20/12/2002

For the legal workshop the chairman was Karol Jakubowicz, president of the Permanent Committee of the European Council for the “TV without borders” Convention, and head of TVP strategic programming. Key-Note Speaker: Susanne Nikoltchev, Legal Expert European Audiovisual Observatory and Krzysztof Wojciechowski, Adviser to the Board of Management, Polish TV.
They asked themselves whether the enlargement must be grounds for enthusiasm or a reason for worry, above all means answering three questions:
1. How does the awareness of the ‘acquis communautaire’ (the whole package of audiovisual regulations, incentive measures, directives achieved within the E.U. during the last 20 years) present itself today in the legislation of candidate countries?
2. What are the problems that exist, particularly to reconcile the obligations of joining the European Union with the obligations set by adherence to OCDE or WTO – World Trade Organisation?
3. How will these new partners be linked to the revision of the “TV without frontiers” directive and, more generally, to the process of new directives addressed to regulate the technical evolutions in progress?
An observation can be made on the first question. All the candidate countries have already introduced most of the European rules in their legislations to the point where almost all of them are already or are about to be associated with MEDIA programme.
To give an estimate of the progress made, the Krzysztof Wojciechowski (TVP) noted that all of these countries come from far away and before joining the European audio-visual project had not only the pursuit of a democracy conditions as a primary objective but also to revive the same need for democracy within their citizens. It is in this sense that the new meaning has to be given to words such as ‘pluralism’ and the relationship between audiovisual media and political power.
In most countries of Central and Western Europe, the awareness of the ‘acquis communautaire’ did not begin with the project to join the E.U. It is the goal of the process that began on a national level with the preparation of the first regulatory texts regarding media, in particular with efforts aimed at building a democratic and pluralist television and at affirming the principle of free circulation of the programmes.
This process started in the framework of the Council of Europe and through exchange and co-production programmes developed within the EBU (European Broadcasting Union).
Today the European principles on the subject of media diversity, pluralism and independence have been totally included in national laws.
The same can be said, with some nuances, for the adoption of the E.U. directive “TV without frontiers” that regulate advertising, tele-shopping, or in another context, the protection of minors or the transmission in clear of highly important national events.
On the other hand, there are two points where the alignment with European Union practices has seemed more complicate: regulation of author protection and compensation, and especially the questions regarding the space to be reserved for national and European programmes in the production programming schedule policies of the TV broadcasters of the candidate countries.
The legislation of most of the candidate countries have actually been faced with two problems:
a) the reserve in replacing the national quotas with European quotas, amplified in numerous countries by the weakness of their internal markets;
b) the pressure of the United States, exercised through organisations such as OCDE and WTO, in order not to limit the freedom to invest and trade in the audio-visual sector.

Many candidate countries originally adopted a legislation that opened their audio-visual market to the free commercial access of investments and foreign programmes, contrary to the principles posted by the European Union. Naturally this caused serious problems when starting the process to join the E.U. Most of the countries could review their legislation with the help of the European Commission but the difficulties – especially for some countries – still exist. It is the case of Hungary, for example, that having been one of the first countries to move towards economic liberalization already undertook a certain number of commercial obligations such as (in its first regulation of the communications sector) the rule that the transmission of foreign television channels originating from its territory were not included in the field of authority of the national audio-visual regulations but in those of telecommunications.
But the subject much more sensitive to the actual state of negotiations for E.U. membership is still that of the definition of what should be intended for national production.
Two logics contrast.
The first is that of an industrial imprint that favours a wider definition: all the production made in the country in question or with the country’s means.
The other, however, has a more cultural imprint (and much more restrictive), similar to the one adopted by the European Commission that adopts a linguistic definition of national production: only the production made in the language of the country in question is national.
Effectively, the Commission considers that the development of the national industries of programmes is intimately tied to the national support policies, but that these policies must be compatible with the construction of the European audiovisual space.

The last question refers to the review of the “TV without borders” directive and the candidate countries.
The workshop participants, after having proceeded in reading the text of the Directive article by article and after an extremely open exchange of views on the amendments to be applied to the current text, were unanimous in recognising the need to associate candidate countries to their processing and revision if it is requested the new member countries apply the new texts. The more they are associated with the current revision work, the more the legitimacy of the European legislation strengthens.
In conclusion, the group came back to the original question if the enlargement of European audio-visual must be considered as an enthusiastic or worrisome prospective. According to the jurists the question cannot be truly asked in these terms. The eventuality of leaving the audio-visual markets of Central and Eastern Europe at the edge of the European market is not a profitable service. But, above all, it is not profitable to the European Union current member countries since, with the development of satellites "Television without borders " of which the community directive of the same name speaks, has already become a reality that cannot be ignored.