International Trade in Television Programming and GATT: An Analysis of Why the European Community's Local Program Requirement Violates the General Agreement on Tariffs and Trade
International Trade in Television Programming and GATT: An Analysis of Why the European Community's Local Program Requirement Violates the General Agreement on Tariffs and Trade
Clint N. Smitht 0
0 t J.D. Candidate, Boalt Hall School of Law, University of California, 1992; B.A. Pomona College, 1989. The author would like to thank Holly Hammonds and Daniel Price of the United States Trade Representative's legal staff, Professor David Caron, James H. Burke, and the very capable editors of INTENATIONAL TAX AND BUSINEss LAWYER for their assistance , USA
The EuropeanCommunity adopteda directive which requires thatat least fifty percent of all Community broadcasttime be devoted to programsof European origin. The statedpurpose of the program quotas is the protection of European culture. As a key supplier of television programs in the international market, the United States is particularlyaffected by this restriction. The author argues that the United States should challenge the European Community program quota on the grounds that it is a violation of the GeneralAgreement on Tariffs and Trade.
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INTRODUCTION
The European Council's' directive of October 3, 1989 requires that
Member States devote more than half of their television broadcast time to
entertainment programs produced in Europe.2 The European Community's 3
stated reason for the requirement is to preserve European culture.
Hollywood producers and United States trade officials have complained,
however, that the requirement is instead a protectionist measure intended to
benefit the European film and television production industry. The United
States alleges that the Directive violates the General Agreement on Tariffs
and Trade ("General Agreement"), 4 while the European Community
maintains that there is no violation.
The GATT dispute over the legality of the European Community's local
program quota exposes the broader tension between the international goal of
free exchange of information and the national need for sovereignty over mass
communications policy. International treaties and agreements signed by both
the United States and the European Community provide for free
communica1. The European Council, in which each Member State is represented by one minister
from its national government, is the legislative authority of the European Community. See
TREATY ESTABLISHING THE. EUROPEAN ECONOMIC COMMUNITY [EEC TREATY] arts. 145,
146. The European Parliament, unlike the Council, does not pass legislation but merely reviews
and comments on draft legislation. Id. art. 137. The European Commission formulates and
recommends legislation, and also takes legal action to ensure that Community institutions,
Member States, and individuals comply with European Community law. Id. art. 155. For discussions
of the institutions in theory and practice, see DAVID FREESTONE & SCOTT DAVIDSON, THE
INSTITUTIONAL FRAMEWORK OF THE EUROPEAN COMMUNITIES (1988); TREVOR C.
HARTLEY, THE FOUNDATIONS Of EUROPEAN COMMUNITY LAW (1981); ERIC STEIN ET AL.,
EUROPEAN COMMUNITY LAW AND INSTITUTIONS IN PERSPECTIVE (1976).
2. Council Directive 89/552 on the Coordination of Certain Provisions Laid Down by
Law, Regulation or Administrative Action in Member States Concerning the Pursuit of
Television Broadcasting Activities 89552, 1989 O.J. (L 298) 23 [hereinafter Directive]. For thorough
overviews of the Directive's legislative history and the United States' response, see Paul
Presburger & Michael R. Tyler, Television Without Frontiers:Opportunityand Debate Createdby
the New European Community Directive, 13 HASTINGS INT'L & COMP. L. REV. 495 (1990). See
also Kelly L. Wilkins, Comment, Television Without Frontiers:An EEC BroadcastPremiere, 14
B.C. INT'L & COMP. L. REV. 195 (1991).
3. "European Community," composed of the European Economic Community ("EEC"),
the coal and steel community, and the atomic energy community, refers to the rules and
institutions established by the EEC Treaty and its subsequent revisions. The term "European
Community" now commonly refers to all three specific communities, and reflects the impact of the Single
European Act, which extended the European Community's authority beyond economic and
energy policy, to issues of foreign and social policy. See Single European Act 1987 O.J. (L 169) 1, 9,
13.
4. General Agreement on Tariffs and Trade, Oct. 30, 1947, 61(
5
) Stat. Al, 55 U.N.T.S.
194 [hereinafter General Agreement]. "General Agreement" will refer to the original treaty and
the subsequent series of multilateral agreements amending it which set out rules for international
trade. "GATT" will refer to the organization which applies the General Agreement rules in the
settlement of international trade disputes. "Contracting Party" will refer to a state or trading
bloc that is a party to the General Agreement. "GATT panel" will refer to a dispute resolution
panel established by request of a Contracting Party to determine whether there has been a
violation of the General Agr (...truncated)