On 15 October 2020, Members of the European Parliament (MEPs) Carles Puigdemont i Casamajó, Clara Ponsatí Obiols and Antoni Comín i Oliveres of the Non-attached Members posed a written parliamentary question to the European Commission:
“According to Article 13 of Directive 2018/1808, ‘Member States shall ensure that media service providers of on-demand audiovisual media services under their jurisdiction secure at least a 30 % share of European works in their catalogues and ensure prominence of those works’.
However, some Member States, among them Spain, have not transposed it yet. According to this piece published by El País, in Spain the process is so delayed that it is not even possible to calculate when the Directive will be transposed. Meanwhile, some streaming companies like Filmin already secure a 60 % share of European works in their catalogues, while others, such as Netflix, do not even release their data.
1. Is the Commission aware of this delay in the transposition of Directive 2018/1808?
2. Would the Commission consider it compatible with the Directive and with Article 2 of the Treaties if, in Member States like Spain with several co-official languages, part of the 30 % share of European works had to be produced in minority languages such as Basque, Catalan or Galician?”
On 20 January 2021, Internal Market Commissioner Thierry Breton responded on behalf of the European Commission stating: “The Commission is aware of the delay in the transposition of Directive 2018/1808/EU in Spain. The Spanish authorities have informed the Commission that the COVID-19 pandemic has had a significant impact on their administrative procedures and that the legislative procedure is expected to be completed in the first quarter of 2021.
Pending the transposition of the directive, the Commission will proceed with the usual enforcement steps. In relation to harmonised areas, such as the share of European works in video on demand (VOD) catalogues, the directive is based on the principle of country of origin.
This means that Spanish legislation transposing these rules would apply to media service providers under its jurisdiction, and would not impact VODs that are under the jurisdiction and supervision of other Member States.
The definition of European works can be found in Article 1(1)(n) of Directive 2018/1808/EU, amending Directive 2010/13/EU. As stated in Recital 32 of the latter, ‘European works should be defined without prejudice to the possibility of Member States laying down a more detailed definition as regards media service providers under their jurisdiction, in compliance with Union law and account being taken of the objectives of this directive’.
Furthermore, Recital 78 of the same Directive states that ‘In order to allow for an active policy in favour of a specific language, Member States remain free to lay down more detailed or stricter rules in particular on the basis of language criteria, as long as those rules are in conformity with Union law, and in particular are not applicable to the retransmission of broadcasts originating in other Member States’.”
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