Cultural Exception, Single Market Objectives and Regulatory Gaming in the EU Audiovisual Media Services Directive: The Adverse Effects of Financial Obligations

Abstract

European policymakers have long sought to strike an appropriate balance between supporting EU-native cultural production and pursuing the objectives of internal market harmonisation. To this end, the 2018 reform of the Audiovisual Media Services Directive (AVMSD) introduced a set of measures for on-demand audiovisual media (VOD) providers, including catalogue quotas, prominence requirements and financial contributions. However, the coherence and effectiveness of these provisions remain highly contested. In particular, national implementations of financial obligations have produced adverse effects. They have intensified fragmentation among Member States and enabled them to prioritise domestic works over non-national European productions. Such fragmentation of the European audiovisual market will also preserve a heterogeneous ecosystem of producers, making it exceedingly difficult for a local service to scale and evolve into a pan-European platform. Consequently, despite the ambitions of EU policymakers, the emergence of European champions capable of competing with foreign players on an equal footing is likely to remain elusive. Moreover, the AVMSD rules on financial obligations create opportunities for regulatory gaming, insofar as Member States use the policy goal of fostering cultural and linguistic diversity as a convenient pretext for subsidising their local economies.