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ANALYSIS OF THE COMPLIANCE OF TWO BULGARIAN DRAFT LAWS WITH DIRECTIVE 89/552/EEC AS AMENDED BY DIRECTIVE 97/36/EC (TELEVISION WITHOUT FRONTIERS)

General Comments
Specific Comments
Conclusions

The experts form DGX have examined the Draft Law on Telecommunications and the Draft Law on Radio and Television, further to the Sub-Committee No5 of 11 May 1998 in Sofia.

The drafts were examined on the basis Bulgaria's commitments according to Article 92 of the Europe Agreement and in the context of their conformity with the provisions of Council Directive 89/552/EEC as amended by Directive 97/36/EC of the European Parliament and of the Council of 30 June 1997 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities.

GENERAL COMMENTS

The provisions of the Television Without Frontiers Directive extend to all television broadcasters, regardless of the type of broadcaster (public or private) or the mode of transmission (terrestrial, cable and satellite).

In this sense, it should be concluded that the following elements are problematic: In particular, content obligations for commercial broadcasters are not sufficient to be considered aligned with the Directive. Furthermore, there are no guarantees in either draft law that license conditions would contain important content obligations as outlined in the Directive {inter alia articles 4 and 5 of the Directive).

Moreover, while the proposed Radio and Television Council has powers of monitoring compliance with the law, effective implementation of the legislation, as required by Article 3 of the Directive, would appear to be limited by the fact that the Radio and Television Council is subordinate to the State Telecommunications Committee as regards imposing fines and/or removing licences.

Finally, it would appear that the draft Law on Radio and Television (in Article 1(1)) is possibly contradictory to the one of the fundamental principles of the Directive -freedom of reception of television broadcasts.

SPECIFIC COMMENTS

1. Draft Law on Telecommunications

The draft text is primarily concerned with the licensing and licensing procedures of telecommunication activities, including radio and television broadcasting. However, the draft contains no articles or provisions relevant to the Television Without Frontiers (TVWF) Directive. Therefore, no comments on this proposed law can be made on the basis of the TVWF Directive. The relevant provisions could be examined eventually against the telecommunications policy or the competition policy acquis of the EU (which is not the purpose for the present note).

2. Draft Law on Radio and Television

The following areas of the draft television law have been identified as problematic in terms of compatibility with the TVWF Directive:

 

I) Freedom of reception/retransmission (Art. 2a Directive)

The issue of freedom of reception and retransmission is unclear. No explicit provision establishing this principle exists in the draft law, although no restrictions seem to exist.

• It is not clear, however, what the status of retransmitted broadcasts is. According to Art. 1(1) of the Additional Provisions of the draft law, retransmission of programmes is included in the definition of broadcasting, therefore being submitted to the provisions and restrictions of the draft law, as all other "television activities" (S. 1(1) and 1(2)).

 

This would result in a restriction to the principle of freedom of reception Art. 2a(1) of the Directive). Further clarification would be appreciated.

II) Jurisdiction (Art. 2 Directive)

• With regard to the issue of jurisdiction it should be noted that the main principle introduced in the Directive (Art.2(2)) is that of the country where the broadcaster is established. A set of criteria clarifying ambiguous situations is also included in the Directive (Art. 2(3)).

No provision of the Bulgarian draft law has implemented the above.

 

III) Promotion of European Works (Arts. 4 and 5 Directive)

• The provisions of the Directive regarding European works in the draft law apply only to Bulgarian National Television (S. 51) and not to commercial television broadcasters.

• The provisions of the Directive regarding independent producers and European works are not fully provided for in the draft law. Section 47(4) refers to independent producers without clarifying whether the works broadcast should be European or other. It also applies only to BNT: what obligations exist for commercial broadcasters?.

 

The above omissions are contrary to the Directive, which does not distinguish between diferent types of broadcasters and which requires the proportion of independent production to be of European origin.

IV) Advertising/Teleshopping (Arts. 13 and 18 Directive)

• With regard to television advertising, it should be pointed out that the Directive prohibits all forms of television advertising and teleshopping for cigarettes and other tobacco products (Art. 13).

• The draft law in S. 83(2) limits the ban only to "direct" advertising of such products. The meaning of this provision should be further clarified.

• Duration limits according to the draft law (S. 90) apply only to BNT. It should be clarified whether commercial broadcasters are also bound by the relevant provision and by what means.

• No provision seems to exist with regard to duration limits within a clock hour for advertising spots only (Art. 18(1) of the Directive).

• When referring to "teleshopping spots" in S. 92, does the draft law actually mean "teleshopping windows" as provided for in the Directive (Art. 18(a))?

If so, there is no provision regarding identification of teleshopping windows as such (Art. 18a(2) Directive).

If not, we conclude that the term of the draft law coincides with the term "teleshopping spots" as used in the Directive and, if this is the case, S. 92 does not comply with Art. 18a of the Directive.

 

Clarification would be appreciated for the terms "specialiseed teleshopping broadcast" S. 92.1 and "television market" (Additional Provision § 13)

V) Protection of minors (Art 22 Directive)

• A general and vague provision with regard to the protection of minors exists in the draft law (S. 37.7).

• A more detailed framework of protection, as laid down in Art. 22 of the Directive, would need to be included in the draft law.

CONCLUSIONS

It should be concluded that the following elements are problematic:

1. one provision of the draft Radio and Television Law (Art 1(1) of the draft) is possibly contradictory to the one of the fundamental principles of the Directive (freedom of reception of television broadcasts);

2. neither draft law provides sufficiently for commercial broadcasters. There are no guarantees in the drafts that commercial broadcasting licences would contain European/independent production obligations (as per Article 4 and 5 of the Directive);

3. similarly, commercial broadcasters would seem to be exempt from certain advertising obligations (Article 18 of the Directive);

4. it would seem, furthermore, that certain other advertising obligations (total ban on advertising for all tobacco products/teleshopping rules) have not been sufficiently incorporated into the draft Radio and Television Law;

5. the protection of minors is not sufficiently provided for.