EUROPEAN BROAD CASTING LAW AND POLICY Part 6 ppsx

174 jackie harrison and lorna woods and in terms of the appropriate legal regime within the relevant member state that should be applied. The original version of the TWFD sought to address the issue of juris- diction. The number of cases which arose on the interpretation of that provision suggests that this was not an entirely successful venture. The Amended Directive adopted the solution that the European Court of Justice (ECJ) developed. Yet, as we face a second revision process, the issue of jurisdiction has once again arisen. This chapter will trace the develop- ment of the jurisdiction clause and consider the impact on the viewing experience. In the light of this we shall assess the extent to which an appropriate balance between trade and non-trade issues has been found. The original version of the Television Without Frontiers Directive In its original version Article 2(1) provided: Each Member State shall ensure that alltelevision broadcasts transmitted by broadcasters under its jurisdiction, or by broadcasters who, while not being under the jurisdiction of any Member State, make use of a frequency or a satellite capacity granted by, or a satellite up-link situated in, that Member State comply with the law applicable to broadcasts intended for the public in that Member State. The provision envisages two possible situations: first, that where a mem- ber state would normally have jurisdiction; and secondly, one in which satellite frequencies and uplinks come into play. Looking first at the ‘nor- mal’ situation, the approach was not helpful. In effect, the Union defined ‘jurisdiction’ by saying that those that have jurisdiction have jurisdiction. The definition did not help in defining who would normally have the juris- diction to regulate broadcasts in a given situation. This is perhaps symp- tomatic of the different viewpoints held on this matter; one Advocate- General suggested that the use of such vague terminology was designed to coverthe fact that there was no political agreement as to the approach to be taken. 2 The Commission,however,thoughtthematter of jurisdiction was clear. In its original proposal, the draft directive proposed by the Commis- sion included two defined terms not found in the TWFD as enacted: ‘internal broadcasts’, and ‘cross-frontier broadcasts’. ‘Internal broadcasts’ 2 Case C-222/94 Commission v. UK [1996] ECR I-4025, para. 46. The Advocate-General in his opinion in this case gives a thorough review of the possible interpretations of the jurisdiction clause. jurisdiction, forum shopping . . . 175 were defined as the ‘initial transmissions by public or private undertak- ings engaged in broadcasting on the territory of a Member State . . .’ ‘Cross-frontier broadcasts’ concerned only those transmissions capable of reception by the public in another member state. These definitions indirectly addressed the issue of jurisdiction, and illustrate the Commis- sion’s approach in this matter. The term ‘internal broadcast’ assigned responsibility for regulation by reference to where the broadcasting body was established in the sense used in relation to the right of establishment contained in Article 43 EC. This principle of home-country regulation was reinforced by the inclusion in the definition of ‘internal broadcasts’ of the phrase ‘including transmissions exclusively intended for recep- tion in other Member States . . .’. On this approach, place of reception was irrelevant. This principle the Commission sought to re-emphasise in its explanatory memorandum and in its first Report on the Application of Directive 89/552/EEC. 3 As the Commission noted, the member state in which the broadcasting body was established would have jurisdiction ‘irrespective of the destination of the broadcast’. 4 Although the Commission might have been clear in its views on this point, there were other possible ways of viewing jurisdiction. The Con- vention on Transfrontier Television (CTT), enacted at approximately the same time, took a different approach, as the British government argued when the Commission brought action against it for faulty implementa- tion of the TWFD. 5 The UKgovernment had interpreted Article 2 TWFD to mean that jurisdiction to regulate content devolved to the state which controlled the radio frequency on which the television programme was broadcast, taking into account the intended recipients of the broadcast. The ECJ broadly agreed with the Commission and held that jurisdic- tion depended on ‘establishment’, although it should be noted that the ECJ seemed keen to distinguish between establishment in the usual treaty sense of the term, as defined in Factortame, 6 and establishment in the spe- cific context of broadcasting. The test for establishment is usually taken to be ‘the actual pursuit of an economic activity through a fixed estab- lishment in another Member State for an indefinite period’. 7 The ECJ 3 Commission, Reporton the Application of Directive89/552/EEC and a Proposal for aEuropean Parliament and Council Directive amending Council Directive 89/552/EEC (COM (95) 86 final), p. 27. 4 Commission, Explanatory Memorandum, para. 101. 5 Case C-222/94 Commission v. UK. 6 Case C-221/89 Factortame and Others [1991] ECR I-3905. 7 Case C-221/89 Factortame, para. 20. 176 jackie harrison and lorna woods determined establishment in the broadcasting context to be ‘the place in which a broadcaster has the centre of its activities, in particular the place where decisions concerning programme policy are taken and the pro- grammes to be broadcast are finally put together’. 8 None the less, despite the definition highlighting the importance of the location of the editorial team for determining establishment in the broadcasting sector, this ele- ment of the test would only become relevant if there were more than one location within the Union which could be considered to be a broadcaster’s place of establishment. 9 Reception asacriterion remained excluded. This approach was maintained, with the exception of the De Agostini case, 10 in subsequent cases which came before the ECJ on this point prior to the amendment of the TWFD. 11 The EFTA Court has taken a similar line. 12 The issueof editorial control hasresurfaced asthe TWFD undergoes its second review, this time not in the context of determining the location of the broadcaster but in determining the type of service (see further below). Although this basic principle of establishment may have been clear since Commission v. UK, the ECJ’s later jurisprudence identifies a number of refinements. In VT4 13 the issue of double control arose. The Belgian authorities sought to regulate the retransmission by cable or satellite broadcasts originating from (and regulated by) the UK. The company was established in a ‘Factortame’senseinthe UK; not only was the company incorporated under English law but senior management was based in the UK and some programme decisions were made there. Equally, however, VT4 had a physical presence in Belgium and some programme decisions were made there. Given that the definition of broadcasting in the orig- inal draft directive had been amended by the deletion of any reference to ‘retransmission’ to ensure that member states’ regulatory authorities should not exert secondary control in such circumstances, it is not sur- prising that the ECJ ruled against the Belgian authorities, despite the fact that the programmes were aimed at Flanders. 8 Case C-222/94 Commission v. UK, para. 58. 9 See Advocate-General Lenz’s views in Case C-14/96 Criminal Proceedings against Paul Denuit [1997] ECR I-2785. 10 Joined Cases C-34-36/95 Konsumerntombudsmannen v. De Agostini (Svenska) Forlag AB and Konsumerntombudsmannen v. TV-shop i Sverige AB [1997] ECR I-3843. 11 Case C-11/95 Commission v. Belgium [1996] ECR I-4115, Case C-14/96 Denuit,Case C-56/96 VT4 Limited v. Vlaamse Gemeenschap [1997] ECR I-3143. 12 Joined Cases E-8 and 9/94 Forbrukerombudet v. Mattel Scandinavia A/S and Lego Norge A/S,Report of the EFTA Court, 1 January 1994–30 June 1995, p. 115. 13 Case C-56/96 VT4 Limited v. Vlaamse Gemeenschap. jurisdiction, forum shopping . . . 177 Such an approach, although it prohibits two sets of regulation, does not address the question of which regulatory authority should have the right and the responsibility to regulate. The problem is illustrated perhaps more clearly in the earlier case of Denuit, 14 which concernedacompany which was established in theUKbutwhich broadcast to Belgium. Editorial decisions were made in the USA, as the company established in the UK was the subsidiary company of an American company. Despite the fact that the UK had the least to do with the actual programming broadcast, the ECJ, in the interests of protecting the internal market and the one-stop shop principle, held that the Belgian authorities could not regulate the service. The Belgian authorities argued that, given the British rules, which at that time, distinguished between domestic and non-domestic satellite services, the UK authorities were not regulating the service. Arguably, then, there was no duplication of regulation; indeed, unless the Belgian authorities regulated, there was an absence of regulation. The ECJ rejected this argument. Member states cannot use another member state’s failure to comply with Union law to justify their own failure to comply with Union law. VT4 raised another issue; that of the ‘abuse’ of Union law to avoid national regulation. This issue had arisen in the context of broadcasting before in the cases of TV10 15 and Ve ronic a. 16 In its early jurisprudence in van Binsbergen, 17 the ECJ had accepted that Union law should not be used to avoid national regulation. This principle is sometimes referred as anti-avoidance or the circumvention principle. It was extended to the broadcasting sector in TV10 and Veronica,both cases which concerned broadcasters establishing themselves in Luxembourg, a state which per- mitted the broadcasting of advertising, but broadcasting at the Dutch audience, thereby circumventing the Dutch restrictions on advertising. In the first of the two cases, Veronica, the ECJ accepted that the establish- ment in Luxembourg was motivated by a desire to avoid the Dutch rules. It then held that Dutch legislation could in this situation be applied to the 14 Case C-14/96 Denuit. 15 Case C-23/93 TV10 SA v. Commissariaat voor de Media [1994] ECR I-4795. 16 Case C-148/91 Ve reniging Veronica Omroep Organisatie v. Commissariaat voor de Media [1993] ECR I-487. 17 Case 33/74 Van Binsbergen v. Bestuur van de Bedrijfsvereniging voor de Metaalnijverheid [1974] ECR 1299, para. 13: ‘a member state cannot be denied the right to take measures to prevent the exercise, by a person providing services whose activity is entirely or principally directed towards its territory, of the freedom guaranteed by Article [49] for the purpose of avoiding the professional rules of conduct which would be applicable to him if he were established within that state ’. 178 jackie harrison and lorna woods broadcaster. What the ECJ did here was not state that the anti-avoidance principle was an exception to the free-movement right, but instead that the company could not rely on those rights as it was, in reality, established in the Netherlands. This is a clearly different approach to establishment from that taken under the TWFD, though, as we have noted, the two tests of establishment (that in TWFD and that with regard to Article 43 EC) are not exactly the same. 18 The implications of the Veronica judgment were examined more closely in TV10,with an emphasis on the circumstances in which the anti-avoidance principle would be applied. Since the early case of van Binsbergen,itseemedthat the central concern addressed by the ECJ was that evasion of national rules was taking place; the nature of the national rules evaded in a given case did not seem significant. In Ver onica, a slightly different approach can be identified. The ECJ had emphasised that the Dutch rules in question were aimed atprotecting a publicinterest, although the ECJ also mentioned that the broadcaster was ‘improperly evad[ing]’ the Dutch regulation. 19 This arguably shifts the focus of the inquiry from the person (and possibly that person’s motivation) to the national rules 20 and, in particular, limits the permissible interests pro- tected by national rules to those viewed under Union law as being in the public interest. 21 By contrast, in TV10 both the Advocate-General and the ECJ adopted a formulation in which a requirement for the anti- avoidance principle to apply was that the national rules being evaded were not incompatible with Union law. 22 This formulation of the anti- avoidance or circumvention principle is arguably wider than that used in Ver onica,asitisnot necessarily limited to circumstancesinwhich ‘overrid- ing interests’ in the sense of Union law (that is, goals Union law recognises as being in the public interest; see chapter 4)are in issue. Although the precise scope of permissible national rules is not clear, 23 the focus is once 18 See, e.g., ECJ’s assumption in Case C-14/96 Denuit, para. 23. 19 As we have seen in ch. 5, the ECJ has accepted that measures designed to protect media pluralism are in the public interest, though it has found very few of them in practice to be acceptable under Union law, viewing most of them as disproportionate. 20 L. Hell Hansen, ‘The Development of the Circumvention Principle in the Area of Broad- casting’, Legal Issues of European Integration 25 (1998/2), 111, p. 122, for criticism in the lack of clarity in the ECJ’s reasoning here. 21 Foradiscussion of the scope of derogations in Article 46 EC and interests of overriding public interest, see, e.g., L. Woods, Free Movement of Goods and Services in the European Community (Aldershot: Ashgate, 2004), ch. 12, esp. pp. 249–54. 22 Case C-23/93 TV10:Advocate-General Lenz, Opinion paras.12–15; judgment, paras. 20–1. 23 There may, for example, be problems with the acceptability of rules perceived as dispro- portionate to their aims; see further ch. 4. jurisdiction, forum shopping . . . 179 again on the body seeking to rely on arguments about the right to freedom of movement. These cases suggest that a company which establishes in one member state and broadcasts to another to evade the receiving state’s system of regulation aimed at protecting media diversity and freedom of expression would find itself subject to the receiving state’s rules. The ECJ’s theory underlying this point is not so clear. In some ways, itseems that the focus of the ECJ’s approach is onwrong- doing, not on the substance of the rules evaded, as we can see in TV10, which narrowed the scope of the anti-avoidance principle in another important aspect. In TV10, the ECJ appeared to set down a two-stage test: the broadcaster’s output should be directed wholly or principally towards the member state seeking to claim jurisdiction; and the broadcaster must have established itselfin another memberstate in order toenable it toavoid the rules in issue. 24 Although an approach focussing on the beneficiary of the free-movement right seems to broaden the scope of action left to member states, the formulation here seems to limit the application of the principle to cases of deliberate, and therefore blatant, evasion. This formulation is much narrower than the early formulation in van Binsbergen.Although it might be argued that the question of whether the broadcaster was directing its broadcasts wholly or principally at another member state is an objective question of fact, neither the ECJ nor the Advocate-General gave any indication as to what factors should be taken into account. A difficulty arises as, in adopting a two-stage test, the ECJ is reintroducing the question of motive, implicit in its comments in van Binsbergen, 25 into the anti-avoidance equation. The question, then, is how would one prove motive? As noted in the cases brought under the TWFD, many of the factors that one might rely on to show intent to evade, or indeed the fact that a broadcast is aimed at another member state, are based on assumptions about where the nationals of particular member states would ‘normally’ be working. They are therefore based on assumptions contrary to fundamental principles of Union law, which prohibit discrimination based on nationality and assumptions such as the Dutch not normally working in Luxembourg. Given that the question of establishment turned out to be crucial for the application of TWFD, and especially given the difficulties encoun- tered in cases such as Denuit and VT4, the potential application of the anti-avoidance principle within the context of TWFD was important, par- ticularly from the perspective of the receiving member state’s regulatory 24 Case C-23/93 TV10, para. 26. 25 Case 33/74 van Binsbergen,para. 13. 180 jackie harrison and lorna woods authorities. In VT4, the regulatory authorities argued that the sole reason that the company established itself in the UKwas for the purpose of avoid- ing the monopoly granted to VTM on the broadcasting of advertising. It therefore constituted a blatant case of forum shopping, or regulatory arbitrage; that is, choosing one’s place of establishment with a view to affecting the law applicable to one’s activities. The referring court did not raise this question in its reference to the ECJ, which therefore did not address the issue. 26 The Advocate-General, however, did, suggesting that the TV10 principle should continue to apply even after the entry into force of the TWFD, although he suggested a very restrictive interpretation of that principle. 27 The matter of jurisdiction within the terms of the TWFD also arose in de Agostini,which, on the face of it, concerned similar patterns of facts to the Belgian cases. A broadcaster established in the UK was broadcasting to Sweden in contravention of a number of the Swedish rules on advertis- ing, both advertising aimed at children and misleading advertising. The Advocate-General in this case adopted an analysis which followed the ECJ’s approach in Commission v. UK and the Belgian cases. Although he did recognise the potential application of the anti-avoidance principle, he emphasised that it should not be read too widely. 28 The ECJ, however, took a different approach. Instead of looking at formal criteria relating to where the broadcaster was established, which assumes that the TWFD is the relevant piece of legislation, it considered the subject-matter of the TWFD and whether the TWFD was the only Union act to take into account. That is, did the TWFD harmonise the field exhaustively, even if only at a minimum level? By referring to the recitals, it became apparent the TWFD was not the only possible piece of relevant legislation. The TWFD envisaged that, in the field of advertising, other Union measures existed which would also govern advertising, though the terms of the recitals are not limited to specific directives. This fact opened the way for the ECJ to mitigate the impact of its rulings regarding jurisdictional allocation of power, by removing the subject-matter of the dispute from the scope of the TWFD at an earlier point in the analysis. The issue for the ECJ was not one of whether the matter concerned broadcasting rather than another form of communication service, but whether the TWFD 26 Note that the EFTA Court in a similar case under the TWFD did not adopt the anti- avoidance principle: Cases E-8 and 9/94 Mattel and Lego. 27 In this he took the same approach as he had done in Case C-11/95 Commission v. Belgium. 28 Cases C 34-6/95 de Agostini,Opinion of the Advocate-General, para. 45. For criticism of this approach, see Hansen, ‘Circumvention Principle’, pp. 132–3. jurisdiction, forum shopping . . . 181 was the end-point of the legal analysis within the broadcasting sphere. In de Agostini,thereturnedout to be a difference between the rules relat- ing to children, which the ECJ determined were covered entirely by the TWFD in its provisions relating to the protection of minors in the con- text of advertising, and the misleading advertising provisions. As well as being dealt with by the TWFD, the prohibition of misleading advertis- ing was harmonised within the context of advertising generally. Surpris- ingly, the ECJ also held that the recitals which referred to other Union measures also implied that there might still be room for member state action within the scope of areas which the TWFD co-ordinated but did not harmonise. 29 The ECJ stated that member state national rules on matters co-ordinated by the TWFD would be permissible provided that they did not constitute a secondary means of control over broadcasts, which would undermine the TWFD. This statement is problematical. In its analysis, the ECJ seems to treat the problem relating to adver- tising as separate from that concerning broadcasting, which overlooks the fact that, as advertising is content, it is hard to distinguish between broadcasting and advertising in this way. It is questionable whether, in practice, de Agostini saves many national laws as, given the link between advertising and the broadcasting service, it is hard to imagine a situation where national advertising rules would not act as a secondary means of control. Prior to the revision of the TWFD the issue of jurisdiction was clear, though giving rise to concern. The possibility of using the anti- avoidance principle to relocate establishment to the receiving member state within the terms of the TWFD was slim. Questions of editorial decision-making notwithstanding, formal institutional criteria were of greater weight than those relating to the substance of the broadcast con- tent itself. Some member states and some commentators were worried that the approach adopted by the ECJ, although it did not follow exactly that of the Commission, was orientated towards the commercial consid- erations of broadcasting. That is, it did not seem to take into account the cultural aspects of broadcasting, allowing no place for member state sen- sitivity in these areas and overlooking the interests of citizens. The earlier approach in Ve ronica and TV10 allowed some scope for memberstates to clamp down on those broadcasters which were deliberately ‘playing 29 Asimilar approach has been taken with respect tothe e-Commerce Directive (Directive 2000/31/EC), discussed inJ. H ¨ ornle, ‘Countryof Origin Regulation inCross-border Media: One Step Beyond the Freedom to Provide Services?’, International and Comparative Law Quarterly 54(1) (2005), pp. 89–126. 182 jackie harrison and lorna woods the system’ so as to evade inconvenient national rules, the scope of this approach was limited and also unclear. Once the TWFD was enacted, the scope of the anti-avoidance doctrine was narrowed down still further. The problem for the ECJ in this context is that an over-broad interpretation of the anti-avoidance principle can be used to undercut entirely the free- dom of establishment and the freedom to provide services. 30 Although de Agostini might, as discussed, provide some legal space for national rules, this would apply to limited types of content, mainly advertising-based content, and give rise to other practical problems. De Agostini illustrates one of the ironies underlying the TWFD, in that it is in the areas in which the member states have recognised the greatest need for action, such as the protection of minors, that the internal market rules operate the most clearly to bring the level of protection down to the lowest level within the Union (see chapters 4 and 10). Despite the fact that the TWFD allows member states to take action to impose higher standards on broad- casters within their jurisdiction, these standards cannot be imposed on broadcasters established elsewhere. As ever, the ECJ’s toleration of reverse discrimination functions so as to trigger a downward spiral in standards to the lowest level. The 1997 Amending Directive Although the 1997 Amending Directive retains the principle of the ‘one- stop shop’, namely that there should only be one regulator throughout the Union in respect of a given broadcaster, it recognises that the variety of factual situations was not adequately dealt with by the interpretation given to the previous version of Article 2. The revised Article 2, relying heavily on the approach taken by the ECJ in its case law, details various factual permutationsandthe impact thereof on the determination ofjurisdiction. The ultimate fall-back position, however, is that of the Commission, the use of the Factortame definition of establishment. 31 Although the Amending Directive, in reaffirming the ‘one-stop shop’ principle, recognises internal-market concerns, it also takes note of the 30 In the context of freedom of establishment, see the development of the case law in Case C-212/97 Centros v. Erhvervs-og Selskabsstyrelsen [1999] ECR I-1459 etc; is part of the development of case law to do with the difference between access to the territory/market versus professional rules for behaviour in the market? 31 This remains in the draft second amending directive: Commission, Proposal for a Directive amending Directive 89/552/EEC,COM(2005)646 final, 2005/0260 (COD), SEC (2005) 1625 and 1626, p. 15, Article 2(5). jurisdiction, forum shopping . . . 183 anti-avoidance principle by making express reference to it in Recital 14. This suggests that, despite the difficulties noted earlier in the ECJ’s rulings in this area, the anti-avoidance principle remains available to the regula- tory authorities in recipient member states to allow them to take action against broadcasters which are playing the system. Recitals are not, how- ever, legally binding provisions, and there is no expression of the principle in the operative parts of the directive. Given that recitals are aids to inter- pretation, onemight suggestthatthe jurisdictionclausebe read in the light of Recital 14. If the anti-avoidance principle is seen as affecting the deter- mination of establishment, as it did in TV10,the lack of a legally binding anti-avoidance principle in the TWFD complicates an already confused state of affairs. The problem is exacerbated by the fact that some of the criteria that can be used to identify the abuse of free-movement rights, such as location of workforce, are also used to determine jurisdiction within the TWFD. There thus seems to be the possibility of blurring the test for establishment with that for the application of the anti-avoidance principle. The draft second amending directive (DSAD) introduces provisions which allow member states to counter ‘abuse or fraudulent conduct’, sub- ject to compliance with certain procedural requirements although the wording changed through the legislative process. 32 Crucially, DSAD does not define what it meant by ‘abuse or fraudulent conduct’, specifying that the requirement to act is to be proven on a case-by-case basis. Recital 23 to DSAD indicates that the provision is intended to codify the ECJ’s jurisprudence in this regard. Given the somewhat unclear line of reason- ing the ECJ has adopted, it is interesting that the recital refers to only some of the ECJ’s decisions in this area: van Binsbergen, TV10 and Centros.This suggests that the limitations imposed by the Ve ronica line of reasoning will not find their way into the TWFD; it does not help to clarify the precise circumstances in which the provision may be used. The vagueness of this drafting is a serious weakness in the provision, opening the way for inconsistencies in the way it is used, which provides no benefit either to promoting the internal market or respecting the cultural competence of the member states. The jurisdiction clause as it currently stands is structured so as to iden- tify a range of possible factual circumstances, starting with the simplest, and moving on through a range of more complicated company structures. 32 See draft second amending directive COM(2005)646 final, Article 2(7)–(10). See also appendix. [...]... television broadcasting activity’, or whether it can be seen as both broadcasting activity and editorial activity Clearly, the determination of the meaning of terms and phrases like ‘head office’, ‘editorial decisions on programme schedules’ and ‘a significant part of the workforce involved in the pursuit of the television broadcasting activity’ is important if we are to understand fully how a broadcasting... Directive 89/552/EEC, COM (2005) 64 6 final, 2005/0 260 (COD), SEC (2005) 162 5 and 162 6 Articles 1(a) and 1(f), draft second amending directive, COM (2005) 64 6 final G Schuman, Regulation of Advertising in the New Television without Frontiers Directive: Background Paper for the Plenary EPRA/2001/08, 26 8 September 2001, p 6, suggested an alternative principle: ‘Advertisements and advertisers shall not influence... that the definition may be inadequate The nature of broadcasting is not so clear in these days of narrowcasting, webcasting and interactive television The problem was becoming evident by the 1997 revision of the TWFD, when, although the actual definition of broadcasting remained the same, the distinction between near video on demand (NVOD) and video on demand (VOD) was introduced to delimit the scope of... 16 Council of Europe, Explanatory Memorandum to the Convention on Transfrontier Television, para 245 and Case C-245/01 RTL v Nieders¨ chsische Landesmedienanstalt f¨ r privaten a u Rundfunk, [2003] nyr, judgment 23 October 2003, paras 62 –3 and 65 Article 3(1) TWFD There are technical arguments about the relationship between this general provision permitting member states to impose higher standards and. .. nature of broadcasting, it seems the European institutions have determined that the boundary between broadcasting and other ‘information society’ services lies here (see chapter 3) The term ‘information-society service’ is defined as ‘any service normally provided for remuneration, at a distance, by 35 T Gibbons, ‘Jurisdiction Over (Television) Broadcasters: Criteria for Defining “Broadcaster” and “Content... member states cannot impose standards higher than those set down in the TWFD on broadcasters established in another member state. 16 One of the problems encountered in the regulation of advertising is how to identify the difference between commercial broadcasting (which consists of advertising, sponsorship and other forms of commercial communications) and editorial content (which, broadly speaking, consists... those member states, the broadcaster shall be deemed to be established in the member state where it has its head office; if a significant part of the workforce involved in the pursuit of the television broadcasting activity operates in neither of those member states, the broadcaster shall be deemed to be established where it first began broadcasting in accordance with the system of law of that member state,... multinational environment, in which content is created, packaged and transmitted by different combinations of operators The question, here, is whom should the TWFD be regulating and by what legislation? Technological and industry developments have thus rendered the scope of broadcasting, and consequently a regulatory system based on the concept of broadcasting, unclear There have been consequent difficulties... the English language: advertorial and infomercial are both found in the Oxford English Dictionary L Woods and A Scheuer, ‘Advertising Frequency and the Television without Frontiers Directive’, EL Rev 29 (2004), 366 –84, p 374 See Woods and Scheuer, ‘Advertising Frequency’, pp 374–5 for a more detailed discussion of these points Article 10(3) TWFD 2 06 jackie harrison and lorna woods in Article 18 become... to content standards (including the prohibition of certain types of advertising, Articles 12– 16; see chapter 10); thirdly, the linked rules regarding placement, that is the question of where advertising may be broadcast; fourthly, frequency, which relates to how often (Articles 10 and 11); and fifthly, quantity (Article 18 and 18a) A separate article, Article 17, deals with sponsorship, and there are . the broadcasting sector in TV10 and Veronica,both cases which concerned broadcasters establishing themselves in Luxembourg, a state which per- mitted the broadcasting of advertising, but broadcasting. Commission, Proposal for a Directive amending Directive 89/552/EEC,COM(2005 )64 6 final, 2005/0 260 (COD), SEC (2005) 162 5 and 162 6, p. 15, Article 2(5). jurisdiction, forum shopping . . . 183 anti-avoidance. programme schedules’ and ‘a significant part of the workforce involved in the pursuit of the television broadcasting activity’ is important if we are to understand fully how a broadcasting company’s structures