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Commission consultation on "An Internal Market Strategy for Services" Contribution from the European Publishers' Council 1st June, 2001

The European PublishersÕ Council (EPC) is a high level group of Chairmen and CEOs of leading European media corporations actively involved in multimedia markets spanning newspaper, magazine, Internet and on-line database publishing; many EPC members also have significant interests in private television and radio. A list of our members is attached.

A. General Comments
The European Publishers' Council has openly welcomed the announcement of the Commission Communication on an "Internal Market Strategy for Services" in January 2001. The opportunity to expand cross-border trade in services is essential for Europe's growth and competitiveness. We believe the strategy should build on the strengths of the e-commerce Directive which allows publishers to provide content online throughout the EU according to the laws of the country of first publication. The principles of mutual recognition and country of origin should be upheld across the board in the services sector in particular to promote rapid growth and take-up of online services.

B. Barriers to Publishers

Media companies are still constrained by national laws on advertising and sales promotion which have not successfully been removed. These are now being carried over into the online world causing further barriers to development. We believe that the Commission should always try to attack national barriers to services first, rather than encourage general harmonisation as this often leaves national restrictions in place, whilst at the same time creating another level of legislation for business to deal with. The EPC would like to see the Commission step up action on barriers to advertising and make their removal a priority as part of this new strategy. The Loi Evin in France, which imposes a near-total ban on alcohol advertising, is one example where the use of infringement proceedings has so far failed. At the same time, the Swedish attempt to extend their national ban on advertising to children shows that in effect, there are efforts from Member States to push for increased barriers to trade through harmonisation, rather than to seek their removal.

The EPC welcomes the decision of the European Court on 8th March 2001 against the Swedish Advertising ban on Alcohol Advertising. The Court decided against the Swedish government by ruling that public health objectives could be achieved with less restrictive measures and called on a Swedish court to decide if the ban was proportionate to the original goal. This ruling could be used effectively to tackle other barriers to cross-border advertising such as the aforementioned Loi Evin and various national bans on advertising to children, gambling and certain forms of sales promotion. Barriers to advertising amount to national protectionism and prevent the potential expansion of this profitable service sector in the future.

Publishers not only face barriers in the form of existing national regulation but also in the shape of proposed regulation from the Commission.

- The as yet un-adopted draft regulation known as "Rome II" on applicable law would, we belive, act regressively. It has the potential to work against the new Services Strategy by further entrenching non-contractual national measures on advertising and sales promotion which will lead to increased risk of exposure to legal action for publishers and lessen the scope for liberalisation of the advertising market.

- The Rome II approach also threatens the development of online publishing more generally and could undermine the internal market approach to content provision which is enshrined in both the TV without Frontiers and E-Commerce directives. This would be inconsistent with the new Services Strategy which has already been adopted by the Commission.

- The draft directive on market abuse (published 30 May 2023) contains ambiguous wording which might lead national Governments to draw up new restrictive rules on the media in the area of financial reporting. Instead, the EPC would like to see unambiguous wording such as that contained in the Data Protection Directive so that Member States are required make exemptions from the provision of this directive Òfor journalistic purposesÓ.

- The latest draft directive on tobacco advertising once again imposes statutory bans on advertising in the press and on the internet on the grounds that this is necessary for the completion of the internal market. This is patently not true but rather an attempt to achieve public health objectives by abusing the internal market process. This not only sets an unacceptable precedent in the field of media and advertising but is likely to be the subject of yet another challenge in before the Court of Justice.

Another area where barriers are emerging for media companies is the increasing tendency of events organisers (e.g. sporting and musical events) to prevent open access to journalists, photographers and cameramen for the purposes of news reporting. The EPC believes this should be investigated further and would be pleased to provide further information on request.

C. New Forms of Regulation - The White Paper on Governance
The important debate on how to simplify the regulatory environment launched by Romano Prodi as part of his White Paper on Governance will, we believe, have an impact on the new Services Strategy. The EPC believes that the systematic approach laid down in the Services consultation paper offers great potential for the removal of existing barriers to advertising. The possibility of moving from top down regulation to new regulatory models such as co-regulation could significantly affect the publishing industry if this leads to new sets of rules and regulations in areas that might otherwise have benefited from de-regulation under the new Services Strategy. We can already see that DG Sanco's new approach to the Duty to Trade Fairly proposal envisages greater use of co-regulation in areas of advertising and sales promotion specifically. This we feel pre-empts the governance debate of how we can develop these new regulatory models in a consistent way with initiatives such as this. Furthermore, the EPC is concerned that proper consideration will not be given to existing forms of self-regulation or potential for de-regulation if the Commission gives priority to co-regulation over and above the new Services StrategyÕs approach. A coherent and co-ordinated approach from the Commission is needed urgently.

D. Summary

- The EPC welcomes the systematic analysis of barriers to services in the Internal Market through this new Services Strategy.

- Publishing can benefit hugely from a new strategy that removes barriers to services such as advertising.

- The existing use of infringement proceedings must remain in place however as tools to remove barriers to services;

- We would urge the Commission not to abandon infringement proceedings in favour of general harmonisation which can lead to additional burdens for business.

- The Commission must ensure that any Services Strategy is not compromised by initiatives being undertaken in other parts of the Commission; specifically we would recommend full co-ordination with the White Paper on Governance, the Rome II proposals, the Duty to Trade Fairly draft directive and any other proposal which would affect the media.

- EPC will continue to cooperate with the Commission as part of their 2002 actions on Services, in drawing up a list of obstacles to services, launching of non-legislative measures and in any new harmonisation proposals.

1 June 2023