The introduction of an ex ante evaluation for new media services: Is Europe asking for it, or does public service broadcasting need it?

In a digital age, national legislators face difficulties in adapting the regulatory framework within which public broadcasters deliver services to the wider audience. Often, rules are still orientated towards the traditional delivery of radio and television programmes. The importance of new media and innovation is mentioned, but not thoroughly dealt with. Policy-makers stick to the superficial adaptation of legislation and fail to fundamentally reconsider the case for public service broadcasting. This has created a legal vacuum, which is increasingly tackled by the European Commission. The latter urges Member States to set standards for the expansion of public broadcasters into new media markets and has, in light thereof, proposed to introduce an ex ante test for the evaluation of the public value and market impact of new media services of public broadcasters. The question that is at the core of this article is not necessarily whether an ex ante test restores competition, which is the intention of the Commission's state aid policy, but whether a test can add to the rethinking of broadcasting policies in a manner re-orientated to public service media. The implementation of an ex ante test in Germany and Flanders is analysed. The analysis reveals that both the legislative and practical implementation of an ex ante test is a difficult exercise. Nevertheless, research results indicate that an ex ante test can be a useful instrument to evaluate in a flexible and adaptive way whether certain services fit within the public service remit.