Brussels takes Spain to the Court of Justice of the EU for not transposing an audiovisual law. In addition to Spain, the European Commission has decided this Thursday to bring the Czech Republic, Ireland, Romania, and Slovakia before the CJEU, for not having transposed the audiovisual communication services directivereviewed, and has requested that financial sanctions be imposed on them.
The Audiovisual Media Services Directive regulates the coordination at EU level of national legislation on all audiovisual media. The last revision of this Directive was carried out in 2018. The revised audiovisual media services directive establishes rules applicable to media content at EU level for all audiovisual media, both for traditional television broadcasts or services to the letter, or video sharing through platform.
“These new EU rules aim to create a safer, fairer and more diverse audiovisual landscape. They strengthen the protection of viewers, paying special attention to the safety of the most vulnerable, such as minors, expand the rules regarding illegal and harmful content to include video-sharing platforms, and promote cultural diversity in audiovisual media . In addition, the directive introduced additional independence requirements for national media regulators”, explains Brussels.
According to the Community Executive, the Member States had to transpose the directive and communicate the national transposition measures to the Commission no later than September 19, 2020. Given the lack of adoption of the relevant national regulations, the Commission sent letters of summons to 23 Member States in November 2020, followed by nine reasoned opinions in September and two in November 2021. To date, the Member States mentioned above have not fully transposed and communicated the implementing measures of the Audiovisual Media Services Directive. For this reason, the Commission has today decided to refer these cases to the Court of Justice of the European Union.
“Due to the delay in transposition, citizens and companies in the Czech Republic, Ireland, Romania, Slovakia and Spain may not be able to rely on all the provisions of the audiovisual media services directive,” says Brussels, which lists the scope of action of the norm: “It creates equitable conditions of competition for the different types of audiovisual media services; guarantees the independence of national media regulators; preserves cultural diversity, for example by requiring video-on-demand services to have at least 30% European works available in their catalogues; protects minors and consumers in general, establishing rules for the protection of minors against harmful content online, including protection in video-on-demand services and reinforcing their protection in relation to audiovisual commercial communications; and combats racial, religious and other hatred by reinforcing norms to prevent incitement to violence or hatred, as well as public provocation to commit terrorist crimes.”
“The Audiovisual Media Services Directive aims to guarantee a single fair market for broadcasting services that adapts to technological advances”, says the Community Executive: “The Commission proposed a revision of the Audiovisual Media Services Directive in 2016, which was adopted in 2018, which included a new approach for online platforms that broadcast audiovisual content”.
Catalan and Netflix
The community directive pending transposition establishes quotas for audiovisual platforms, which countries can claim from companies “subject to their jurisdiction.” “Subject to its jurisdiction” are the four words present in article 13 of the European directive on audiovisual media that complicate the possibility of setting a percentage of the catalog of any audiovisual platform whose headquarters are located in another country of the European Union.
In other words, “subject to their jurisdiction” is the lock that the Government and ERC have to deal with in the face of the open conflict due to the presence of Catalan – and other co-official languages – in the catalogs of platforms such as Netflix or HBO. Something else is Movistar+ and Filmin, for example, which are subject to jurisdiction Spanish.
But what exactly does the directive say in its article 13?
“Member States shall ensure that on-demand audiovisual media service providers subject to their jurisdiction have a percentage of at least 30% of European works in their catalogs and guarantee the prominence of such works.” In other words, the 30% quota for European works –regardless of nationality– applies to platform services streaming that are under the jurisdiction of a specific Member State, point out community sources, which is the one that has to ensure that this requirement is met within the single European market.
Indeed, the Audiovisual Media Services Directive (AVMSD) is a European directive and applies to the EU single market. Therefore, when talking about the 30% quota of European works applied to on-demand audiovisual media service providers in the EU, it is up to the Member State where the companies are established to guarantee it.