On 10 January 2008, the Commission announced plans to revise the Broadcasting Communication, bringing it in line with its decision practice (European Commission, 2008h). In fact, the Commission mainly used its decision on the funding of German public broadcasters ARD and ZDF (European Commission, 2007e) as a 'blueprint' for the new parts of the Broadcasting Communication (European Commission, 2009b). In particular, as can be derived from the public statement by Commissioner Kroes below, the Commission sticked to the idea that not all new media services can be validly considered a part of the PSM remit.
That means being honest when answering whether all emerging media services serve the social, democratic and cultural needs of a society. When you think of the dating clubs and video games that sometimes proliferate - you have to wonder what purpose they really serve. But the same question can be raised regarding pay per view offers of premium contents which are normally provided by commercial broadcasters. To be able to answer these questions, we need better definitions.
The European Broadcasting Union (EBU, 2008: 2) criticised the Commission's approach, saying that 'it would be dangerous to create general rules on the basis of individual commitments from Member States'. The EBU's criticism was valid. First, the diversity of cases dealt with, touching upon debt restructuring schemes, the launch of new thematic channels, the definition of the remit and so on, makes it very difficult to discern one coherent practice. As regards the German case, in particular, this concerned many different elements of the Broadcasting Communication, it was characterised by fierce disagreement between Lander governments and a lot of commitments from the Lander went beyond what was required to comply with state aid law. So the case could hardly be considered representative for other cases. Second, the Commission suggested that its decision practice thus far, based on the 2001 Broadcasting Communication, could be considered in part as case law, having a precedential value. However, this is certainly not the case as the communication is binding only the Commission. Moreover, state aid decisions should be considered bilateral contracts between the Commission and the member state concerned. In that sense, it would be a bridge too far to bind all EU member states by the commitments made by one member state in a very context-specific procedure.
Member states were not keen to consent to a revision of the Broadcasting Communication and opposed many of the Commission's initial proposals. And even though the Commission did not need the consent of member states for the adoption of a revised communication, it was not willing to deepen opposition between its services and member states further. Eventually, both parties reached an agreement on the main changes, which did not go as far as those initially proposed. First, the principle of public broadcasters limiting reserves accumulation (in order to prevent them from (ab)using these reserves to, for example, outbid competitors for sports rights) to 10 percent of their annual revenues was included in the revised communication. Second, more emphasis was put on a clearer definition of the remit. Third, and most importantly, the ex ante evaluation for new media services became a part of the Broadcasting Communication.
Although many critical remarks can and have been made with regard to the revision process, it can be expected that the 2009
communication - comparable to other soft law instruments - will increase the time-effectiveness, legal certainty and transparency of the Commission's state aid assessment procedures. It will also most likely trigger new discussions, diverging interpretations and disputes as well.