Investment Obligations and Levies on VOD Media Service Providers and Cultural Policies of Member States

Digital video streaming platforms that provide on-demand services are subject to financial contributions stemming from media policy regulations in different countries, including the majority of EU Member States. In particular, such financial obligations include direct investments in European media works or indirect levies for national film funds. In 2018, the European Union revised the Audiovisual Media Services Directive, extending the scope of the financial obligations to cover not only the domestic media service providers established in the country that requires financial contribution but also foreign media service providers targeting the audience in this state. The provision was transposed (or is considered to be transposed) in the domestic legislation of at least 14 EU Member States. Yet, the technical design of the respective domestic provisions significantly varies, which can lead to distortive effects on investments and trade in the European Union, including due to the risk of double imposition of financial obligations by several Member States on the same income. In this article, the authors analyse tax-related issues regarding financial obligations, namely how certain well-established cross-border tax mechanisms can enhance the legislative AVMSD framework to achieve a better balance between the societal policy goal of promoting European culture, on one hand, and respecting economic rights in the implementation of the financial obligations for audiovisual media service providers under article 13(2) of the AVMSD on the other. From an international tax perspective, the authors analyse whether financial obligations, in particular the levy for national film funds, can be regarded as an earmarked tax on business income, its compatibility with double tax treaties, as well as whether it is covered by the commitment of the OECD Inclusive Framework Members to remove the unilateral measures similar to digital services taxes (DSTs) for the purposes of OECD Pillar One.