EUROPEAN UNION COMPETENCIES IN RESPECT OF MEDIA PLURALISM AND MEDIA FREEDOM
EUROPEAN UNION COMPETENCIES IN RESPECT OF MEDIA PLURALISM AND MEDIA FREEDOM Possible legal instruments to tackle media pluralism and freedom Elda Brogi, CMPF 29 October 2012, EUI, Villa la Fonte
State of the art (1)-the Treaties do not confer an explicit competenceto the EU on “media pluralism and media freedom”-but the EU has not been “neutral” on the issue ofmedia pluralism and media freedom-the debate on EU competencies with regard tomedia pluralism and media freedom is a longdebate which is still on-going.
State of the art (2)-the 2012 strategy of Vice-President Neelie Kroesto establish different policy and research groups,namely, the Centre for Media Pluralism and MediaFreedom, the EU Futures Media Forum and theHigh Level Group on Media Freedom andPluralism, to discuss and report on the state of thedebate and on what can be done.- “bottom-up” initiatives on media pluralism
State of the art (3)-media pluralism is a principle that can operateand be implemented at various levels in the EUorder-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 freedomand 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 ofthe 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 theMember States when they are implementing EU law (art. 51)
Article 11 of the Charter and article 10 of theECHR: Media pluralism as a general principle ofTHE EU order (2)Article 52 (3) of the Charter affirms that:“In so far as this Charter contains rights whichcorrespond to rights guaranteed by theConvention for the Protection of Human Rightsand Fundamental Freedoms, the meaning andscope of those rights shall be the same as thoselaid down by the said Convention. This provisionshall not prevent Union law providing moreextensive 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 theConvention for the Protection of Human Rights: “The Unionshall accede to the European Convention for the Protection ofHuman Rights and Fundamental Freedoms.”-fundamental rights, as guaranteed by the ECHR and as theyresult from the constitutional traditions common to theMember States, are to constitute general principles of the lawof 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 anormative corpus that has already had, and will potentiallyhave, a role in the interpretation and application ofEuropean law.-The two European Courts, the European Court of Justiceof the European Union and the European Court for HumanRights, for instance, can play an important role in thedefinition and in the application of common Europeanprinciples starting at “case level”.-22 October 2009, Kabel Deutschland (before Lisbon)
●Pluralism and internal market harmonisation:ownership (1) Article 26 TFEU – internal market Article 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.
●Pluralism and internal market harmonisation:ownership (2) -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 (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 ofrelevant independent National RegulatoryAuthorities (NRAs).-comparison with the Electronic CommunicationsRegulatory Framework, which regulates issueswhich are closely related to those in the AVMSDirective: all relevant national regulatory authoritiesare requested to comply with independencerequirements.
The implementation of AVMS and the role of ● NRAs (2)--The AVMS Directive does not introduce any specificobligation for the Member States nor does it provideany element about the structure, functioning or role ofthose national bodies or about the relationship amongthem.-in an era of convergence, it could be reasonable toconsider the establishment of the same institutionalrequirements both for electronic communications andAVMS
●The European Agency on Human Rights (or another qualified body) soft law standard- setting and monitoring-another potential European level of intervention on pluralismcould be through the Fundamental Rights Agency (FRA)-another qualified body, which should be mandated to monitorMember States and propose common standards, basing its workon the ample case law of the the European Court of HumanRights and the European Convention.
Conclusions-EU competences with regard to media pluralismappear scattered in the European legal landscape.-the European Union has few hard and soft lawinstruments to promote and assure mediapluralism and freedom in Europe-given the paramount importance of thedemocratic principles to be promoted, greaterclarity and certainty is needed with regard to EUcompetences