The EU referendum and the Country of Origin principle (COO) – EU Referendum Analysis 2016

The EU referendum and the Country of Origin principle (COO)

Irini_Katsirea

Dr Irini Katsirea

Studied at the Free University of Berlin, at the University of Leicester (LLM) and at Magdalene College, Cambridge (PhD).

She is Reader in International Media Law at the University of Sheffield. Her research interests are in the areas of EU and Comparative Media Law. She is the author of Public Broadcasting and European Law.

Email: i.katsirea@sheffield.ac.uk

 

EU Referendum Analysis 2016 - section 2

Section 2: Politics

The debate about the EU referendum has been polarised, the Remain camp stressing the risks of Brexit, the Leave camp arguing that the UK would be better off if it reasserted its sovereignty, took control of its borders and stemmed immigration. Each side has been accusing the other of scaremongering, of exaggerating the financial threats associated with a UK departure or the threat of immigration, of EU’s further widening or its development to a super-state. This debate has been unhelpful to voters, as it has failed to explain the nature of the EU as a supranational organisation, its workings and the benefits of being a member. Media policy has hardly featured as a campaign issue. This piece attempts to retrospectively fill this vacuum and to expose some of the fallacies of the case for Brexit – which unhelpfully also underlay the Remain Camp’s soft Euroscepticism – by taking a bird’s eye view of one specific aspect of EU’s audiovisual policy: the country of origin principle (COO).

If sovereignty is at the core of what makes or breaks the UK’s EU membership, one might have expected a principle such as the COO to be anathema for the UK government. A principle that weakens national sovereignty would surely be something to fight against, to dilute, to eradicate. Yet, the exact opposite is the case.

The COO and national sovereignty

The COO is the cornerstone of the Audiovisual Media Services Directive (AVMSD) (former Television without Frontiers Directive), the most important regulatory instrument for the audiovisual sector in Europe, adopted in 1989 as a single market initiative to establish a legal framework for the cross-border transmission of TV programmes. In simple terms the meaning of the COO is that Member States are obliged to ensure the unhindered reception of audiovisual media services, i.e. TV broadcasts and on demand services, lawfully transmitted in their state of origin. They only have a limited possibility to restrict such foreign services when they manifestly, seriously and gravely breach provisions concerning the protection of minors or public order. The COO is a specific manifestation of the very mechanisms that allow persons, goods and services to move freely across the EU. It undeniably encroaches upon the power of the Member to shape their broadcasting orders at will. Some have even exaggeratedly stated that it signifies the end of the broadcasting sovereignty of the Member States. However, one needs to pause and ask: what is the real meaning of this sovereignty in an interconnected world where countries have limited possibilities to contain satellite transmission to their territories and are forever caught in the internet’s global web?

Why does the UK support the COO?

Both the Leave and Remain camps were united in their single-minded insistence on the UK’s national sovereignty, the former seeing departure as a way to strengthen it, the latter wishing to further it by staying in and working with the EU. If sovereignty is at the core of what makes or breaks the UK’s EU membership, one might have expected a principle such as the COO to be anathema for the UK government. A principle that weakens national sovereignty would surely be something to fight against, to dilute, to eradicate. Yet, the exact opposite is the case. The UK has been one of the most vocal proponents of the COO. A quick look at the official UK response to a recent consultation on the AVMSD is telling. The UK government fiercely defended the COO from Member States such as France that wished to transfer the power to regulate broadcasts from the country of transmission to the country of reception, thus allowing Member States to impose their own standards on incoming programmes. The UK’s argument was that the COO is a ‘fundamental and critical precondition for the generation of a Digital Single Market in content’, that it makes broadcasts subject only to ‘the regulatory standards of whichever country the service is based, as opposed to requiring a channel to adhere to 27 slightly different regulatory standards in each country in which it is received’, that it ‘lowers trade barriers by facilitating operation for industry and reducing costs’. In particular, as a result of this principle, ‘the broadcasting market has seen an increase in the number of channels from 47 in 1989 to over 11,000 today, an increase for VoD revenue from 61 million Euros in 2007 to 616 million Euros 2011 (up 45.7%).

A sense of bewilderment is inevitable at this point. Is it really the UK government that extolled the benefits of the digital single market for its economy? The same government that gave in to a populist, high-risk referendum deal, whose destabilising consequences will reverberate for a long time to come? If the COO has been so undeniably beneficial, and if similar mechanisms govern what was the referendum’s bone of contention, the free movement of persons, then perhaps it would have been worth revisiting the contribution all the allegedly hand to mouth living, benefit seeking migrants make to the UK economy. It would have also been worth bearing in mind that the UK has been able to meaningfully influence EU decisionmaking, as it has done by successfully arguing in favour of the retention of the COO principle for the future, an argument that it could only make by being a member, not an outsider.