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Legal overview


                  Paula Gori, CMPF
 29 October 2012, EUI, Villa la Fonte
Is there space for intervention?
• June 2012. Vice-President N.Kroes affirmed that: “Currently
  the EU does not have the legal competence to act in this
  area [media pluralism] as part of its normal business. In
  practice, our role [of the EC] involves naming and shaming
  countries ad hoc, as issues arise.”
• Art.5(3) TEU “Under the principle of subsidiarity, in areas
  which do not fall within its exclusive competence, the Union
  shall act only if and in so far as the objectives of the proposed
  action cannot be sufficiently achieved by the Member States,
  either at central level or at regional and local level, but can
  rather, by reason of the scale or effects of the proposed
  action, be better achieved at Union level.”
The main steps / 1
•  1974. Sacchi Case: “…a television signal must, by its nature, be regarded as
   provision of services”
• 1980. Debauve Case: confirmed this principle in a cross-border broadcasting
   case and affirmed that discrimination by MSs against a broadcasting signal
   because of national origin is illegal.
• 1984.Green Paper on the Establishment of a Common Market in Broadcasting,
   especially by Satellite and Cable and 1987. Green Paper on the development
   of the Common Market for Telecommunication Services
• 1989. Television Without Frontiers Directive (TWFD): First harmonisation
   instrument for the free movement of TV services. It establishes the country of
   origin principle and refers only to traditional linear broadcasting services.
     It sets some minimum standards like the protection of minors and public
order, consumer protection, the promotion of European works, the right of
reply
    .
The main steps / 2
• 1996. Commission v. United Kingdom: broadcasters come under the
  jurisdiction of the Member State in which they are established
• 1997. VT4 Ltd v. Vlaamse Gemeenschap and the revised version of the
  TWFD: in the event that a broadcaster is established in more than one
  MS, it falls under the jurisdiction of the MS in which it has its centre of
  activities (where programming decisions are taken)
• 1999. Communication on the Future of European Regulatory
  Audiovisual Policy: “…regulatory policy in the sector is aimed at
  safeguarding certain public interests, such as cultural and linguistic
  diversity, the protection of minors and consumer protection…”
• 2005. Liverpool Conference : media pluralism still is responsibility of
  MS
• 2007. Audiovisual Media Services Directive (AVMSD)
The AVMS Directive / 1
    Rapid changes caused by the technological developments
    Same legal basis as for the TWFD, namely the free movement of services
    The scope of application has been broadened to non-linear services : it covers all services
    with audiovisual content irrespective of the technology used to deliver the content.
      - Linear services: Programmes provided by a media service provider at a scheduled time and
watched simultaneously by viewers
      - Non-linear services: Programmes users select from a catalogue offered by the media
service provider, to watch at their own convenience.

    All media services have to respect a basic tier of obligations in some specific areas:
    identification of media services providers, prohibition of incitement to hatred; accessibility
    for people with disabilities; qualitative requirements for commercial communications;
    sponsoring and product placement.
    However: two – tier system: stricter regulation for linear services
The AVMS Directive / 2
“Audiovisual media services are as much cultural services as they are economic services. Their
growing importance for societies, democracy — in particular by ensuring freedom of
information, diversity of opinion and media pluralism — education and culture justifies the
application of specific rules to these services” (Recital 5)
Art.5. Introduces some transparency elements stating that the media service providers shall
make easily, directly and permanently accessible to the recipients some information such as:
the name of the service provider, the geographical address, its details (including email and
website), the competent regulatory or supervisory bodies.

Recital 10: “…Bearing in mind the importance of a level playing-field and a true European
market for audiovisual media services, the basic principles of the internal market, such as free
competition and equal treatment, should be respected in order to ensure transparency and
predictability in markets for audiovisual media services and to achieve low barriers to entry.”
Recital 12: “…that regulatory policy in that sector has to safeguard certain public interests,
such as cultural diversity, the right to information, media pluralism, the protection of minors
and consumer protection, and to enhance public awareness and media literacy, now and in
the future.”
Public Service Broadcasting / 1
Instrument to safeguard media pluralism and freedom – 2000
Communication of the EC on Services of General Interest in Europe
“…the broadcasting sector has, since its inception, been subject to
specific regulation in the general interest. This regulation is based
on common values such as freedom of expression and the right to
reply, pluralism, protection of copyright, promotion of cultural and
linguistic diversity, protection of minors and of human dignity,
consumer protection…”
PSB is seen as an instrument to ensure the coverage of a number of
areas and the satisfaction of needs that private operators would not
necessarily fulfill to the optimal extent. (COM 2001/C 320/04)
Public Service Broadcasting / 2
As a service of general interest it is covered by Article 106(2)
TFEU as interpreted according to the Amsterdam Protocol on
Public Service Broadcasting (1997): “… the provisions of the
Treaty establishing the European Community shall be without
prejudice to the competence of Member States to provide for the
funding of public service broadcasters insofar as such funding is
granted to broadcasting organisations for the fulfilment of the
public service remit as conferred, defined and organised by MS,
and insofar such funding does not affect trading conditions and
competition in the Community to an extent which would be
contrary to the common interest, while the realisation of that
public service shall be taken into account”.
Public Service Broadcasting / 3
2 principal EC Communications
(2001/C320/04 and 2009/C 257/01): set of
guidelines and rules followed by the EC when
it comes to decide state-aid cases in the PSBs
domain.
The control on PSBs by independent and
external bodies is of high importance for the
safeguard of pluralism (abuse)
Internal Market
Within the EU: different national legislations regulating
the media       an EU level is missing.
This is not efficient in the light of the free movement of
goods and services
Lack of harmonisation: can harm the functioning of the
internal market
Moreover: consequences on the non-discrimination
principle, as all citizens have the right to receive
information irrespective of frontiers.
Fundamental Rights
• Article F.2 of the Treaty of Maastricht (1992):
  The Union shall respect fundamental rights, as guaranteed
  by the European Convention for the Protection of Human
  Rights and Fundamental Freedoms signed in Rome on 4
  November 1950 and as they result from the constitutional
  traditions common to MSs, as general principles of
  Community law.
• 2002: Charter of Fundamental Rights of the EU
• 2009: Treaty of Lisbon: introduced the Charter into EU
  primary law
Article 11 of the Charter/1
• (1) Everyone has the right to freedom of
  expression. This right shall include freedom to
  hold opinions and to receive and impart
  information and ideas without interference by
  public authority and regardless of frontiers.
• (2) The freedom and pluralism of the media
  shall be respected.
Article 11 of the Charter/2
Art. 11 has to be combined with Art. 51
(subsidiarity principle) Art. 52 (conditions for
limitations) and Art. 53: Nothing in this Charter shall be
interpreted as restricting or adversely affecting human rights
and fundamental freedoms as recognised, in their respective
fields of application, by Union law and international law and
by international agreements to which the Union, the
Community or all the Member States are part, including the
European Convention for the Protection of Human Rights and
Fundamental Freedoms, and by the Member States’
constitutions.
Article 10 of the ECHR
• 1. Everyone has the right to freedom of expression. This right shall include
  freedom to hold opinions and to receive and impart information and ideas
  without interference by public authority and regardless of frontiers. This
  Article shall not prevent States from requiring the licensing of
  broadcasting, television or cinema enterprises.
• 2. The exercise of these freedoms, since it carries with it duties and
  responsibilities, may be subject to such formalities, conditions, restrictions
  or penalties as are prescribed by law and are necessary in a democratic
  society, in the interests of national security, territorial integrity or public
  safety, for the prevention of disorder or crime, for the protection of health
  or morals, for the protection of the reputation or rights of others, for
  preventing the disclosure of information received in confidence, or for
  maintaining the authority and impartiality of the judiciary.
ECHR
•   Committee of Ministers
•   Parliamentary Assembly
•   Committees of Experts
•   ECtHR
                  This corpus of activities is a point of reference at a
                  national, European and international level – Although
                  most part is not legally binding (resolutions) it can be
                  relevant for the interpretations of the ECHR as it is a
                  direct manifestation of the practice of MSs
                  (Mastroianni)
                  The ECJ and the Commission repeatedly refer to such
                  corpus.
The Telecommunications Package/1
• Electronic communications networks: resource through
  which content is delivered
• 2002- Electronic Communications Regulatory Framework
  A General Framework Directive introducing a European
  framework for electronic communications networks and
  services
                        +
  4 more specific directives: Authorisation; Access; Universal
  Service; Privacy and Electronic Communications
The Telecommunications Package/2
• Scope (Art.1 Framework Directive) :
This Directive establishes a harmonised framework
for the regulation of electronic communications
services, electronic communications networks,
associated facilities and associated services. It lays
down tasks of national regulatory authorities and
establishes a set of procedures to ensure the
harmonised application of the regulatory
framework throughout the Community.
The Telecommunications Package/3
• Art.8 (1) Framework Directive: “…National regulatory authorities
  may contribute within their competencies to ensuring the
  implementation of policies aimed at the promotion of cultural and
  linguistic diversity, as well as media pluralism.”

• Recital 10 Access Directive: “Competition rules alone may not be
  sufficient to ensure cultural diversity and media pluralism in the
  area of digital television. Directive 95/47/EC provided an initial
  regulatory framework for the nascent digital television industry
  which should be maintained, including in particular the obligation to
  provide conditional access on fair, reasonable and non-
  discriminatory terms, in order to make sure that a wide variety of
  programming and services is available…”

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EU Competencies in Respect of Media Pluralism and Media Freedom: Legal Overview

  • 1. Legal overview Paula Gori, CMPF 29 October 2012, EUI, Villa la Fonte
  • 2. Is there space for intervention? • June 2012. Vice-President N.Kroes affirmed that: “Currently the EU does not have the legal competence to act in this area [media pluralism] as part of its normal business. In practice, our role [of the EC] involves naming and shaming countries ad hoc, as issues arise.” • Art.5(3) TEU “Under the principle of subsidiarity, in areas which do not fall within its exclusive competence, the Union shall act only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States, either at central level or at regional and local level, but can rather, by reason of the scale or effects of the proposed action, be better achieved at Union level.”
  • 3. The main steps / 1 • 1974. Sacchi Case: “…a television signal must, by its nature, be regarded as provision of services” • 1980. Debauve Case: confirmed this principle in a cross-border broadcasting case and affirmed that discrimination by MSs against a broadcasting signal because of national origin is illegal. • 1984.Green Paper on the Establishment of a Common Market in Broadcasting, especially by Satellite and Cable and 1987. Green Paper on the development of the Common Market for Telecommunication Services • 1989. Television Without Frontiers Directive (TWFD): First harmonisation instrument for the free movement of TV services. It establishes the country of origin principle and refers only to traditional linear broadcasting services. It sets some minimum standards like the protection of minors and public order, consumer protection, the promotion of European works, the right of reply .
  • 4. The main steps / 2 • 1996. Commission v. United Kingdom: broadcasters come under the jurisdiction of the Member State in which they are established • 1997. VT4 Ltd v. Vlaamse Gemeenschap and the revised version of the TWFD: in the event that a broadcaster is established in more than one MS, it falls under the jurisdiction of the MS in which it has its centre of activities (where programming decisions are taken) • 1999. Communication on the Future of European Regulatory Audiovisual Policy: “…regulatory policy in the sector is aimed at safeguarding certain public interests, such as cultural and linguistic diversity, the protection of minors and consumer protection…” • 2005. Liverpool Conference : media pluralism still is responsibility of MS • 2007. Audiovisual Media Services Directive (AVMSD)
  • 5. The AVMS Directive / 1 Rapid changes caused by the technological developments Same legal basis as for the TWFD, namely the free movement of services The scope of application has been broadened to non-linear services : it covers all services with audiovisual content irrespective of the technology used to deliver the content. - Linear services: Programmes provided by a media service provider at a scheduled time and watched simultaneously by viewers - Non-linear services: Programmes users select from a catalogue offered by the media service provider, to watch at their own convenience. All media services have to respect a basic tier of obligations in some specific areas: identification of media services providers, prohibition of incitement to hatred; accessibility for people with disabilities; qualitative requirements for commercial communications; sponsoring and product placement. However: two – tier system: stricter regulation for linear services
  • 6. The AVMS Directive / 2 “Audiovisual media services are as much cultural services as they are economic services. Their growing importance for societies, democracy — in particular by ensuring freedom of information, diversity of opinion and media pluralism — education and culture justifies the application of specific rules to these services” (Recital 5) Art.5. Introduces some transparency elements stating that the media service providers shall make easily, directly and permanently accessible to the recipients some information such as: the name of the service provider, the geographical address, its details (including email and website), the competent regulatory or supervisory bodies. Recital 10: “…Bearing in mind the importance of a level playing-field and a true European market for audiovisual media services, the basic principles of the internal market, such as free competition and equal treatment, should be respected in order to ensure transparency and predictability in markets for audiovisual media services and to achieve low barriers to entry.” Recital 12: “…that regulatory policy in that sector has to safeguard certain public interests, such as cultural diversity, the right to information, media pluralism, the protection of minors and consumer protection, and to enhance public awareness and media literacy, now and in the future.”
  • 7. Public Service Broadcasting / 1 Instrument to safeguard media pluralism and freedom – 2000 Communication of the EC on Services of General Interest in Europe “…the broadcasting sector has, since its inception, been subject to specific regulation in the general interest. This regulation is based on common values such as freedom of expression and the right to reply, pluralism, protection of copyright, promotion of cultural and linguistic diversity, protection of minors and of human dignity, consumer protection…” PSB is seen as an instrument to ensure the coverage of a number of areas and the satisfaction of needs that private operators would not necessarily fulfill to the optimal extent. (COM 2001/C 320/04)
  • 8. Public Service Broadcasting / 2 As a service of general interest it is covered by Article 106(2) TFEU as interpreted according to the Amsterdam Protocol on Public Service Broadcasting (1997): “… the provisions of the Treaty establishing the European Community shall be without prejudice to the competence of Member States to provide for the funding of public service broadcasters insofar as such funding is granted to broadcasting organisations for the fulfilment of the public service remit as conferred, defined and organised by MS, and insofar such funding does not affect trading conditions and competition in the Community to an extent which would be contrary to the common interest, while the realisation of that public service shall be taken into account”.
  • 9. Public Service Broadcasting / 3 2 principal EC Communications (2001/C320/04 and 2009/C 257/01): set of guidelines and rules followed by the EC when it comes to decide state-aid cases in the PSBs domain. The control on PSBs by independent and external bodies is of high importance for the safeguard of pluralism (abuse)
  • 10. Internal Market Within the EU: different national legislations regulating the media an EU level is missing. This is not efficient in the light of the free movement of goods and services Lack of harmonisation: can harm the functioning of the internal market Moreover: consequences on the non-discrimination principle, as all citizens have the right to receive information irrespective of frontiers.
  • 11. Fundamental Rights • Article F.2 of the Treaty of Maastricht (1992): The Union shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950 and as they result from the constitutional traditions common to MSs, as general principles of Community law. • 2002: Charter of Fundamental Rights of the EU • 2009: Treaty of Lisbon: introduced the Charter into EU primary law
  • 12. Article 11 of the Charter/1 • (1) Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. • (2) The freedom and pluralism of the media shall be respected.
  • 13. Article 11 of the Charter/2 Art. 11 has to be combined with Art. 51 (subsidiarity principle) Art. 52 (conditions for limitations) and Art. 53: Nothing in this Charter shall be interpreted as restricting or adversely affecting human rights and fundamental freedoms as recognised, in their respective fields of application, by Union law and international law and by international agreements to which the Union, the Community or all the Member States are part, including the European Convention for the Protection of Human Rights and Fundamental Freedoms, and by the Member States’ constitutions.
  • 14. Article 10 of the ECHR • 1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. • 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.
  • 15. ECHR • Committee of Ministers • Parliamentary Assembly • Committees of Experts • ECtHR This corpus of activities is a point of reference at a national, European and international level – Although most part is not legally binding (resolutions) it can be relevant for the interpretations of the ECHR as it is a direct manifestation of the practice of MSs (Mastroianni) The ECJ and the Commission repeatedly refer to such corpus.
  • 16. The Telecommunications Package/1 • Electronic communications networks: resource through which content is delivered • 2002- Electronic Communications Regulatory Framework A General Framework Directive introducing a European framework for electronic communications networks and services + 4 more specific directives: Authorisation; Access; Universal Service; Privacy and Electronic Communications
  • 17. The Telecommunications Package/2 • Scope (Art.1 Framework Directive) : This Directive establishes a harmonised framework for the regulation of electronic communications services, electronic communications networks, associated facilities and associated services. It lays down tasks of national regulatory authorities and establishes a set of procedures to ensure the harmonised application of the regulatory framework throughout the Community.
  • 18. The Telecommunications Package/3 • Art.8 (1) Framework Directive: “…National regulatory authorities may contribute within their competencies to ensuring the implementation of policies aimed at the promotion of cultural and linguistic diversity, as well as media pluralism.” • Recital 10 Access Directive: “Competition rules alone may not be sufficient to ensure cultural diversity and media pluralism in the area of digital television. Directive 95/47/EC provided an initial regulatory framework for the nascent digital television industry which should be maintained, including in particular the obligation to provide conditional access on fair, reasonable and non- discriminatory terms, in order to make sure that a wide variety of programming and services is available…”