Services is available on request. The paper describes the consultation process and analyses the results.

 

The most interesting conclusion is on page 4 which states that "There was broad agreement that, strictly speaking, there is no legal vacuum as regards the protection of minors and human dignity, not even in on-line and Internet services……..The principles of the protection of minors and human dignity are clearly enshrined in international law and defined in national law (ordinary and/or criminal law)".

 

The main problems lie in the application of existing laws and further clarification is recommended particularly with regard to liability. A ‘hierarchy’ of liability is set out starting with full and complete liability, limited and specific liability, down to the need to take action when informed of the need to do so and the need to keep consumers informed, etc. The report recognises the impossibility of monitoring all content and highlights the role of technical systems of rating and filtering, parental responsibility, etc. The report points out the vast differences in actions taken at national level and the different levels of "maturity" of the debate in the Member States. Better co-operation and pooling of resources are seen as ways of bridging the gaps in knowledge and experience.
 
 

The "provisional" conclusions call for
    • co-ordination of existing action and
    • the establishment of a "common policy framework".
    • a non-binding legal instrument which would be flexible enough to take account of national provisions and developments in new services.
    • self regulation rules should be defined
    • networking of national self-regulation and control bodies, providing a framework to increase co-operation by researching common methodologies and initiating a debate on the responsibility of operators.
 

The Commission points out that initiatives to

increase co-operation at EU level have been requested
    • for judicial and police co-operation,
    • for development of relations between children and the media (mainly through research projects),
    • international co-operation through bodies such as OECD
    • constant evaluation and monitoring.
3.2 EP - protection of minors MEPs will be voting in November on the Culture Committee’s report, prepared by UK MEP Phillip Whitehead’s on the protection of minors. The report says that the level of protection achieved in the broadcasting sector should be regarded as a yardstick for similar control of the on-line services and recommends an evaluation of filtering and screening devices and calls on the Commission to propose a framework for self-regulation. Copies are available on request. 4.0 INTERNET AND CONVERGENCE Legal protection of encrypted/conditional access services

As a follow-up to their Green Paper on the legal protection of encrypted services, the Commission intends to adopt a proposal in the next few weeks. It will ensure the legal protection of conditional access services against unauthorised reception (‘conditional access’ services include: pay-TV, video-on-demand, music-on-demand, electronic publishing and a wide range of on-line services). The Proposal will harmonise national laws on commercial ‘pirate’ activities and M-S will have to provide appropriate sanctions and remedies against the manufacture, marketing and sale of illicit devices, as well as the installation, maintenance or replacement of such devices. The original Green Paper covered only encrypted broadcast services but the new title reflects the extension of the scope to cover all encrypted services including electronic publishing. The Commission’s proposal will entitle providers of conditional access services to bring before national jurisdictions action for damages, and/or to apply for an injunction and/or for the seizure of illicit devices.

4.2 Commission - Green Paper on Convergence The Commission’s forthcoming Green Paper on convergence between the audiovisual, telecommunications and information sectors has been delayed until the autumn. DG XIII (telecommunications) intends to launch inter-service consultation with other DGs in mid-July. DG X and DG XV are expected to play particularly active roles. Early informal discussions with EPC show a preference for a light touch regulatory framework with a reliance on competition policy to control concentration. Recommendations as to how to deal with media ownership will be included in the Green Paper. 4.3 New information + communication technologies Elly Plooij Van Gorsel’s (ELDR, NL) report - which was drafted for the Committee on Research, Technical Development and Energy - has been adopted by the EP recommending:
    • that the Commission prepare measures to enhance the operation of the internal market post 1998, paying particular attention to the Internet;
    • initiatives to combat digital piracy.
A copy of the Parliament’s resolution is upon request.

4.4 Telecomms Directive

The Directive on Interconnection in Telecommunications has finally been formally adopted by the Council, following agreement in the Conciliation Committee on 19 March. The Directive aims to ensure a quality service under fair conditions of competition following the liberalisation of the telecommunications market on 1 January 1998. It sets common rules on the interconnection of fixed and mobile networks and the interoperability of services. The Directive must be transposed into national law before that date, except for some provision in countries which have been granted more time. The Directive will be reviewed in 1999 and the Commission has warned Member States that it will come down hard on any country failing to meet agreed deadlines for liberalisation. 5.0 INFORMATION SOCIETY REPORTS The EP Plenary Session adopted the following Reports at its June 26 Plenary Session:
    • the Commission Proposal for a Council Decision adopting a multiannual Community programme to stimulate the establishment of the information society in Europe Report (Rapp: Mark Hendrick (PES, UK);
    • the Commission Communications - "The Information Society: from Corfu to Dublin - the new priorities"; "The implications of the Information Society for European Union policies"; "Europe at the Forefront of the Global Information Society" (Rapp: Mrs Boogerd-Quaak (ELDR, NL);
    • the Commission Communication - "Standardisation and the global information society: the European approach" (Rapporteur: Mr Rubig (EPP, Austria).
All are available upon request. 6.0 COPYRIGHT

6.1 East to share EU experience

Intellectual property (IP) experts from Europe, the ASEAN countries (Vietnam, Thailand, Malaysia, Brunei, Singapore, Indonesia and the Philippines) and global institutions are meeting in Europe to share experience and promote improvements in IP protection through a five year Economic Co-operation programme broadening co-operation to sectors such as copyright and neighbouring rights. 6.2 Service providers criticise ncopyright legislation The Internet Services Providers Association (ISPA) has reacted strongly against a European legislative framework to make providers directly responsible for any copyright breaches across their networks. The Commission’s forthcoming Directive will aim to harmonise copyright laws for material distributed in digital form. The ISPA is supporting the lobbying efforts of the ad hoc Alliance for Digital Future, an alliance of telecom carriers and other companies who are lobbying the Commission on the question of liability and the new proposals for copyright protection in the digital age. The ISPA claim that unless the proposal is carefully worded, the service providers could be held responsible for infringing copyright acts of their users. 6.3 Commission - proposals delayed The Commission is currently drafting a proposal for a directive which will incorporate:
    • reproduction rights;
    • communication to the public rights;
    • legal protection of the integrity of technical identification and protection schemes; and:
    • distribution right.
Inter-service consultation within the Commission will begin in September, and the proposal is expected to be adopted in October.

EPC held discussions this month with Commission head of copyright about the new directive and provided detailed input on the impact of the harmonisation of the rights of reproduction and communication to the public on publishers. During the meeting EPC also raised the question of ownership of rights but it seems the EC is reluctant to act until pressure comes from Member State level.

7.0 ADVERTISING POLICY

7.1 Tobacco advertising

Measures to cut tobacco consumption were discussed at the 5 June Health Council. The Commission’s proposal to ban tobacco advertising was not formally discussed although the UK’s new Health Minister stated that the UK agrees in principle with the draft Directive but believes that there are still some unresolved legal questions about the scope of the draft Directive. The UK has committed itself to banning all tobacco advertising and tobacco sponsorship at a national level and has arranged an international summit on 14 July bringing together the world’s anti-smoking experts. It also seems likely that the UK will want to achieve agreement on the Commission’s Directive during its Presidency. (January-July 1998). 7.2 Alcohol advertising and sponsorship

 

The Commission has delayed until December its decision on whether to start infringement proceedings against France over the Loi Evin which bans tobacco and alcohol advertising and sponsorship. Having failed to act on an earlier case, this particular complaint against the French law is seen as a highly significant test of the Commission’s resolve to attack restrictions on commercial communications which hide behind health protection. Over 30 media, advertising and sports organisations have lobbied the Commission to take up this case against the French Government. The Commission has been criticised for the delay but the postponement could prove advantageous to those in favour of testing national restrictions on advertising against the Treaty’s principle of proportionality. This type of stringent proportionality assessment has been given prominence in Jessica Larive’s Report for the Parliament on the Green Paper on commercial communications. By December, the EP will have adopted its Opinion on the Green Paper, the Council will have considered it and the Commission will have come forth with a Communication outlining its recommendations for future policy. The delay not only gives extra time for lobbying against the Loi Evin but also means that infringement proceedings are likely to be considered in the context of the Commission’s proposals for a strong proportionality assessment mechanism.
 
 
Alcoholic drinks marketing - ALCOPOPS Alcohol advertising is rising on the EU agenda fuelled by anti advertising concerns from the Nordic countries, the recent controversy surrounding sale and marketing of alcopops in the UK and concern over pre-mixed drinks throughout the EU which anti-drink campaigners claim are particularly targeted at young people. The Commission is already considering what might be done on alcohol advertising at the European level. UK MEP Bill Miller has raised the issue of alcopops in the EP and proposed that the EU should adopt a Code of Conduct, along the lines of the Australian "numeric warning system". In response to Mr Miller, the Commission representative, Egon Guerner said he was interested by Miller’s suggestion but could not comment further at this stage. The EP Draftswoman on labelling of alcoholic products has however said she is not keen on the idea of a Code of Conduct saying that the marketing of alcohol could not be compared to tobacco. 7.3 EP - Commercial Communications Green Paper On 9 June MEP Jessica Larive’s report on the Green Paper on Commercial Communications was adopted by the EP Economic Committee. The report which is broadly in line with EPC views with the following amendments will go before the plenary for discussion and vote on 19 July:
    • called on the Commission to undertake a more detailed assessment of the effects of commercial communications on children;
    • called on the Commission to bring forward specific measures to protect children in relation to all types of commercial communication and stated that national legislation on the protection of children should not be weakened;
    • re-confirmed the importance of the single market;
    • re-confirmed Art. 10 of the European Convention on Human Rights;
    • re-confirmed the principle of country of origin;
    • underlined the need for timely decisions.
EPC has already briefed a number of key MEPs emphasising the need for country of origin control and self-regulation rather than restrictive legislation especially in areas such as tobacco and alcohol advertising.

Jean Bergevin, the official responsible for the GP on Commercial Communications in DG XV has confirmed that a new Communication would be drafted by the end of September or the beginning of October which would follow on from the EP’s opinion and consultation with industry. It will call for measures to strengthen the proportionality system and clamp down on disproportionate legislation such as France’s Loi Evin.

 

Commission action plan on consumer education to include Recommendations on commercial communications to children

 

This Action Plan, which is expected to be published in early 1998 is likely to include recommendations on commercial communications to children. We understand that DG XXIV (consumer policy) is currently analysing commercial communications to school children - particularly in relation to the sponsorship of school books, activities and equipment (including multi-media products) - so as to decide what action if any, is necessary. The recent call for tenders for a study into the impact of advertising and marketing in schools - with the aim of formulating a European code of conduct for commercial communications to school children - is part of this process.

7.4 European Court of Justice Case on sales promotions in the press On 26 June, the ECJ ruled on the case of "Familiapresse Zeitung", which concerns a women’s magazine - published in Germany but on sale in Austria - which contains a crossword with prizes. Austria bans prizes from lotteries and crosswords in magazines and newspapers so the case was referred to the European Court of Justice. The ECJ ruled that:-
    • Article 30 does not prevent a Member State from implementing legislation to ban the distribution of newspapers with legal crossword prizes and competitions, provided that the ban is proportional to maintaining pluralism of the press and provided that the objective of the ban can not be attained by a less restrictive measure;
    • A ban is acceptable if newspapers offering prizes for games, puzzles or competitions are competing with small press companies who are incapable of offering similar prizes and if the prospect of winning might displace demand;
    • However, national restrictions should not prove an obstacle to the marketing of newspapers which, although they contain games, puzzles and competitions, do not offer readers of the Member State the possibility of winning a prize;
    • Member State jurisdictions should decide if these conditions have been fulfilled, on the basis of an examination of the national press market.
7.5 EP - women in advertising On 18 June, the Women’s Rights Committee discussed Marlene Lenz’s (PPE, D) draft report on discrimination against women in advertising". When she introduced her draft, Marlene Lenz pointed out that ideas from 1995 Peking Women’s Conference should be taken up. Also, the question of the role advertising plays in the depiction of women and "consumers" of advertising must be addressed. Her report calls for the following:
    • member states: should transpose international pacts on non-discrimination into practice and statutory measures should prevent pornography in the media. There should be a ban on sexual discrimination and avoidance of stereotypes to be included in national rules;
    • advertising industry and advertising media: a commission should be set up on the ethical aspects of television and advertising to report to television councils and act as a neutral monitoring body and draw up a code of conduct. The industry should take responsibility for the respect of human dignity and should not disseminate negative images of women;
    • self-regulatory bodies in the advertising industry: a European self-regulatory body should be created which would draw up a code of conduct or guidelines. The body would supervise the industry and would be able to issue recommendations. The powers of the national supervisory bodies should be harmonised and should recommend monitoring of the New Media;
    • Commission: should establish an advisory Committee for all media to draw up a code for the advertising industry. A prize should be awarded to the best and worst advertisements. The Commission should revise the existing legal framework for advertising. Convergence of national rules is necessary. Co-operation should be encouraged between women’s organisations, professional associations and non-governmental organisations. The Commission should be supported to create a legal framework for the protection of human dignity against abuse of the new information and audiovisual services.
Mrs Lenz also said that she has serious doubts as to the impact of the Broadcasting Directive on the portrayal of women in advertising, which refers to discrimination in general, and called for the adoption of the Commission’s proposal of 1987 for guidelines for codes of conduct for the advertising industry. The role of the new media will be important in the depiction of women. The Committee is due to adopt the Report on 24/7/97

7.6 Conciliation - comparative advertising

On 25 June, the Council and the EP a joint text of a directive to permit the use of comparative advertising throughout the EU subject to certain conditions of substantiation. The text also calls for a feasibility study on establishing an effective means to deal with consumers’ complaints and an increased level of subsidiarity in the voluntary control of comparative advertising by self-regulatory bodies. 8. AUDIOVISUAL POLICY

8.1 EP/Council - Broadcasting Directive

The Council formally adopted the Broadcasting Directive on 19 June and Member States now have 18 months in which to implement changes to national legislation. On 10 June, the EP said it was satisfied with the Co-decision result and highlighted the strengthening of the protection of minors (within one year, the Commission is obliged to present an in-depth study of filtering "V-chip" systems) and guaranteed free access for citizens to sports events of major importance for society (the Directive obliges member states to submit a list of major sporting events which are of outstanding interest to the general public). The EP also said further study was necessary on the evolution of the media, despite the compromise on retransmission of major events on free-to-air channels, and on the definition of small independent producers and on the anti-violence V-Chip. 8.2 ECJ - Broadcasting Directive On 29 May, the European Court of Justice (ECJ) ruled that Belgium may not oppose the cable distribution of foreign television programmes, even if they fail to meet the quota provisions of the Broadcasting Directive. The Belgian Tribunal of First Instance had accused the cable distribution company Coditel of carrying broadcasts by the TNT Cartoon Network channel in 1993. This channel is owned by Turner International Sales in London, and falls under the jurisdiction of the UK authorities. It was accused of broadcasting a majority of programmes produced in the USA. The European judges ruled that "respect for the Directive’s provisions falls only on the member state from whence the programmes are broadcast", which in this case is the UK. Belgium was previously condemned by the European Court of Justice in September 1996 for obstructing the free reception of television programmes broadcast from other Member States.

Then, on 4 June, the ECJ ruled that according to the Broadcasting Directive the State which is competent to inspect a television broadcaster depends on the "place where the body’s centre of activity is located". The Belgian authorities had requested the ruling concerning the case of the opposition of Belgium’s Flemish Community to London-based television channel VT4. The channel had been refused access to the Belgian cable distribution system as it did not meet conditions imposed on channels broadcasting to the Flemish market. It was claimed that it established itself in another Member State to evade Flemish Community legislation. The ECJ ruled that although the VT4 programmes are intended for a Flemish audience and has a subsidiary in Flanders, the company is established under English law. The Court of Justice also pointed out that there is no proof that VT4 cannot be considered as established in the UK.

8.3 Council - public service broadcasting The EU agreed at the Amsterdam Summit of 16-17 June to add a Protocol to the Treaty aimed at safeguarding the position and funding of public service broadcasting. The wording of the Protocol is as follows:

"The High Contracting Parties:

    • considering that the system of public broadcasting in the Member States is directly related to the democratic, social and cultural needs of each society and to the need to preserve media pluralism;
    • have agreed upon the following interpretative provisions, which shall be annexed to the Treaty establishing the European Community:
    • the provisions of this Treaty shall be without prejudice to the competence of Member States to provide for the funding of public service broadcasting in so far as such funding is granted to broadcasting organisations for the fulfilment of the public service remit as conferred, defined and organised by each Member State, and that such funding does not affect trading conditions and competition in the Community to an extent which would be contrary to the common interest, while the realisation of the remit of that public service shall be taken into account".
9. GENERAL

9.1 Amsterdam Summit - Treaty amendments

After much lobbying by the European Parliament for a tougher culture article in the Treaty, only the following small amendment to Article 128 on Culture was agreed upon at the Amsterdam Summit:
    • "The Community shall take cultural aspects into account in its action under other provisions of this Treaty, in particular in order to respect and to promote the diversity of its cultures".
Contrary to MEPs’ wishes there was no extension of the system of Qualified Majority Voting (QMV) to culture. Initiatives and legislation in this field will therefore continue to need unanimous support in the Council.

The Consumer Protection article 129a was also amended moving the emphasis away from specific action to protect consumers towards making sure that Community policies generally take consumer interests into account. The new wording is as follows:

    • "In order to promote the interests of consumers and to ensure a high level of consumer protection, the Community shall contribute to protecting the health, safety and economic interests of consumers, as well as to promoting their right to information, education and to organise themselves to safeguard their interests;"
    • "Consumer protection requirements shall be taken into account in defining and implementing other community policies and activities
Article 129 on Public Health has been reinforced by defining that "a high level of human health protection shall be ensured in the definition and implementation of all Community policies and activities". It is specified that Community action shall complement national policies "towards improving public health...obviating sources of danger to human health". Co-operation between Member States are to be encouraged, as well as "incentive measures designed to protect and improve human health, excluding any harmonisation of the laws and regulation of the Member States". This new wording could be a boon to Commission officials wishing to promote anti advertising measures in certain "health" areas such as alcohol and food.

 

 

 
 
 

For further information please contact:

 

General Enquiries:Angela Mills

Telephone: +44 (0)1865 310 732

Facsimile: +44 (0)1865 310 739

E-mail: angelamills.epc@btinternet.com

Press Enquiries: Heidi Lambert

Telephone/facsimile +32 2 735 3603

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

MEMBERS OF THE EUROPEAN PUBLISHERS COUNCIL

 

 

Chairman: Sir Frank Rogers, The Daily

Telegraph, UK

Vice-Chairman: Professor Dr. Pierre Vinken, Reed

Elsevier, Netherlands

 

Members:
 
 
Mr Francisco Balsamao, Controljornal, Portugal

Mr David Bell, Pearson plc, UK

Mr Carl-Johan Bonnier, The Bonnier Group, Sweden

Mr Joep Brentjens, VNU, Netherlands

Mr Oscar Bronner, Der Standard, Austria

Dr Hubert Burda, Burda Verlag, Germany

Mr Herman Bruggink, Reed Elsevier

Dr Carlo Caracciolo, L’Espresso, Italy

Mr Juan Luis Cebrian, El Pais (Prisa Group) Spain

Mr Liam Healy, Independent Newspapers PLC, Ireland

Mr Les Hinton, News International, UK

Mr Christos Lambrakis, Lambrakis Publishing Group,

Greece

Mr Niels Meyer, Politiken Newspapers Ltd, Denmark

Mr Jaakko Rauramo, Sanoma Corporation, Finland

Dr Jurgen Richter, Axel Springer Verlag, Germany

Mr Alberto Ronchey, Rizzoli Corriere della Sera, Italy

Mr Gerald de Roquemaurel, Hachette Filipacchi Presse,

France

Mr Michael Ringier, Ringier, Switzerland

The Rt. Hon. The Viscount Rothermere, Daily Mail and

General Trust, UK

Mr Gerd Schulte-Hillen, Gruner + Jahr, Germany

Mr Nigel Stapleton, Reed Elsevier, UK

Mr Christian van Thillo, De Persgroep, Belgium

Mr Gaston Thorn, Compagnie Luxembourgeoise de

Telediffusion, Luxembourg

 

Associate Members:

 

De Telegraaf, Netherlands

Perscombinatie, Netherlands

Wegener Tijl, Netherlands

Westminster Press Ltd, UK