The legislative proposal for a Directive on audiovisual media services presented by the Commission on May 25, 2016, is going through a very complex legislative process, characterized by hard oppositions, both in the European Parliament (“Parliament”) and in the Council. In an unprecedented move, this strong political division has allowed some “testing” of a new procedural rule in Parliament intended to protect political minorities and reinforce the legitimacy of the Parliament’s position when it negotiates with the Council.

The AVMS Directive reform has the aim of laying down rules reflecting new technological developments in the audiovisual market and to take into consideration new actors, such as video-sharing platforms and the different habits of the public that increasingly turns to the online world. Perhaps one would expect that this should not be the topic for such a battle. But it was.

The procedure had been following the normal route: debates in Council on the one side and debates, amendments and votes in Parliament on the other, leading to a report by the Culture and Education Committee (“CULT Committee”), which would have been the basis of negotiation with the Council. But differences among the Members of the European Parliament (“MEPs”) pushed the use of a new mechanism to try to prevent that a text voted on only by a Committee, could become the basis of a negotiation on behalf of the Parliament as such.

Those disagreements within the Parliament led to a group of 76 MEPs to trigger the new Rule 69C of the Parliament Rules of Procedure (“RoP”). This rule, recently introduced by a reform of the RoP, allows “Members or political group(s) reaching at least the medium threshold to request a committee decision to enter into negotiations be put to the vote.” This translates into the possibility to force the submission of a report, already adopted by the responsible parliamentary committee (CULT Committee, in this case), on the amendments of all 751 MEPs before letting it go through the interinstitutional negotiations among the Parliament, the Council and the Commission (the so-called “trilogues”).

Concretely, a number of MEPs from several political groups (ALDE, Liberal-Democrats; GUE/NGL, the Left, and the Eurosceptics of the ECR) reached the minimum threshold to request such a special plenary vote of the proposal that had already been approved by a majority of the CULT Committee. This vote took place on 18 May. Nevertheless, the Parliament backed the work of the CULT Committee, confirming the proposed text with a highly divided vote of 314 votes in favor, 266 against and 41 abstentions. The main division line was between those MEPs belonging to the same political groups that had supported the work of their colleagues in the CULT Committee: the European People’s Party and the Socialists and Democrats. Paving the way for the negotiations after this symbolic vote, the Maltese Presidency of the Council pushed to finalize the Council’s position for the negotiations to start in June.

Several matters remain open for discussion:

  • Daily limits to advertising. To avoid viewers being spammed with a concentration of evening advertising, MEPs proposed that MS delineate a prime-time window of a maximum of four hours during which a 20% limit will apply. The Council instead suggested dividing the day into two parts: from 6am to 6pm and from 6pm to midnight. During each of these periods, the proportion of advertising should not surpass 20%.
  • The terms of the obligation for video on demand services (“VOD”) to promote European content in their catalogues. The Council proposes to request an offer of 20% European content in the service providers’ catalogues. The Parliament supports a 30% quota.
  • The terms of the financing obligation of European content by VOD providers. There is agreement regarding the right of MS with jurisdiction to impose such obligations, but the Council has gone even further, proposing that MS should be enabled to request financial contribution from both the service providers established in their respective territory and also from those established outside their territory that target their audiences.
  • The scope of the reform. Should social media platforms that include the possibility of audiovisual sharing be included in the scope of the reviewed Directive? The answer from the Parliament is yes (and this was the main issue triggering the strong division between groups); it wants to apply to these platforms several obligations in the fields of advertising and hate speech.

An important group of MS fiercely opposes this approach; seven countries recently took a public stance defending the view that the new audiovisual rules should not regulate social media and platforms. The final Council position clarifies that “while the aim of the Directive is not to regulate social media services as such, social media services should be covered if the provision of programs and user-generated videos constitute an essential functionality of that service.” In order to ensure clarity, the Commission should issue guidelines “on the practical application of certain aspects of the definition of a ‘video-sharing platform service,’ in particular with respect to the criterion of essential functionality.”

Because of all these differences between the Council and the Parliament’s positions, the trilogues, which are expected to start at the beginning of June, promise to be anything but open in terms of outcome.