This annex describes existing the regulatory environments in the European Union for telecommunications and media sectors. The absence of regulation in the IT field is also noted.
A clear framework for effective competition throughout the European Community has now been put in place and is at an advanced stage of implementation in national law as the 1998 deadline approaches. In reality the transition from monopoly to effective competition has required a profound reform of regulation in the telecommunications sector, with rules agreed to set the dates for liberalisation of the sector and to provide a common regulatory framework covering, inter alia:
A fundamental consideration has been the need to limit regulation to the minimum required to secure the overall public interest and to enable effective entry and sustainable competition.
The focus of the regulatory framework for telecommunications has been on networks and service provision (including aspects linked to safeguarding the public interest) and not on the regulation of content carried over those networks. Three aspects of this focus on an internal market for telecommunications can be highlighted:
The WTO/GATS agreement on basic telecommunications reached on 15 February 1997 is fully in line with the EC regulatory framework for the sector. This applies not only to the dates set for liberalisation, but also with regard to the underlying regulatory principles. The deal does not cover broadcasting and it only applied to telecommunications (transport) services. Thus it does not cover any "content services[67]" which may be transmitted through telecommunications services. .
At a Community level, current audiovisual regulation aims to achieve the free circulation of services in accordance with Article 59 of the Treaty. It is an example of the application of subsidiarity whereby Community legislation has been adopted solely when absolutely necessary to achieve the aforementioned Treaty objective. National rules have been co-ordinated to the degree necessary to remove barriers resulting from disparities between these regulations, when such rules are justified for legitimate public interest reasons.
Historically, the Court of Justice has recognised that in the absence of harmonisation at a Community level, Member States could impose their national rules on service providers from other Member States, where those rules pursued a general interest objective and were proportional to achieving that objective.[68] This case law led to the adoption of the main Community instrument in this area, the so-called Television Without Frontiers Directive (TVWF) which co-ordinates national regulations in a number of fields relating to the provision of broadcast services (jurisdiction criteria, advertising, sponsorship, tele-shopping, protection of minors, public order, right of reply, promotion of European programmes).
This Directive is based on the principle of "home country" control, i.e. control by the authorities in the country of origin under whose jurisdiction the broadcaster falls. It has proved its effectiveness in the current broadcasting environment.[69]. A Directive[70] amending the original 1989 text was recently adopted in order to adapt the legal framework to change within the audiovisual landscape. The new Directive must be transposed by the end of 1998; the Commission will ensure that this process is rigorously brought to fruition.
The Directive leaves certain matters to the Member States, one of which is licensing. It was not considered that differences in these areas would create obstacles to the functioning of the Internal Market, i.e. to the free movement of television broadcasts. The Member States are required to ensure that broadcasters within their jurisdiction meet the minimal rules laid down in the Directive, but [in accordance with Article 189(3) of the Treaty] may decide how such obligations are to be implemented at national level.
Two further initiatives have been taken, in part with the purpose of supplementing the TVWF Directive in creating the legal framework for the `European audiovisual area'. In 1993, the Council adopted a directive on the co-ordination of certain rules concerning copyright and rights related to copyright, applicable to satellite broadcasting and cable retransmission.[71] More recently, the Commission has proposed a directive on the legal protection of conditional access services.[72]
Apart from the above-mentioned Community initiatives, audiovisual regulation is largely national in scope. The typology of regulation of audiovisual services is generally either positive (an obligation to fulfil e.g. provide a balanced range of programming) or negative (regulation to limit certain types of materiel e.g. incitement to racial hatred). Positive obligations are often met in practice, to varying degrees from one Member State to another, by broadcasters vested with a public service mission. Existing regulation is based in part on the widespread availability of television (its "pervasiveness"). It is clear that regulation must meet a proportionality test, and in a digital age it should and indeed is already evolving. This means that a lighter regulatory touch could be appropriate as a function of the nature of the service (e.g. satellite or cable pay-per-view is generally more lightly regulated than terrestrial free-to-air television, arguably the most pervasive of all media).
The publishing sector operates within a framework of more limited sector-specific regulation compared to telecommunications and audiovisual/broadcasting sectors, and there are fewer regulatory barriers to entry (in the sense of formal licensing requirements), although there are stringent rules applying to this sector.
At the same time, a range of controls are applicable to the broadcast media (for example, those relating to pluralism, foreign ownership and right-of-reply) also apply in some form to the publishing sector (and, in particular, the press), reflecting public interest objectives common to both sectors. However, the implementation of some of those principles for the publishing sector is through self-regulatory bodies, such as Press or Industry Councils or Codes of Practice, in contrast to the stronger powers for regulatory intervention in the broadcasting field. In addition many of the general rules related to public morals, advertising, libel, privacy, intellectual property protection, access to public documents, also apply to the publishing sector.
The Information Technology and software industries have even less of a tradition of sector-specific regulation, though once again horizontal rules relating to issues such as export controls, electro-magnetic interference; or consumer protection would apply, as would general competition law. [73]
Whilst approaches may be changing, particularly in key areas such as naming and addressing, there has been little sector-specific regulation of the Internet in Europe.[74]