Regulators without Frontiers? European Regulators Group for Audiovisual Media Services (ERGA) and the Audiovisual and Media Services Directive 2.0


Professor Lorna Woods, University of
Essex

The
European Commission established ERGA, by a
Decision
in 2014, to facilitate the implementation of the
Audiovisual
Media Services Directive
(AVMSD, or Directive 2010/13/EU) and thus further
the internal market.  This seems to have
been a development of the High Level Group of Regulatory Authorities, which was
organised by the Commission (its inaugural meeting was 27 March 2003) and
brought together the Member State authorities responsible for the enforcement
in this field for twice yearly meetings. The aim was to reinforce cooperation
between national regulatory authorities with the aim of ensuring the consistent
application of the AVMSD.  It may be seen
as forming part of a trend at EU level to create networks – even those
involving Member State actors – to support or even intensify harmonisation. As
such they may be part of a shift away from decentralised enforcement to a more
centralised approach.  Such a development
is by no means certain, but it suggests that discussions about the role and
powers of any such body has a more than technical significance.

The
Decision establishing ERGA described its tasks as:

(a)
to advise and assist the Commission, in its work to ensure a consistent
implementation in all Member States of the regulatory framework for audiovisual
media services;

(b)
to assist and advise the Commission, as to any matter related to audiovisual
media services within the Commission’s competence. If justified in order to
advise the Commission on certain issues, the group may consult market
participants, consumers and end-users in order to collect the necessary
information;

(c)
to provide for an exchange of experience and good practice as to the application
of regulatory framework for audiovisual media services;

(d)
to cooperate and provide its members with the information necessary for the
application of the Directive 2010/13/EU, as provided for in Article 30 of Directive
2010/13/EU, in particular as regards Articles 2, 3 and 4 thereof (the basic
rules on cross-border broadcasting).

ERGA’s
establishment was thus not foreseen by the 2007 version of the AVMSD, and ERGA
operated in addition to the Contact Committee that had been created by Article
29 of the directive.  Implicitly, this
suggests that the Contact Committee was not sufficient in the Commission’s view
for consistent and effective implementation of the AVMSD across the Member
States. A European Parliament
resolution
from 2004 already ‘[r]egret[ed] that the Contact Committee established under
the television without frontiers is mostly composed of representatives of the
national government ministries and not by members of independent media
regulatory authorities’. 

In
the eyes of some, the Contact Committee did not – as a matter of form – allow
for the cooperation of the national regulatory authorities, as those regulators
did not necessarily participate in the Contact Committee. That situation could
adversely affect consistency in pan-EU application of the AVMSD and give rise
to concerns about enforcement, especially in the cross-border context and the
risks of an unequal playing field (as between the approaches of the various
Member States). The introduction of another forum for experts to share
experience also raises questions about the difference between ERGA and the
Contact Committee (if any) and their respective roles – especially given that
there is already a platform for media regulators (EPRA), albeit one that lies
outside the EU framework. 

Is
the significance of the proposal an attempt to delineate between effective
enforcement (which would fall to ERGA) and the development of policy (which is
the responsibility of the more political body, the Contact Committee)? This
point has indeed been made by the
Chair
of ERGA
. Or is ERGA just ‘more European’ than the Contact Committee by
virtue of its members’ independence from national political objectives, for
example?  That ERGA is about more than
effective enforcement finds some support in the
report
of EPRA which describes ERGA as holding ‘strategic EU policy-oriented
discussions’ and ‘intend[ing] to adopt common positions or declarations on the
implementation of the audiovisual EU regulatory framework’.

Moving
to the directive, Art. 30A of the revised AVMSD (re-)establishes ERGA, a
seemingly uncontroversial point from the Commission’s proposal which was
unchanged through the legislative process. The Commission envisaged that ERGA
would be composed of national ‘independent regulatory authorities’ in the field
of audiovisual media services, thus linking this to the new provisions on the
independent regulatory authorities introduced in Article 30 (containing
provisions to ensure independence).  By
contrast, the Contact Committee is ‘composed or representatives of the
competent authorities of the Member States’ and is chaired by a Commission
representative.  Apart from an attempt by
the European Parliament to install 4 MEPs on the Contact Committee
(unsuccessfully), this structure remained unchanged.  So while the Contact Committee may have
representatives from the relevant national regulatory authorities, it may not
in respect of all Member States.

The
difference in membership is significant: the Commission’s proposal sought to
ensure that it was the independent regulators, rather than Government ministers
or senior civil servants, which participated in ERGA. The Commission here would
no longer be controlling the meetings (as chair) but be ‘down-graded’ to
participant.  This too is important in
terms of ensuring that ERGA itself is independent from the Commission, as well
as from Member States and commercial interests. 
The wording has been amended slightly through the legislative process to
include the reference to national regulatory authorities and/or bodies in the
field of audiovisual media services. 
This change may be semantic to reflect the actual nature of the relevant
institutions, but arguably weakens the link to the independent regulators
required by Article 30.  Insofar as this
independence requirement might be seen as a fact making these regulators more
EU focussed rather than open to national policy initiatives (as has been seen
in other sectors, e.g. telecommunications), the change might be an attempt to
limit the supranational element of the proposal. This is in contrast to the
Contact Committee, which could well have (national) political undercurrents,
given that its membership might include politicians and civil servants as well
as or instead of technical experts. 

The
original Commission proposal more or less tracked the tasks ascribed to ERGA in
its 2016 decision with the addition of the task of giving opinions, when so
requested, ‘..on the issues envisaged in Articles 2(5b) [new provisions on
allocation of jurisdiction], 6a(3) [co-regulatory systems and the development
of Union codes of conduct], 9(2) [self/co-regulation in relation to food and
drink that are high in salt, sugars or fat (HFSS)], 9(4) [sharing best
practice/union codes of conduct in respect of HFSS foods and drink] and on any
matter relating to audiovisual media services, in particular on the protection
of minors and incitement to hatred’. 
This may reflect the power of the Commission, under Article 3(1) of the
Decision, to consult ERGA ‘on any matter relating to audiovisual media’ –
wording that is reflected in the recitals to the AVMSD (recital 37). With the
focus on new forms of governance, it could be said that the Commission
envisaged ERGA as having a significant role that maybe went beyond the idea of
enforcement alone, though the involvement in jurisdiction and
anti-circumvention decisions is in itself important (though note that the
database containing the details of which service provider is established where
is the responsibility of the Commission rather than – as suggested by the
Parliament in its AMD 52, the responsibility of the Commission and ERGA).

These
provisions did not remain unchanged. The initial view of the European
Parliament’s joint rapporteurs was that ERGA should remain a consultative body
without decision-making power and that more competences should be given to the
Contact Committee (with a revised constitution to include four MEPs). To this
end, the Parliament proposed that the Contact Committee should be provided with
relevant information as regards Article 3 [freedom of reception/derogation
procedures], 4 [circumvention provisions] and 7 [accessibility provisions] –
the first two points of which are now in the directive. 

The
Council’s view of ERGA’s role here was also more limited than the Commission’s
proposal, though it seems that there were some differences in views between the
Member States. Council amendments limited ERGA to giving technical advice –
though what ‘technical’ in this context means is rather uncertain – does it
relate to matters relating to technology (surely not) or instead advice in the
practical implementation of the rules? It seems that general policy advice may
lie outside ERGA’s competence, reflecting in broad terms the division of roles
between ERGA and the Contact Committee. The Council proposals also resulted in
the deletion of ERGA’s role in the reference to self and co-regulation in
Article 9.  The Council also pushed back
against the Commission’s control of ERGA in that the Commission proposal
envisaged that the Commission was to be empowered to adopt ERGA’s rules of
procedure.  According the Council’s view,
this falls to ERGA itself.  Under the
2016 Decision, ERGA had a limited ability to raise issues. Article 2(2)
provided that:

The chairperson of the group may advise the Commission to
consult the group on a specific question.

This
task does not appear in the list of tasks enumerated in the AVMSD – it is,
perhaps, a reflection of the fact that ERGA does not or should not have a
policy role.

ERGA
seems to be more limited than the Contact Committee. The tasks of the Contact
Committee are quite open-ended. It is to ‘facilitate effective implementation’
of the AVMSD – all of it – but in addition its scope is extended to ‘any other
matters on which exchanges of views are deemed essential’ (Article 29(2)(a) and
recital 32a). There is overlap with the tasks of ERGA in that both are
concerned in the exchange of best practice in relation to the derogation
provisions in Article 3(5). The AVMSD identifies further specific areas where
the Contact Committee is to be consulted. For example, it is the Contact
Committee and not ERGA that is to be consulted on the development of Union
codes of conduct (the development of which is stated to be ‘in accordance with
the principles of subsidiarity and proportionality (Article 4a(2) 3rd
para)).  In the context of the
development of guidance on the calculation of market share (Article 13(5a)) and
listed events (Article 14(2)), the Commission is empowered to consult the
Contact Committee not ERGA. While ERGA may be requested to give an opinion, the
Contact Committee may provide opinions on its own initiative. Further, in
addition to responding to requests from the Commission, the Contact Committee
may also respond to Member States’ requests. The Contact Committee’s role
extends to ‘examin[ing] any development arising in the sector on which an
exchange of views appears useful’ (Article 29(2)(f)).  This gives the Contact Committee an agenda
setting function which can also be seen in the fact that the Contact Committee
discusses what should be included in the reports that are submitted by the
Member States to the Commission on implementation of the AVMSD (see
guidance
issued by Contact Committee).

In
sum, ERGA is confirmed as part of the apparatus for consistent enforcement of
the AVMSD.  While it may be the case that
there is a distinction between the policy discussions and the coordination of
enforcement, it seems that there have been different views within the
institutions as to the role of ERGA and these might not go away on the coming
into force of the revised AVMSD. While we wait to see how ERGA operates in
practice and interacts with the Contact Committee it can be said that, on a
sliding scale of pan-EU regulators ranging from EU agencies at the top to
informal groupings at the bottom, the ERGA lies near the bottom with its
narrowly drawn, technical advisory role.

Photo
credit: flickr



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