Euro states must consider rivals over PSB plans

Rose Major

European member states will be required to consider potential effects on competition when evaluating public service broadcasters’ provision of new audiovisual services, under new rules from Europe’s Competition Commission.

The new rules, which replace the Commission’s 2001 Broadcasting Communication, require that “Member States shall consider, by means of a prior evaluation procedure based on an open public consultation, whether significant new audiovisual services envisaged by public service broadcasters…serve the democratic, social and cultural needs of the society, while duly taking into account its potential effects on trading conditions and competition.”

A statement from the Commission said that the Communication is designed to ensure high quality public broadcasting services on a variety of platforms, ranging from the internet to screens in public places.

The Communication from the Commission on the application of state aid rules to public service broadcasting says: “In the interest of transparency and of obtaining all relevant information necessary to arrive at a balanced decision, interested stakeholders shall have the opportunity to give their views on the envisaged significant new service in the context of an open consultation. The outcome of the consultation, its assessment as well as the grounds for the decision shall be made publicly available.

“In order to ensure that the public funding of significant new audiovisual services does not distort trade and competition to an extent contrary to the common interest, Member States shall assess, based on the outcome of the open consultation, the overall impact of a new service on the market by comparing the situation in the presence and in the absence of the planned new service.”

Relevant aspects of the consultation should include the existence of similar offers, editorial competition, market structure, the public service broadcaster’s market position, the level of competition and potential impact on private initiatives. That impact “needs to be balanced with the value of the services in question for society,” the Communication continues.

“In the case of predominantly negative effects on the market, State funding for audiovisual services would appear proportionate only if it is justified by the added value in terms of serving the social, democratic and cultural needs of society, taking also into account the existing overall public service offer.”

Competition Commissioner Neelie Kroes said: "The new Communication strikes the right balance between the interests of public and private media to ensure healthy competition in the very rapidly evolving media environment, to the benefit of Europe's citizens. Public broadcasters will be able to take advantage of the development of digital technology and Internet-based services to offer high quality services on all platforms, without unduly distorting competition at the expense of other media operators."

Information Society and Media Commissioner Viviane Reding said: "The adoption of this Communication will give additional legal certainty to the media sector in Europe and ensure a fair competition between public broadcasting and private media. One of the Commission's main objectives is to preserve a vibrant media landscape in the online environment, notably by ensuring that online offers of public broadcasters do not distort competition to the detriment of offers from online services and print media. The Communication adopted today responds to this objective in a clear and efficient way."

The adoption of the Communication follows extensive public consultation but was not wholly welcomed by the public service broadcasting sector. While the European Broadcasting Union (EBU) welcomed the recognition that “public broadcasters can, and have to, provide their services on all new platforms in order to fulfil the expectations of their audiences”, the organisation stressed that public service media must be able to develop in the digital environment.

“There is a real risk that the unique, dynamic function of public service media will be endangered by unduly restrictive regulation - nationally and on the EU level," said Jean-Paul Philippot, president of the EBU.

Philippot added: “"We have stressed throughout the consultations that the regulation of public service media is predominantly a national matter, to reflect the diverse social, cultural and democratic features of the various Member States. It would have been preferable to leave the choice of the mechanism to Member States. In this respect the EBU regrets the introduction of a single mechanism for the assessment of new services.”

He concluded that: “We hope that the Commission will leave Member States enough flexibility when they introduce ex ante mechanisms in their country. The EBU also calls on Member States to adapt such a mechanism to their national specificities."