IRIS 2008-2:6/5

European Commission

Consultation Paper on the Future Framework for State Funding of Public Service Broadcasting

Stefan Kulk

Institute for Information Law (IViR), University of Amsterdam

In 2001, the Commission adopted the Broadcast Communication on the application of State aid rules to public service broadcasting (see IRIS 2001-10:4). The Broadcast Communication provides guidance on assessing whether financing of public service broadcasters is in accordance with Article 86 (2) EC Treaty and the Protocol on the system of public broadcasting in the Member States (Amsterdam Protocol). The European Commission has now published a consultation paper on the future framework, which will apply to State funding of public service broadcasting. The consultation is an opportunity for Member States and stakeholders to submit their views at an early stage, before any Commission proposal, on the possible revision of the Broadcasting Communication.

The launch of this consultation marks the beginning of the review of the Broadcast Communication announced in the State Aid Action Plan. The review of the Broadcast Communication will be built on fundamental principles like the recognition of Member States' wide discretion to define public service broadcasting, the requirement for Member States to lay down the public service obligations in a clear and precise manner and the Commission's task to preserve fair competition by examining possible disproportionate effects on competition through overcompensation and cross-subsidisation into commercial activities as well as anti-competitive behaviour. Key issues for discussion are the public service remit in the new media environment and control of overcompensation.

The Broadcasting Communication has proved to be an appropriate tool for examining the financial regimes in a significant number of Member States. Since the adoption of the Broadcasting Communication in 2001, the Commission has taken almost 20 decisions on the application of state aid rules to public service broadcasting (for most recent decisions, see IRIS 2007-4:4 and IRIS 2006-8:7). The Commission considers that it would increase transparency and legal certainty if the Broadcasting Communication were updated taking into account these individual decisions and additional clarifications provided in the Commission’s decision-making practice since 2001. Also, market developments due to digitisation and media convergence, which are especially challenging to the audiovisual media sector, call for a careful analysis and a possible further development of the existing rules. There have also been changes in the legal environment that make evaluation of the Broadcasting Communication necessary.

The consultation consists in a questionnaire and an explanatory memorandum that gives an overview of the current rules and the relevant Commission decision-making practice. It also outlines the possible scope for amendments to the Broadcasting Communication. Comments on the consultation paper should be submitted by 10 March 2008. The Commission will then evaluate whether and to what extent changes to the rules are necessary. If appropriate, the Commission will come forward with a new proposal for a revised Broadcasting Communication in the second half of 2008. Member States and stakeholders will again have the opportunity to express their views on this revised proposal before the Commission decides on any final version of the rules in the first half of 2009.