Professor Lorna Woods, University of Essex

In 2014, the European Commission created ERGA to help implement the Audiovisual Media Services Directive (AVMSD) and support a unified European market. This built upon the existing High Level Group of Regulatory Authorities, established in 2003, which brought national enforcement bodies together twice a year. The goal was to improve collaboration between these authorities to ensure the AVMSD was applied consistently across Europe. This reflects a broader EU trend of forming networks, sometimes including member states, to promote harmonization. These networks might signal a move away from decentralized enforcement towards a more centralized model. While uncertain, this shift highlights the importance of discussing the roles and influence of such bodies.

The decision establishing ERGA outlines its responsibilities:

(a) To advise and support the Commission in ensuring consistent implementation of the audiovisual media services regulatory framework across all member states.

(b) To assist and advise the Commission on audiovisual media services within its competence. If necessary, the group may consult market stakeholders, consumers, and end-users to gather information for advising the Commission.

(c) To facilitate the sharing of experience and good practices in applying the regulatory framework for audiovisual media services.

(d) To cooperate and provide members with information necessary for applying Directive 2010/13/EU, particularly Articles 2, 3, and 4 (concerning cross-border broadcasting), as outlined in Article 30 of the Directive.

Notably, the 2007 AVMSD did not anticipate ERGA’s creation, and it operates in addition to the directive’s established Contact Committee. This suggests that the Commission found the Contact Committee insufficient for ensuring consistent and effective AVMSD implementation across member states. A 2004 European Parliament resolution already expressed concerns that the Contact Committee comprised mainly representatives from national ministries rather than independent media regulatory authorities.

Some argue that the Contact Committee’s structure hindered cooperation between national regulatory authorities, as they weren’t always involved. This could impact the consistent application of the AVMSD across the EU, raising concerns about enforcement, particularly in cross-border situations, and the risk of an uneven playing field due to differing approaches between member states. Introducing another expert forum also raises questions about the differences and respective roles of ERGA and the Contact Committee, especially with the existing EPRA platform for media regulators, albeit outside the EU framework.

Is this move an attempt to distinguish between effective enforcement (ERGA’s responsibility) and policy development (the role of the more political Contact Committee)? This distinction has been highlighted by ERGA’s Chair. Alternatively, is ERGA perceived as ‘more European’ than the Contact Committee due to its members’ independence from national political agendas? The notion that ERGA’s purpose extends beyond enforcement is supported by an EPRA report describing it as a platform for ‘strategic EU policy-oriented discussions’ intending to ‘adopt common positions or declarations on the implementation of the audiovisual EU regulatory framework’.

The revised AVMSD (Article 30A) reaffirms ERGA, an uncontroversial aspect of the Commission’s proposal that remained unchanged throughout the legislative process. The Commission envisioned ERGA comprising national ‘independent regulatory authorities’ in audiovisual media services, connecting it to new provisions ensuring their independence introduced in Article 30. Conversely, the Contact Committee consists of ‘representatives of the competent authorities of the Member States’ and is chaired by a Commission representative. Besides an unsuccessful attempt by the European Parliament to include four MEPs in the Contact Committee, this structure remained unchanged. Therefore, while the Contact Committee might include representatives from national regulatory authorities, this is not guaranteed for every member state.

The membership difference is crucial: the Commission aimed to ensure the participation of independent regulators in ERGA, not government ministers or civil servants. This removes the Commission’s control (as chair) and relegates it to a participant. This is vital for ensuring ERGA’s independence from both the Commission and member states and commercial interests. While the wording changed slightly during the legislative process to include ’national regulatory authorities and/or bodies,’ potentially reflecting the actual nature of involved institutions, it arguably weakens the link to independent regulators required by Article 30. If this independence fosters a stronger EU focus over national initiatives, this change might attempt to limit the supranational element. This contrasts with the Contact Committee, where national political undercurrents might be present due to potential participation of politicians and civil servants alongside or instead of technical experts.

The Commission’s initial proposal largely mirrored ERGA’s tasks outlined in its 2016 decision, adding the responsibility of providing opinions upon request on issues outlined in Articles 2(5b) (jurisdiction allocation), 6a(3) (co-regulatory systems and EU codes of conduct), 9(2) (self/co-regulation for food and drink high in salt, sugar, or fat), 9(4) (sharing best practices and EU codes of conduct for such food and drink), and any other audiovisual media services matter, particularly concerning the protection of minors and incitement to hatred. This might reflect the Commission’s power under Article 3(1) of the Decision to consult ERGA ‘on any matter relating to audiovisual media,’ as echoed in the AVMSD recitals (recital 37). Given the focus on new governance forms, the Commission envisioned a significant role for ERGA, potentially exceeding mere enforcement. Involvement in jurisdiction and anti-circumvention decisions is important (although the database detailing service providers’ establishment locations is the Commission’s responsibility, contrary to the Parliament’s suggestion in AMD 52 to share this responsibility with ERGA).

These provisions saw changes. The European Parliament’s joint rapporteurs initially believed ERGA should remain consultative without decision-making power, favoring increased competence for the Contact Committee (with a revised constitution including four MEPs). They proposed providing the Contact Committee with relevant information concerning Articles 3 (freedom of reception/derogation procedures), 4 (circumvention provisions), and 7 (accessibility provisions) – the first two are now incorporated into the directive.

The Council also envisioned a more limited role for ERGA than the Commission, though differences existed between member states. Council amendments restricted ERGA to providing ’technical’ advice – the meaning of ’technical’ in this context is unclear. Does it refer to technological matters (unlikely) or advice on practical rule implementation? General policy advice seems outside ERGA’s remit, reflecting the broad division of roles between ERGA and the Contact Committee. The Council’s proposals also removed ERGA’s role in self- and co-regulation mentioned in Article 9. They also limited the Commission’s control over ERGA, as the initial proposal empowered the Commission to adopt ERGA’s rules of procedure. The Council proposed that ERGA should determine its own rules. The 2016 Decision granted ERGA limited ability to raise issues:

‘The chairperson of the group may advise the Commission to consult the group on a specific question.’ (Article 2(2)).

This task is absent from the AVMSD’s list of duties, perhaps indicating ERGA’s lack of a policy-oriented role.

ERGA’s scope seems narrower than the Contact Committee’s. The Contact Committee’s tasks are quite broad. It facilitates effective implementation of the entire AVMSD and addresses ‘any other matters on which exchanges of views are deemed essential’ (Article 29(2)(a) and recital 32a). Overlap with ERGA’s tasks exists, as both are involved in exchanging best practices regarding derogation provisions in Article 3(5). The AVMSD identifies specific areas requiring Contact Committee consultation, such as developing EU codes of conduct (according to subsidiarity and proportionality principles outlined in Article 4a(2) 3rd para)). The Commission can consult the Contact Committee, not ERGA, on developing guidance for calculating market share (Article 13(5a)) and listed events (Article 14(2)). While ERGA may provide opinions upon request, the Contact Committee can offer them independently. Furthermore, it can respond to requests from both the Commission and member states. Its role extends to ’examin[ing] any development arising in the sector on which an exchange of views appears useful’ (Article 29(2)(f)), granting it an agenda-setting function also evident in its discussions on the content of member states’ reports to the Commission on AVMSD implementation (see guidance issued by the Contact Committee).

In conclusion, ERGA is confirmed as a tool for consistent AVMSD enforcement. While a distinction might exist between policy discussions and enforcement coordination, differing views on ERGA’s role persist and might continue after the revised AVMSD comes into effect. As we observe ERGA’s operation and interaction with the Contact Committee, it’s clear that, on the spectrum of pan-EU regulators (from EU agencies to informal groups), ERGA sits closer to the informal end with its narrowly defined, technical advisory role.

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