Once the 2001 communication was firmly established, the number of decisions issued by the Commission increased exponentially. Problematic cases concerning public broadcasters in France, Italy, Spain and Portugal were finally solved and some new complaints also quickly resulted in a decision. The Commission essentially came to a 'decisional practice', which, importantly, also makes the tackling of new and emerging complaints easier.
The cases reviewed can be divided into four categories: (a) cases dealing with ad hoc measures such as debt restructuring schemes and loans; (b) cases dealing with single services such as thematic channels and theme parks; (c) cases dealing with the structural and financial reform of broadcasters; and (d) cases dealing with the 'whole package', that is, the scope of activities, control and funding of PSM. On the basis of the decisions issued in all these cases, four Commission action points can be identified.
First, the public service remit needs to be more clearly defined, especially in the new media era. It already became apparent in the Phoenix/Kinderkanal, BBC News 24 and BBC Digital Curriculum cases that for the Commission, some new activities of public broadcasters may not be SGEI but commercial services. This cautious line was followed in all 'whole package' cases concerning the funding of public broadcasters in Germany, the Netherlands, Belgium (Flanders), Austria and Ireland. In these cases, the Commission tried to stay within its competences, not hiding, however, its fear for a 'mission creep'; that is, the possibility of public broadcasters expanding their activities to more and more markets on the basis of vague democratic, social and cultural policy objectives (Donders and Pauwels, 2010). Therefore a clear demarcation between public and commercial services is required (see European Commission, 2007e: para. 75, 2008f: para. 89, 2008g: para. 166, 2009b: para. 138, 2010e: para. 156). This does not mean that the Commission does not accept a broad mission, leaving room for independent programme policies. The importance of PSM for society justifies a qualitative definition of the remit, 'entrusting a given broadcaster with the obligation to provide a wide range of programming and a balanced and varied broadcasting offer' (European Commission, 2009c: para. 139; see also European Commission, 2008f: para. 86, 2008g: para. 167).
Second, and related to the former action point, the Commission asks for ex ante tests for new media services with a view to ensuring that new services, offered by public broadcasters, are not automatically covered by the remit. The demand for such tests has been inspired by the British 'Public Value Test', which applies to significantly new services (Donders and Raats, 2012), and consists of two parts: a public value assessment and a market impact assessment. The first part and the overall balancing of the two parts are the responsibility of the BBC Trust (which controls all BBC behaviours); and the market impact assessment is performed by Ofcom (the British telecommunications and media regulator). While the Commission makes explicit that 'the public service remit may also include services which are not programmes in the conventional meaning' (European Commission, 2009c: para. 140), the mere existence of a close association between online activities and existing radio and television programmes is in itself not evidence of a clear-cut definition of the remit (ibid.: para. 143). Some sort of insurance is therefore necessary to prevent mission creep. Key is that public broadcasters get prior government approval to deliver a new service after an independent evaluation of the proposed new service has taken place. As, for example, stated in the case of the Flemish public broadcaster, VRT: 'without any prior evaluation and explicit entrustment of the Flemish government, the VRT is not allowed to deliver services or perform activities that are not covered by the management contract' (European Commission, 2008f: para. 239 - translated from Dutch).
Even though decisional practice is quite diverse in terms of the concrete implementation of an ex ante test in specific PSM regimes, all member states that agreed to a test have to:
- • define what services are new and, hence, require a test;
- • establish an ex ante evaluation for these new services;
- • submit these services to an objective and preferably independent evaluation of their public value and likely market impact;
- • make sure that third parties have a voice in the procedure with sufficient time to comment on the proposed new services;
- • publish the results of the test; and
- • base their acceptance or refusal of the new services on the outcome of the test (although the advice of an independent body is not binding) (European Commission, 2007e: para. 328ff, 2008f: para. 141ff, 2008g: para. 230, 2009b: para. 198ff, 2010e: para. 234ff).
Third, the Commission has consistently stressed the need for an independent monitoring and evaluation of public broadcasters' performance. It has, however, implemented this principle quite differently in its decisional practice. In its investigation of the German public broadcasting system, the Commission accepted that supervisory functions are given to the Broadcasting Councils (European Commission, 2007e), which form part of the organisational structure of the public broadcasters. It demanded completely external controlling bodies in Ireland, Flanders and Austria, though (see European Commission, 2008f: para. 151, 2009c: para. 210).
Fourth, in most of its decisions the Commission has required proportional public funding and transparent financial and organisation structures. Proportionality refers to the necessity to compensate only for the net costs incurred because of the public service obligations. In order to allow for such a calculation as well as control thereof, a separation of public and commercial revenues and full transparency of accounts are necessary, in line with more generic European provisions on the transparency of public institutions. All public broadcasters have to comply with these requirements. Their implementation, nevertheless, has been particularly challenging for public broadcasters in some EU countries. The Commission has asked for extensive changes of the financial and structural organisation of public broadcasters in Spain, Italy, Portugal and also France (see, among others, European Commission, 2005d: paras 67, 70, 2005e: paras. 58-59). Regarding the Portuguese public broadcaster RTP, in particular, even though the Commission was of the opinion that the broadcaster was in fact under-compensated, it did raise questions as to whether enough safeguards were in place to prevent over-compensation, stating that 'there are currently no provisions explicitly limiting the State compensation to the net cost of the public service mission' (European Commission, 2006b: para. 100). A similar conclusion was reached in the decision on the funding of France Television (European Commission, 2005f: para. 60). Significant difficulties have generally been encountered in the Mediterranean countries, where public broadcasters are traditionally highly politicised, bureaucratic, not transparent and often inefficient (Papathanassopoulos, 2007). Whereas, on the downside, procedures involving these countries took on average over eight years to be completed, on the upside, they forced these rigid systems to adapt to principles of good governance (for more information about changes in these PSM systems, see, for example, Antonio Santos, 2007; Caffarel and Garcia de Castro, 2006; Perez Gomes, 2006).
Some sort of practice, providing guidance to both member states and public broadcasters, thus emerged after the adoption of the 2001 Broadcasting Communication. A number of aspects of this practice were criticised; others, however, contributed to more performant and transparent PSM systems across Europe.