Wolfgang Kleinwæchter
Universit of Aarhus / NETCOM Institute Leipzig
Public Broadcasting in Europe, the EU Amsterdam Protocol of 1997 and the GATS Negotiations within the WTO
1.
Broadcasting has started in the majority of the West-European countries as public service, financed mainly by license fees. It was the general understanding, that broadcasting has a “public function” to give “basic broadcasting services on a certain content standard to all citizens”, including minority groups. The “basic service” (Grundversorgung) was defined as “information, education, culture and entertainment”. Such a service was seen as a “constitutional element of a democratic society” to contribute to the free building of opinions in a social and political discourse of the country. The “basic service” for everybody justified the license fee obligation for everybody. The license fee system also guaranteed to a certain degree the independence from governmental control. The money came from the listeners and viewers and not from the state budget, although the parliaments decided on the amount of the fee. Additionally, in the majority of the European countries public broadcasters could also, under certain conditions (time and volume restrictions) send advertisements to get access to additional financial resources.2.
When private broadcasting was introduced in the early 1980s, private broadcasters, which had only advertisements as a source of income, got some “special regulation” which should them help to kick start better. They had no obligation to produce “basic services for everybody”, there has been no high quality content standards and a number of restrictions for advertisement (like in Germany the 20.00 hour barrier) had been removed.3.
With the growth of private broadcasting and the dramatic rice of prices for film and sports rights in the 1990s, the competition for advertising money became harder. Private broadcasters started to argue that the financing system of public broadcasters is a violation of European competition law. The license fee would give public broadcasters an unfair privilege and would undermine the capacity of private broadcasters to compete under equal conditions. Among the proposals which had been tabled has been·
the total removal of the license fee system (which would lead to the abolishment of the public broadcasting system)·
a clear distinction between license fee financed public broadcasting and advertisement financed private broadcasting·
a re-definition of “basic services” for public broadcasters which would exclude sports and films from basic services (which would lead to a marginalization of public broadcasting)4.
As a result of this debate the European Council discussed the issue and adopted as part of the “Amsterdam Treaty” (2nd of October 1997) a special “Protocol on Public Broadcasting Services” which reflects both the unanimously political will of the European governments, to keep the system of public broadcasting services alive but also takes note of the special interests of private broadcasters.5.
The text of this rather confusing language of this protocol reads as follows: “THE HIGH CONTRACTING PARTIES, CONSIDERING that the system of public broadcasting in the Member States is directly related to the democratic, social and cultural needs of each society and to the need to preserve media pluralism, HAVE AGREED UPON the following interpretative provisions, which shall be annexed to the Treaty establishing the European Community. The provisions of the Treaty establishing the European Community shall be without prejudice to the competence of Member States to provide for the funding of public service broadcasting insofar as such funding is granted to broadcasting organizations for the fulfillment of the public service remit as conferred, defined and organized by each Member State, and insofar as such funding does not affect trading conditions and competition in the Community to an extent which would be contrary to the common interest, while the realization of the remit of that public service shall be taken into account.”6.
In a clearer language, the protocol says that a financing system based of license fees is legal and justified because public broadcasting is directly related to the “democratic, social and cultural needs of each society” and it is an important element to safeguard “pluralism”. On the other hand, it says that funding of public broadcasting should not “affect trading conditions and competition”. With other words, there should be a “fair balance” which should allow private broadcasters to compete under “fair conditions” what ever this is. At the same time, the protocol says, that, according to the principle of subsidarity, the concrete practice is a sovereign decision of the member state.7. This European issue became a global issue when “trade in services” became a part of the mandate of the “World Trade Organization’s (WTO) negotiations on global trade liberalization. The issue here is, that according to the WTO rules, there should be no national subsidies for the production of goods and services which would distort competition. From a US perspective, the European license fee system for broadcasting is interpreted as such a “subsidy” which undermines and blocks the capacity of US broadcasting corporations to enter the European broadcasting market.
8. The European Union and the European Parliament has made clear, that in the forthcoming negotiations on a renewed “General Agreement on Trade in Services” (GATS), which will include also broadcasting services, they will argue in favor of a “cultural exception clause”. Such an “exception clause” allows special treatment in certain areas where special “democratic, social and cultural needs of a society” are at stake.
9. The issue was already on the agenda of the failed WTO meeting in Seattle in 1999. The following WTO Development Round of the so-called Doha-Process includes also this subject, but it is not yet discussed in details. The recent Cancun conference (September 2003) , which failed, has been dominated by the issue of free trade in the agrarian sector. But it is only a question of time, that issues like broadcasting and other media and teleservices and trade related issues of intellectual property right (TRIPS) will move further into the center of the WTO discussion. There is no clear picture at this moment, how controversies could be bridged and the potential conflicts could be settled. It is also unclear how this potential US-EU conflict will be influenced by other WTO members and special positions of third world countries and the leaders of the G 21 (China, India, Brazil and South Africa) which have not yet made clear statements about their relevant positions. On the the other hand, the recent failure of PrepCom3 (September 2003) for the planned World Summit on the Information Society (WSIS) in Geneva, December 2003, signaled a growing global conflict potential in this area.