Prof. Roberto Mastroianni EUI Centre for Media Pluralism and Media Freedom Policy Conference, October 29th, 2012 European Union Competencies in Respect of Media Pluralism and Media Freedom http://cmpf.eui.eu/events/policy-conference.aspx

1. The Standards of the
Council of Europe and
an overview of the
case law of the ECJ
Prof. Roberto Mastroianni
EUI Centre for Media Pluralism and Media Freedoms
Policy Conference, October 29th, 2012
European Union Competencies in Respect of Media Pluralism and Media
Freedom 1

2. Freedom of Expression in International
and European Law
• Freedom of expression, the free flow of information, and freedom
and pluralism of the media as fundamental human rights :
– In international documents: the Universal Declaration of Human
Rights (UDHR, 1948, Article 19) and the International Covenant on
Civil and Political Rights (ICCPR, 1966, Article 19).
– In Europe: Article 10 of the European Convention on Human Rights
(ECHR, 1950). The European Union Charter of Fundamental Rights
(2000). The Charter is the only instrument to make explicit reference
to media pluralism.
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3. European Standards and EU
Competencies
• The importance of the general standards in the definition of EU
Competencies in the field of Media Pluralism
• Once the “legal basis” is established according to the Treaties
provisions, ensure compliance with:
– the general principles governing the exercise of EU competencies
(subsidiarity and proportionality);
– the constitutional implications of the media sector: fundamental
principles as codified in arts. 2 and 6 TEU, in particular respect for
human rights as guaranteed by the EU Charter of Fundamental Rights -
art. 11), the ECHR and the constitutional traditions common to the
Member States.
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4. European Standards and EU
Competencies
• Reference to the ECHR as a source of interpretation of
the EU Charter provisions (art. 52, par. 3).
• The European standards mandatory for EU legislation
are those enshrined in the ECHR as interpreted by the
Strasbourg Court.
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5. The Council of Europe as the elective
forum
• The Council of Europe is the elective forum in terms of
protection of fundamental rights in the European
continent.
• The ECJ, as well as many national constitutional courts,
have increasingly relied upon rulings by the Strasbourg
court and have made several references to the text of
the ECHR as interpreted and applied in its own context.
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6. The Strasbourg Court’s approach
• Evolutionary interpretation of Article 10 ECHR so as to
highlight the importance of the right of everyone to receive
information in a pluralist context not influenced by
the presence of dominant positions.
• The Court accepted the principle, framed in terms of a
constitutional tradition common to European countries, that
the general rules of competition law cannot act as an effective
barrier against the creation of dominant positions in the
markets of mass communications.
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7. The Strasbourg Court’s approach
• Legitimacy of ex ante intervention (public authorities
interference) in the freedom to inform:
– structural limits to the access to the media through a licensing
system, and
– restrictions on media ownership, if necessary to protect the “right
of others” (Article 10, para 2), namely that of citizens to a
pluralistic range of information as well as of that of other (existing
or potential) broadcasters (so called external or structural
pluralism).
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8. The Strasbourg Court’s approach: the
Centro Europa 7 judgment
• In Centro Europa 7 (7 June 2012), the European Court of Human
Rights recapitulated the general principles established in its case-
law concerning pluralism in the audiovisual media, also taking into
account the text of various Resolutions and Recommendations
adopted by the political bodies of the Council of Europe.
– The Court stressed the fundamental role of freedom of expression in a
democratic society, in particular where, through mass media, it serves
to impart information and ideas of general interest, which the public is
moreover entitled to receive;
– It also underlined that such an undertaking cannot be successfully
accomplished unless it is grounded in the principle of pluralism, of which
the State is the ultimate guarantor. As a basic principle, there could be
no democracy without pluralism;
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9. The Strasbourg Court’s approach: the
Centro Europa 7 judgment
• A position of dominance would undermine freedom of
expression and freedom to impart and receive
information.
• It could lead to a situation where one group exercised
pressure on broadcasters and eventually curtailed their
editorial freedom.
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10. The Strasbourg Court’s approach: the
Centro Europa 7 judgment
• In addition to its “traditional” duty of non interference, a
modern reading of Article 10 brings to the conclusion that the
State has a POSITIVE OBLIGATION to put in place an
appropriate legislative and administrative framework to
guarantee effective pluralism.
• Providers need to have effective access to the market so as
to guarantee diversity of the overall programme content,
reflecting as far as possible the different opinions in society.
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11. Other Council of Europe legal texts
• Other documents (most of them not binding per se) are more
detailed on the proposed, concrete measures:
1 - European Convention on Transfrontier Television.
2 - Committee of Ministers Recommendations
– no. R (99) 1, on measures to promote media pluralism
– no. R (2003) 9 on measures to promote the democratic and social
contribution of digital broadcasting,
– no. R (2007) 2 of the Committee of Ministers to member states on
media pluralism and diversity of media content,
– no. R (2011) 7 of the Committee of Ministers to Member States on a
new notion of media
3 – Parliamentary Assembly resolutions
– Resolution 1638 (2008) – Indicators for media in a democracy
4 - Commissioner for Human Rights Reports and Discussion
papers
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12. The Luxembourg Court’s approach
• According to general principles, in the EU legal order the
principle of media pluralism:
– Is a parameter for the legitimacy of EU rules as well as
national legislation adopted in the scope of application of
EU law;
– is the main interpretative point of reference in the concrete
application of both categories of rules;
– is a cultural policy objective that can be considered as an
“imperative reason of public interest” capable of justifying
national measures restricting the internal market freedoms,
provided that such measures are proportional and do not go
beyond what is necessary to achieve the objective pursued
(See inter alia judgments of 25 July 1991, Gouda; 22 October
2009, Kabel Deutschland, 16 December 2008, Michaniki)
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13. The Luxembourg Court
• In conclusion, the application of different national
measures may give rise to obstacles to the internal
market freedoms which may be justified according to EU
law and can be removed by an EU legislative
intervention of harmonisation of national measures.
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14. To Sum up:
European standards
– Media pluralism. European standards require that
States must guarantee the right of individuals and the
public at large to have access to a pluralistic media
sector, especially in broadcasting.
– Diversity of ownership. States should ensure that a
sufficient variety of outlets and perspectives, provided
by a range of different owners, is available to the public.
– Freedom from political control. Allowing members of
the Government or of the Parliament as well as
government officials to control significant segments of
the national broadcasting sector is incompatible with
current European notions of freedom of expression.
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15. To Sum up:
European standards
– Competition law alone may not sufficient to protect basic
values which are decisive for democracy’s public discourse
(Council of Europe, Commissioner of Human Rights,
December 2011). General ban on the very existence of
“dominant positions” in the broadcast media market (not just
the “abuse”, as established in EU general competition rules)
– Securing the Independence of Regulators - the rules
governing regulatory authorities for the broadcasting sector,
especially their membership, are a key element of their
independence. Therefore, they should be defined so as to
protect them against any interference, in particular by political
forces or economic interests
– Importance of Public Service Broadcasting – A Visible
place should be reserved to public service media in the new
media landscape 15

16. Conclusions
• The case-law approach has intrinsic limitations, while the
challenges posed by media pluralism imperatives in both old and
new media require a legislative solution.
• A new EU directive for the approximation of national laws or a
Council of Europe Convention on trans-national media
concentrations (or both, following the example of the “television
without frontiers” approach in the eighties) could be the next
steps for a more profound and efficient protection of media
pluralism in Europe.
• Citizen initiative as a substitute of the European Commission’s
inactivity?
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17. My favourite slide
• Thanks for your attention!
roberto.mastroianni@unina.it
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