Key directives: Television without Frontiers06 July 2009
by inadim -- last modified 09 July 2009
The Television without Frontiers Directive (TVWF) aims to create the conditions necessary for the free movement of television broadcasts within the European Union (including most forms of transmission to the public of television programmes). It achieves this by preventing EU Member States from restricting reception and redistribution of broadcasts from other EU countries.
The Television without Frontiers Directive as a secondary law has to apply these fundamental principles. Article 2a of the TVWF-Directive guarantees the freedom of reception and no restriction of retransmission. With respect to the question “who has to control a specific service” the country of origin applies: Services are supervised at the source of the activity, in order to ensure legal certainty for service providers and an effective protection of public interest objectives. To that end, it is necessary to guarantee that the competent authority provides such protection not only for the citizens of its own country but for all Community citizens. In order to improve mutual trust between EU Member States, it is essential to state clearly this responsibility on the part of the Member State where the services originate. In conclusion, in order to effectively guarantee freedom to provide services and legal certainty for suppliers and recipients of services, such services are regulated only in one Member State and are subject to the law of the Member State in which the service provider is established.
Even if Member States are free to take stricter measures for the broadcasters under their jurisdiction (Article 3), Member States are not allowed to apply their national regulation to television broadcasts regulated in another Member State. The European Commission belivies that this is a necessary condition for the creation of a free market. To abolish this principle would make the whole directive obsolete and would end the common market for television services.
A series of practical criteria are designed to determine by an exhaustive procedure which Member State has the jurisdiction, such as location of the head office of the provider of services, the place where decisions on programming policy are usually taken, the place where the programme to be broadcast to the public is finally mixed and processed and the place where a significant proportion of the workforce required for the pursuit of the television broadcasting activity is located (Article 2 of the TVWF Directive).
Third country broadcasts that are not established in one of the Member States have also to comply with the rules if they come under the jurisdiction of a Member State by virtue of Article 2 paragraph 4, that is, if:
- they use a frequency granted by that Member State,
- they use a satellite capacity appertaining to that Member State or
- they use a satellite up-link situated in that Member State.
Restriction of the freedom of movement
Under the Television without Frontiers Directive, notwithstanding the application of the country of origin principle, Member States may still take measures that restrict the freedom of movement of television broadcasting, but only under certain conditions listed in Article 2a of this Directive and following the procedure laid down in this Directive. However, the European Court of Justice has consistently held that any restriction of the freedom to provide services, such as any derogation from a fundamental principle of the Treaty, must be interpreted restrictively. (Case C-355/98 Commission v Belgium  ECR I-1221, paragraph 28; Case C-348/96 Calfa  ECR I-0011, paragraph 23).
Source: European Commission