On 29 November 2023 the European Audiovisual Observatory organised a conference in Brussels, “The promotion of European works according to the AVMSD: where do we stand?” The conference was intended to launch a new Observatory publication, “The Promotion of European Works”. Video of the proceedings is accessible here. As a result of the discussion, I noticed something odd about the definition of “European works” in the Audiovisual Media Services Directive (AVMS) (Directive 2010/13/EU).
The AVMS Directive requires EU Member States to impose a cultural
quota on their television broadcasters.
They must include “European works” in a majority of their transmission
time. The European Convention on Transfrontier
Television (ECTT), a Council of Europe (CoE) treaty entered into
slightly before the passing of the AVMS Directive, makes similar
provision. Many EU Member States are party
to the ECTT. Articles 25 and 26 ECTT
provide for conciliation, then arbitration in case of dispute between states
Once the departure of the United Kingdom from the European
Union became imminent, the question whether UK works should continue to be
regarded as European for the purposes of the EU’s television quota under the
AVMS Directive became a persistent, if sotto voce, theme in European audiovisual
policy discussions. As Observatory
senior legal analyst, Francisco Cabrera observed while moderating the panel discussion (at
42.57), the “elephant in the room” was the question whether UK works should continue to be “European
In the negotiation of the terms of the British exit from the
EU, the EU’s position
was always that “Audiovisual services should be excluded from the scope of the
economic partnership”. This position was conceded by the UK, so that the field
remained open post-Brexit for attempts to exclude British producers from the
quota. However, for various reasons of
international law explored in an article
that I published last year, this would be very difficult to achieve. The main obstacle is that many EU Member States
are bound by the ECTT to treat all European works
as “European works” for the purposes of the cultural quota (except as between
EU Member States, for which EU law takes priority over the ECTT).
What is a “European work”?
There is a discontinuity between the AVMS definition of “European
works” and the ECTT conception. Simplifying
slightly, under the Directive European works are (i) works originating in EU
Member States; (ii) works originating in European states which are not EU
Member States but are party to the ECTT; and (iii) works produced under
co-production agreements between the EU and non-EU Member States (Article
1(1)(n), AVMS). It will be noted that under
this definition (leaving aside co-productions), programming from non-EU countries
will not count towards the quota unless those states are both (i) European and
(ii) party to the ECTT. In other words, works from European countries which are not party to the ECTT or the EU are excluded from the benefit of the quota under the Directive.
The ECTT formulates the cultural quota more broadly as “creative works, the production or co-production of which is controlled by European natural or legal persons” (Article 2(e), ECTT). The ECTT means by “European” simply European. The designation must at least extend to all the Members of the CoE and also covers parties to CoE treaties, such as the European Cultural Convention (ECC), even if, like Belarus or Kazakhstan, they have never been members of the CoE. This is clear from the fact that proposed amendments to the ECTT must be circulated to, among others, non-CoE members who are party to the ECC (Article 23(2), ECTT). In short, “European” here simply refers to countries contained by or extending to the European continent. It follows that programming from the Netherlands is (obviously) European for the purposes of the ECTT, even though the Netherlands is not party to the ECTT. So to is programming from Norway or Turkey.
Under the AVMS, however, works which come from non-EU,
non-ECTT European countries such as Armenia, Monaco or Russia are not “European
works”. Of course, these non-parties
cannot enforce the ECTT, but it is a different question whether their
works are European. The states
party to the ECTT owe their duty in international law to one another, but that
is not to say that a failure by one ECTT party to implement the cultural quota in
respect of European works with a non-ECTT origin could not give rise to a breach of the
treaty with respect to another ECTT party.
What does this mean for EU Member States party to the ECTT?
The many EU Member States party to the ECTT are in an
awkward position. Although as between themselves the AVMS Directive governs, in
their relations with non-EU ECTT states they must implement the cultural quota
as laid down in the ECTT. To be precise, their obligation
is to “ensure, where practicable and by appropriate means, that a broadcaster
within its jurisdiction reserves for European works a majority proportion of
its transmission time” (Article 10(1), ECTT).
Interpreted against that background, are EU Member States party
to the ECTT free to implement the cultural quota by limiting themselves to EU
works, to the exclusion of some or all ECTT members? Are they free, in other words, to determine what is or is not a European country for this purpose, notwithstanding their obligations under the ECTT?
A fundamental rule of international law is that “[a] treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose” and that every treaty “must be performed… in good faith” (Articles 31 and 26, Vienna Convention on the Law of Treaties 1969 (VCLT)). Just as between signing and ratification a state "is obliged to refrain from acts which would defeat the object and purpose of a treaty" (Article 18, VCLT), the object and purpose of the treaty must shape the obligation to implement the treaty, once ratified, in good faith. In the case of the ECTT, the treaty's object and purpose is to foster the circulation of European works, broadly defined, across borders.
When an ECTT state undertakes to apply the cultural quota, that obligation
is undertaken with regard to all the other parties to the treaty. It would seem that it would not be compliant
with the ECTT for a European state to impose a requirement on its broadcasters of transmitting solely national programming, even though in a simplistic sense a majority - indeed, all - of the works
broadcast would have their origin in a European state. By the same token, the limitation of the
quota by EU Member States to works originating in EU (or even ECTT) states would
not implement the ECTT’s quota for European works (in the broadest sense). The ECTT requires
application of a European quota as such, not a cherry-picking of favoured European
states of origin.
It follows that the exclusion of UK works from the
television quota under a revised AVMS Directive would compel EU states party to
the ECTT to violate the cultural quota of the ECTT. Any non-EU ECTT state affected would be
entitled to pursue a claim in arbitration against the EU Member State concerned. It is worth noting that arbitration under
Article 26 of the ECTT is mandatory once six months have expired from a first
request for conciliation.
A final point on arbitration
Under bilateral investment treaties (BITs), various
EU Member States have entered into obligations in international law to protect
the investments of UK (and often US) companies.
These “investments” invariably are defined to include intellectual
property, so any production made in an EU state, such as the recent Poor Things, shot
in Hungary in 2021, could qualify. Such
treaties may contain terms which would be violated by differential treatment of
EU and non-EU European works in breach of the ECTT. For example, in the UK-Hungary
BIT each state party covenanted to “observe any obligation it may have
entered into with regard to investors of the other Contracting Party” (Article
2(2), UK-Hungary BIT). It could be argued that the ECTT cultural quota is such
an obligation. The distinctive element
in these BITs is that the parties irrevocably consent to arbitration at the
request of the investor, who can then bring a claim for damages.
Even though many of the UK-EU BITs have been terminated in
the wake of the CJEU’s debated 2018 decision in Slovak
Republic v Achmea (the UK-Hungary BIT was terminated in
August 2022), BITs usually have long sunset clauses, typically of 20 years,
protecting investments made during the term of the BIT. No doubt it is an unlikely scenario, but if a
distributor found itself losing television sales as a consequence of the
exclusion of UK pictures from the quota, a claim in arbitration against the
ECTT state concerned would be conceivable.
All that having been said (and at such regrettable length), UK quality television is so strong in European markets, it may be that the best efforts of policy-makers will not make a lot of difference…