State Aid for Public Service Broadcasting in the European Union Preben Sorensen & Vincent Porter EURALVA

Scope Listeners, Viewers and Public Service Broadcasting Listeners, Viewers and Public Service Broadcasting The Commission’s Second Draft Communication on State Aid to PSB The Commission’s Second Draft Communication on State Aid to PSB State-aided, or Public Service Broadcasting? State-aided, or Public Service Broadcasting? Public Service Remits: from Subsidiarity to Minimum Standards Public Service Remits: from Subsidiarity to Minimum Standards Monitoring the Development of New Public Services Monitoring the Development of New Public Services

Listeners, Viewers and Public Service Broadcasting TV is very important to all EU citizens, but information services not always adequate (see various Eurobarometer Reports) TV is very important to all EU citizens, but information services not always adequate (see various Eurobarometer Reports) PSB is third highest beneficiary of State aid in EU (22 billion Euros. annually) PSB is third highest beneficiary of State aid in EU (22 billion Euros. annually) PSB is paid for by Listeners and Viewers – often by regressive taxes PSB is paid for by Listeners and Viewers – often by regressive taxes Listeners and Viewers want a range and diversity of programmes related to their democratic, social and cultural needs. Listeners and Viewers want a range and diversity of programmes related to their democratic, social and cultural needs.

The Commission’s Draft Second Communication on State Aid for Public Service Broadcasting General Welcome by EURALVA of the Draft Communication as a genuine attempt to chart a forward-looking middle way. General Welcome by EURALVA of the Draft Communication as a genuine attempt to chart a forward-looking middle way. First Shortfall: Failure to distinguish clearly between Public Service and State-aided Broadcasting First Shortfall: Failure to distinguish clearly between Public Service and State-aided Broadcasting Second Shortfall: Exclusive Reliance on Competition Theory, not on social needs, to monitor performance of newly-approved public services Second Shortfall: Exclusive Reliance on Competition Theory, not on social needs, to monitor performance of newly-approved public services

State-aided or Public Service Broadcasting? An Economic Approach versus a Programming Approach. An Economic Approach versus a Programming Approach. The Importance of the Public Service Remit The Importance of the Public Service Remit Amsterdam Treaty, article 16: “Commission and Member States to co-operate … on principles and conditions to enable [psbs] to fulfil their missions” Amsterdam Treaty, article 16: “Commission and Member States to co-operate … on principles and conditions to enable [psbs] to fulfil their missions” ECJ: “the recipient undertaking must actually have public service obligations to discharge, and the obligations must be clearly defined” (C 226/1 – Altmark 1) ECJ: “the recipient undertaking must actually have public service obligations to discharge, and the obligations must be clearly defined” (C 226/1 – Altmark 1) Subsequent Criticisms of Commission by ECFI on State Aid to Portugal (T ) and Denmark (T ) Subsequent Criticisms of Commission by ECFI on State Aid to Portugal (T ) and Denmark (T ) Need to replace Subsidiarity by Minimum Standards Need to replace Subsidiarity by Minimum Standards Requires broader approach from the Commission? Requires broader approach from the Commission?

Establishing Minimum Standards Harmonisation of public service remits neither possible nor desirable. BUT is each remit Harmonisation of public service remits neither possible nor desirable. BUT is each remit Likely to promote social and territorial cohesion? (Amsterdam art. 16) Likely to promote social and territorial cohesion? (Amsterdam art. 16) Directly related to the democratic needs of listeners and viewers? (Amsterdam Protocol 1) Directly related to the democratic needs of listeners and viewers? (Amsterdam Protocol 1) Directly related to the social needs of listeners and viewers? (Amsterdam Protocol 2) Directly related to the social needs of listeners and viewers? (Amsterdam Protocol 2) Directly related to the cultural needs of listeners and viewers? (Amsterdam Protocol 3) Directly related to the cultural needs of listeners and viewers? (Amsterdam Protocol 3) Possible reference (post-Lisbon Treaty) to earlier work on public service broadcasting by Council of Europe Possible reference (post-Lisbon Treaty) to earlier work on public service broadcasting by Council of Europe

Monitoring Development of PSB Services Ex-ante Approval by Commission Ex-ante Approval by Commission Mode of Ex-post Monitoring? Mode of Ex-post Monitoring? EURALVA approves measures to eliminate over- compensation and cross-subsidisation, but EURALVA approves measures to eliminate over- compensation and cross-subsidisation, but Commission’s proposals may be over- prescriptive since they do not allow consideration of improvements made by new services to democratic, social and cultural needs of listeners and viewers. Commission’s proposals may be over- prescriptive since they do not allow consideration of improvements made by new services to democratic, social and cultural needs of listeners and viewers. All IP rights are ‘anti-competitive’ All IP rights are ‘anti-competitive’

Finally … The Commission and the European Parliament should bear in mind that: The Commission and the European Parliament should bear in mind that: it is the democratic, social and cultural needs of Europe’s citizens it is the democratic, social and cultural needs of Europe’s citizens as well as media pluralism as well as media pluralism which should underpin all their proposals for the future. which should underpin all their proposals for the future.