IRIS plus – Legal Observations of the European Audiovisual Observatory, Strasbourg, November 2005 – 2005/11
The European Audiovisual Observatory has just published its latest IRIS plus entitled Application of EC Competition Policy regarding Agreements and State Aid in the Audiovisual Field. This report analyses the legal status of agreements and state aid concerning the audiovisual sector in EC law in accordance with the principle of free competition. The report starts by explaining in detail how EC competition rules are applied to business agreements between audiovisual undertakings, and also examines state aid to national audiovisual undertakings with regards to EC competition law. Secondly, the report looks at the exemption of certain types of audiovisual business agreements or forms of state aid from competition law restrictions, and provides an in-depth analysis of the developments which have opened the door to undisputed state funding of public broadcasting.
Finally, the report reminds us that the European Commission has announced that it will undertake consultations with a view to reforming State aid for film and television production, and concludes by highlighting the importance of the EC provision which aims at preserving the cultural diversity of European member states in any such reform. The author of the report, Laurence Mayer-Robitaille, comes to the conclusion that these agreements and state aid are treated with ambivalence—although they are subject to the principle of free competition, they receive special treatment under certain provisions of the Treaty establishing the European Community.
Moreover, this IRIS plus ties in to an earlier IRIS plus 2003-6 entitled European Public Film Support within the WTO Framework in that both articles examine the dual nature of audiovisual goods and services and its impact on supranational regulation. It is in this perspective that the Convention on the Protection and Promotion of the Diversity of Cultural Expressions, which was adopted by an overwhelming majority of UNESCO member states at the 33rd General Conference plenary in October 2005 in Paris, is evoked. The Convention underscores that “cultural activities, goods and services have both an economic and a cultural nature, because they convey identities, values and meanings, and must therefore not be treated as solely having commercial value” (Recital 18). In this respect, the author asserts that the adoption of the UNESCO convention underlines the desire to support cultural values, yet EC competition rules remain an important yardstick for how much support seems acceptable in a free market.