Scope

Ex-post REFIT evaluation of the Audiovisual Media Services Directive 2010/13/EU

Evaluation findings

The evaluation concluded that the objectives of the Audiovisual Media Services Directive (‘AVMSD’) are still relevant. It found as well that the regulatory framework was effective when it comes to facilitating the free movement of television broadcasting services within the EU. The country of origin principle has enabled the development and free circulation of audiovisual media services across the EU with legal certainty and resulted in lower compliance costs for providers and more choice for consumers.

On the other hand, due to the changes in viewing patterns, with audiovisual services being increasingly consumed on-demand and online, consumers, in particularly the younger ones, are less protected. Therefore, the directive had been only partially effective in ensuring a satisfactory and coherent level of consumer protection.

The directive had to some extent proven to be an efficient regulatory framework. However, the evaluation identified potential margin for simplification, specifically of the procedures that support the application of the ‘country of origin’ principle (i.e. the criteria determining jurisdiction over providers and the derogation and cooperation procedures limiting freedom of reception and retransmission in specific cases). Some other rules are no longer fit to attain these objectives, primarily due to market developments and changes in viewing patterns. In particular, the evaluation showed that there is room for improving and updating the rules on commercial communications.

The evaluation has identified two main sets of issues:

• Insufficient protection of minors and consumers when consuming videos on video-sharing platforms.

• Lack of a level playing field between traditional broadcasting and on-demand services, and internal market weaknesses stemming from the fact that some of the rules included in the current text of the Audiovisual Media Services Directive are not sufficiently precise.

Estimated savings and benefits

The frequent changes in legislation and the varying nature of pre-existing legislation at the national level made a quantification of costs exceedingly complex.

Industry has been unable to contribute quantitative data on compliance costs stemming from the Audiovisual Media Services Directive.

In the absence of data, the costs and benefits of the current Audiovisual Media Services Directive could not be quantified.

Which objective(s) does the Commission pursue?

The Digital Single Market Strategy for Europe (COM (2015) 192) called for a modernisation of the Audiovisual Media Services Directive (AVMSD) to reflect the market, consumption and technological changes.

To meet this commitment and based on the evaluation of the regulatory framework, the Commission put forward a proposal that would bring about changes in well-defined areas without undermining the objectives of the directive:

• Enhance consumer and minors’ protection, on video sharing platforms

• Ensure more effective and fair rules on the protection of minors in on-demand services

• Establish more effective and fair rules on promotion of European works

• Ensure regulatory impartiality across the EU.

• Simplify and clarify the procedures to apply the ‘country of origin’ principle

• Improve flexibility and clarity of rules on commercial communications

Estimated savings and benefits

Savings quantified are related to country of origin principle:

Regulators: expected savings resulting from the facilitation of the identification of the country of origin.

Rules on commercial communications no longer fit for purpose:

Regulators: savings can be up to EUR 5.3 million per year for the EU.

TV broadcasters: economic benefit resulting from the flexibility of the 12 minutes rule can go up to EUR 122 million for one TV broadcaster. Economic benefits related to product placement can go up to EUR 1.2 million per year for the EU and for sponsorship up to EUR 441 million for the EU per year.

Outcome of Legislative Procedure

The adopted text aligns with the Commission proposal in many respects. The differences compared to the original text concern, in particular, the extension of the scope to video-sharing platforms, the rules on promotion of European works and on commercial communications.

As regards the scope, the Commission proposal had foreseen the extension of certain rules to video sharing platforms, such as You Tube, while social media and livestreaming services were not included in the scope. During the negotiations, both co-legislators have expressed their support to the extension of the definition of video-sharing platforms to cover the audiovisual content present in social media services and live streaming services. As a result, audiovisual content on social media services such as Facebook would also fall within the scope of the Audiovisual Media Services Directive.

Furthermore, the Commission's proposal favored a ‘maximum harmonization approach’ for the rules on video-sharing platforms, while the co-legislators converged on the support for minimum harmonization for all the fields coordinated by the directive, including the rules for video-sharing platforms. This would entail that Member States remain free to adopt more detailed or stricter measures than the ones provided in the revised directive.

The original text proposed by the Commission envisaged promoting European works by guaranteeing a 20% share of European works in on-demand catalogues and the prominence of this content. The negotiators agreed to increase this percentage to 30%. The Commission proposal also allowed Member States to impose financial contributions on video on demand providers established in other Member States but targeting audiences in their territories. The adopted text extends this possibility to linear (broadcast) services.

Under the revised directive, certain audiovisual commercial communication rules will apply to video-sharing platforms – depending on the level of control that the video-sharing platform has over these AVCCs. This was not foreseen in the Commission proposal. While the final revised text does not change to a large extent the rules on sponsorship, product placement and advertising interruption, the advertising limit of 20% of broadcasting time will apply in two time periods (from 6:00 to 18:00 and from 18:00 to midnight – instead of one period between 7:00 and 23:00 as proposed).

Finally, in the Commission proposal, media literacy was not mentioned, while the adopted text includes a comprehensive definition of media literacy, introduces obligations for Member States and video-sharing platforms in this area and also obliges Member States to report on practices, policies and accompanying measures in the field.

To help the Member States with implementation, the Commission adopted on 2 July 2020  two sets of guidelines:

• on the method of calculation of the share of European works and the exemptions for low audience and low turnover and

• on the essential functionality criterion of the definition of video-sharing platform services (which is key to clarify which social media services fall within the scope of the new rules).

Estimated savings and benefits

No significant changes to the estimated costs and benefits in the legislative procedure.

Implementation reported by Member States

The transposition period set by the directive expired on 19 September 2019. The Commission opened infringement procedures against 23 Member States in November 2020 for failure to transpose AVMSD. In September and October 2021, the Commission sent reasoned opinions to 11 Member States for failure to notify complete transposition of the Directive.

At the time of writing, 26 Member States have notified complete transposition of the directive.

A contact committee was established under AVMSD (Article 29). One of its tasks is to facilitate effective implementation of the Directive.

Implementation by Commission

The Commission shall monitor Member State’s application of AVSMD (Article 33). By 19 December 2022 and every three years thereafter, the Commission shall report on the application of the directive.

By 19 December 2026, the Commission shall submit an ex post evaluation, accompanied where appropriate by proposals for its review, of the impact of this directive and its added value.

Estimated savings and benefits

As indicated above, sseveral Member States have not adopted the measures transposing AVMSD in their internal national systems. In the absence of date, it is therefore not possible to estimate savings and benefits derived from the implementation of the AVMSD at this stage.