EUROPEAN UNION COMPETENCIES IN RESPECT OF MEDIA PLURALISM AND MEDIA FREEDOM

Possible legal instruments to tackle media pluralism and freedom

Elda Brogi, CMPF29 October 2012, EUI, Villa la Fonte

-the Treaties do not confer an explicit competence to the EU on “media pluralism and media freedom”

-but the EU has not been “neutral” on the issue of media pluralism and media freedom

-the debate on EU competencies with regard to media pluralism and media freedom is a long debate which is still on-going.

State of the art (1)

State of the art (2)-the 2012 strategy of Vice-President Neelie Kroes to establish different policy and research groups, namely, the Centre for Media Pluralism and Media Freedom, the EU Futures Media Forum and the High Level Group on Media Freedom and Pluralism, to discuss and report on the state of the debate and on what can be done.- “bottom-up” initiatives on media pluralism

State of the art (3)

-media pluralism is a principle that can operate and be implemented at various levels in the EU order

-a list of potential instruments

Article 11 of the Charter and article 10 of the ECHR: Media pluralism as a general principle of the EU order (1)

-Article 11, Paragraph 2 Charter explicitly states that: “The freedom and pluralism of the media shall be respected”.

-art. 6 TEU says the Charter has same legal value as the Treaties

-the provisions of the Charter are not to extend the competences of the Union as defined in the Treaties

-the Charter is addressed both to the EU institutions, bodies, offices, agencies, with due regard to the subsidiarity principle, and to the Member States when they are implementing EU law (art. 51)

Article 11 of the Charter and article 10 of the ECHR: Media pluralism as a general principle of THE EU order (2)

Article 52 (3) of the Charter affirms that:“In so far as this Charter contains rights which correspond to rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, the meaning and scope of those rights shall be the same as those laid down by the said Convention. This provision shall not prevent Union law providing more extensive protection.”

Article 11 of the Charter and article 10 of the ECHR: Media pluralism as a general principle of the EU order (3)

-Another bill of rights acknowledged by Article 6 TEU is the Convention for the Protection of Human Rights: “The Union shall accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms.”

-fundamental rights, as guaranteed by the ECHR and as they result from the constitutional traditions common to the Member States, are to constitute general principles of the law of the European Union

Article 11 of the Charter and article 10 of the ECHR: Media pluralism as a general principle of THE EU order (4)

-Charter, ECHR and constitutional traditions of MS form a normative corpus that has already had, and will potentially have, a role in the interpretation and application of European law.

-The two European Courts, the European Court of Justice of the European Union and the European Court for Human Rights, for instance, can play an important role in the definition and in the application of common European principles starting at “case level”.

-22 October 2009, Kabel Deutschland (before Lisbon)

●Competition and cultural aspects: Article 167.4 TFEU

- article 167.4 TFEU

(Bania's presentation)

●Pluralism and internal market harmonisation: ownership (1)

Article 26 TFEU – internal marketArticle 114 TFEU – internal market harmonization

-The European Parliament and the Council shall ... adopt the measures for the approximation of the provisions laid down by law, regulation or administrative action in Member States which have as their object the establishment and functioning of the internal market

-the European Union can exercise its competences whenever the proper functioning of the internal market is negatively influenced by the existence and application of diverging national provisions in any sector which is not expressly excluded from the founding Treaties.

-the main regulatory instrument that the Member States use to protect media pluralism in the media market is legislation on media ownership that usually prevents and sanctions the creation of a dominant position in the market

-different parameters to define positions prejudicial to pluralism (the number of channels controlled, resources, audience share, etc.,)

-All these differences can hamper the functioning of the internal market: their existence may be detrimental to the free movement of services or the right of establishment, since operators may find it difficult to establish or to provide services in another Member State where dominant positions are in place (see European Citizen initiative)

-the same applies for media ownership transparency

●Pluralism and internal market harmonisation: ownership (2)

●Pluralism and internal market harmonisation: ownership (3)

-legal basis: Arts. 26, 50 and 114 of the Treaty on the Functioning of the European Union

-in shaping these new provisions, the Union is required to uphold the highest level of protection to fundamental rights as guaranteed by the EU legal order, in particular the freedom of information as enshrined in Article 11 of the Charter

●The implementation of AVMS and the role of NRAs (1)

AVMSD does not foresee the establishment of relevant independent National Regulatory Authorities (NRAs). -comparison with the Electronic Communications Regulatory Framework, which regulates issues which are closely related to those in the AVMS Directive: all relevant national regulatory authorities are requested to comply with independence requirements.

●The implementation of AVMS and the role of NRAs (2)

--The AVMS Directive does not introduce any specific obligation for the Member States nor does it provide any element about the structure, functioning or role of those national bodies or about the relationship among them. -in an era of convergence, it could be reasonable to consider the establishment of the same institutional requirements both for electronic communications and AVMS

●The European Agency on Human Rights (or another qualified body) soft law standard-setting and monitoring

-another potential European level of intervention on pluralism could be through the Fundamental Rights Agency (FRA)

-another qualified body, which should be mandated to monitor Member States and propose common standards, basing its work on the ample case law of the the European Court of Human Rights and the European Convention.

Conclusions-EU competences with regard to media pluralism appear scattered in the European legal landscape.

-the European Union has few hard and soft law instruments to promote and assure media pluralism and freedom in Europe

-given the paramount importance of the democratic principles to be promoted, greater clarity and certainty is needed with regard to EU competences