The AVMSD is based on the principle of the country of origin, according to which broadcasters are subject solely to the rules of the Member State where they are established, including when they broadcast to other EU countries. The AVMSD does not prohibit alcohol advertising, but allows Member States to apply stricter rules, including a full ban, on broadcasters under their jurisdiction. Such a ban exists in Sweden.
In order to impose such a ban on the UK broadcasters, Sweden should have demonstrated, under the specific procedure contained in Article 4 of the AVMS directive, that the broadcasters in question established themselves in the UK in order to circumvent such rules. The burden of proof lies with the Member State and the Commission found in this case that Sweden failed to prove circumvention on the part of the two broadcasters.
This is the first time that the Commission decides on the application of Article 4 of the AVMSD. The decision highlights the importance of the principle of the country of origin as a pillar of the internal market in the audiovisual media sector.
The Commission's proposal for the revision of the AVMSD of 25 May 2016 maintains the country of origin principle as the cornerstone of the Directive and the main elements of the Article 4 procedure. The Commission's proposal is currently being negotiated by the Council and the European Parliament in the so-called trilogue meetings with the European Commission acting as honest broker.